The Indiana legislature once nearly passed a bill that would have made the value of pi to be 3.2.* Now it would be nice if they could really change the ratio of circumference to diameter of a circle to something so simple. It would be much easier to work with than the actual irrational number whose digits extend indefinitely. School work would be easier as would many endeavors in science and engineering. The problem of course is that Nature pays no attention to laws decreed by mere humans.
We might pass laws about the value of pi, about what we will allow gravity to do, about how nasty germs are not allowed to infect us. We could print those laws in books and distribute the books widely. Nature, however, would ignore those laws and we have not the slightest ability to enforce them. The effect of such laws on Nature would be exactly zero.
However any such laws would have an effect on us. Buildings constructed with the incorrect value of pi would not be reliable. Anyone trusting gravity to obey human law might take a nasty fall. Those who trust human law instead of good health practices would get sick.
Human law cannot overrule Nature. However attempts to overrule Nature can harm us.
Now all that is too obvious. Why should you worry about such things when there are no proposals to pass such laws today?
Are you sure there are no attempts to legislate Nature today? Actually there are, though the laws to be changed are laws of economics and human behavior rather than of science. The most flagrant current example is in Greece but there are attempts all over the world to legislate Nature.
The Greek problem is that many voters and public employees seem to think that their government can just give them what they want, ignoring where that comes from. Over half of the Greeks employed are on the government payroll. Their contracts call for great pay, benefits, and retirement packages. Furthermore they cannot be fired. More and more of them are becoming eligible to retire, plus the number of government employees who must be paid has grown. Those “entitlements” now exceed what the government can afford. The results are predictable.
Greece is so deeply in trouble that the European Union has to bail it out. Of course the EU doesn't want an indefinite commitment to pay for Greek ineptitude so the bail-out comes with strings attached. Greece must get its financial house in order, cutting back expenses to match resources. That is quite a reasonable demand. Without such measures the Greek expenses will just continue to grow and consume more and more EU resources.
How are those people reacting? Are they facing the fact that somebody has to produce the compensation they claim they should receive? Of course not, they are rioting and demanding a continuation of their benefits. They are demanding a change to economic law quite as impossible as the Indiana legislature's change to the value of pi.
What the Greek rioters ignore is the fact that economics is not about money, it is about goods and services. Governments may be able to create money by decree but they cannot do the same with goods and services. No human law will cause wheat to grow faster, clothing or housing to magically appear, or medical facilities and personnel to become available without cost to somebody.
The fact is that neither Greece nor any other country can long spend beyond its means. Spending on credit can be fun for a while but when the bill comes due the fun ends.
Nor is Greece the only country guilty of such profligacy. In fact the US has been borrowing and spending for years, mortgaging our future to China and the oil sheiks. Our creditors loan us money only because they see the probability of a good return on their investment. In general they do not like us and will happily sink us if it appears to be to their benefit to do so. Is this the kind of people we want to trust with our future?
Sadly the U.S. is following the same path as did Greece, they are just a bit farther down that path than we are. We've funded everything that seems like a good idea, without regard to ability to pay the entire bill. What will happen when the chickens of our excessive spending come home to roost? Will we continue to demand that the government ignore the laws of economics?
Or is there a better way? What if we started now to recognize the laws of Nature? To realize that economic laws are just as immutable as the laws of physics? To live within our means, even when we cannot fund everything we want to do?
The choice is ours. So are the consequences.
*The actual bill is somewhat more complicated and in fact intended for a different end. However even the simplified version here described is adequate for my purpose.
Showing posts with label law. Show all posts
Showing posts with label law. Show all posts
Friday, May 7, 2010
Monday, August 17, 2009
An Independent Judiciary?
We regularly hear about how important it is to have an independent judiciary. However that leaves out an important point: Independent of what? The idea behind judicial independence is that neither congress nor the president should control the judicial branch of our government. That is great, it is one of the checks and balances our founders built into the constitution. The judiciary should be free to judge according to the law and constitution. However judges should not be independent of that law and constitution.
Exhibit A for an independent judiciary is probably Franklin Roosevelt's 1937 attempt to stack the Supreme Court. That court had overturned some of his programs as unconstitutional, so he attempted to get congress to add more justices whom he would appoint. That failed, but Roosevelt was eventually able to appoint a majority of justices and get what he wanted anyway. He succeeded in removing the court's independence, at least temporarily. We are still living with the legacy of his court and the massive expansion of the federal government it allowed.
On the other hand, it sometimes appears that our judiciary is independent of the law and the constitution. That is not what was intended and it is dangerous to our freedom and to the rule of law. The constitution envisions not three separate governments but three branches of one government, each helping keep the others in check. When judges act with little regard for the constraints of law, they become a separate government – a government not accountable to the voters. That can allow them to take on aspects of a dictatorship.
A case from Clackamas County Oregon illustrates the point. In 2008 Russell Paul Hamblen was accused of rape, sodomy, and sexual abuse of minor girls. It looked like a good case for prosecutors, especially since his son and co-defendant had already pled guilty and been sentenced. Bail was set at $500,000. So far so good, that would likely keep a pedophile off the street – unless Judge Deanne Darling had her way. She ordered the state to post his bail! Her “reasoning” was that Hamblen should be free so he could help plan for the care of another son. There was nothing in the law or any precedent to support her order, she just made it up to suit her own belief.
Darling acted independently of other branches of government, but also independently of the law. Fortunately her order was overturned on appeal, but what if such an order were to come from the Supreme Court? There would be no appeal.
“But wait,” you say. “Surely no supreme court would ever act in that manner.” Are you sure about that? Consider the issue of homosexual marriage. In 2006 the New Jersey
Supreme Court ordered the legislature to pass a law allowing same-sex marriage or creating a similar institution for same-sex partners. So much for separation of powers, that court treated the legislature as a servant to be ordered around. Again the court was not only independent of the governor and legislator, but also of law and constitution. Other state supreme courts have likewise overruled constitutional law on this issue.
The U.S. Supreme Court? Surely that one is immune to such nonsense, is it not? No, it is not. Congress passed the Civil Rights Act of 1964 with the explicit promise that quotas would not be required. Yet today we have de facto quotas in many areas, mandated by the courts and approved by the Supreme Court. Though the court has backed off somewhat in its support of such quotas, they still effectively exist in many areas. Many businesses and state and local governments set out hiring and promotion “goals” for fear of being sued.
An even more frightening possibility is the desire of some justices to apply foreign law to the U.S. Though it has not yet become a majority view on the court, there are some justices who clearly want such law to be a factor here. They want to act independently of the constitution which clearly states, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land...” Nothing there about following the laws of European countries from whom we freed ourselves over 200 years ago. Yet Justices Kennedy, Ginsburg and Breyer seem to think they should look to foreign law for guidance. Justice Sotomayor, the newest justice, has in the past appeared to agree with that sentiment.
When judges look around for foreign law that supports their own prejudices, they are looking for a way to circumvent our own law and constitution. That places them in the position of dictators, ignoring the rule of law in this country. They thereby declare their independence from law and constitution. If Canada wants a law against criticizing homosexuals it may have such a law. If France wants a law against publishing anti-Islamic opinion, it may also have such a law. However those laws would pertain only to Canada and France, not to us.
This is an important reason why we must insist on judges who are committed to our constitutional form of government. They must have the integrity to put aside their own preferences and rule on the basis of our law and constitution. They must commit to independence from other branches of government but they must also commit to strict dependence on the law and the constitution. They are not independent rulers but are to be agents of the people according to the conditions set out in that law and constitution.
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Exhibit A for an independent judiciary is probably Franklin Roosevelt's 1937 attempt to stack the Supreme Court. That court had overturned some of his programs as unconstitutional, so he attempted to get congress to add more justices whom he would appoint. That failed, but Roosevelt was eventually able to appoint a majority of justices and get what he wanted anyway. He succeeded in removing the court's independence, at least temporarily. We are still living with the legacy of his court and the massive expansion of the federal government it allowed.
On the other hand, it sometimes appears that our judiciary is independent of the law and the constitution. That is not what was intended and it is dangerous to our freedom and to the rule of law. The constitution envisions not three separate governments but three branches of one government, each helping keep the others in check. When judges act with little regard for the constraints of law, they become a separate government – a government not accountable to the voters. That can allow them to take on aspects of a dictatorship.
A case from Clackamas County Oregon illustrates the point. In 2008 Russell Paul Hamblen was accused of rape, sodomy, and sexual abuse of minor girls. It looked like a good case for prosecutors, especially since his son and co-defendant had already pled guilty and been sentenced. Bail was set at $500,000. So far so good, that would likely keep a pedophile off the street – unless Judge Deanne Darling had her way. She ordered the state to post his bail! Her “reasoning” was that Hamblen should be free so he could help plan for the care of another son. There was nothing in the law or any precedent to support her order, she just made it up to suit her own belief.
Darling acted independently of other branches of government, but also independently of the law. Fortunately her order was overturned on appeal, but what if such an order were to come from the Supreme Court? There would be no appeal.
“But wait,” you say. “Surely no supreme court would ever act in that manner.” Are you sure about that? Consider the issue of homosexual marriage. In 2006 the New Jersey
Supreme Court ordered the legislature to pass a law allowing same-sex marriage or creating a similar institution for same-sex partners. So much for separation of powers, that court treated the legislature as a servant to be ordered around. Again the court was not only independent of the governor and legislator, but also of law and constitution. Other state supreme courts have likewise overruled constitutional law on this issue.
The U.S. Supreme Court? Surely that one is immune to such nonsense, is it not? No, it is not. Congress passed the Civil Rights Act of 1964 with the explicit promise that quotas would not be required. Yet today we have de facto quotas in many areas, mandated by the courts and approved by the Supreme Court. Though the court has backed off somewhat in its support of such quotas, they still effectively exist in many areas. Many businesses and state and local governments set out hiring and promotion “goals” for fear of being sued.
An even more frightening possibility is the desire of some justices to apply foreign law to the U.S. Though it has not yet become a majority view on the court, there are some justices who clearly want such law to be a factor here. They want to act independently of the constitution which clearly states, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land...” Nothing there about following the laws of European countries from whom we freed ourselves over 200 years ago. Yet Justices Kennedy, Ginsburg and Breyer seem to think they should look to foreign law for guidance. Justice Sotomayor, the newest justice, has in the past appeared to agree with that sentiment.
When judges look around for foreign law that supports their own prejudices, they are looking for a way to circumvent our own law and constitution. That places them in the position of dictators, ignoring the rule of law in this country. They thereby declare their independence from law and constitution. If Canada wants a law against criticizing homosexuals it may have such a law. If France wants a law against publishing anti-Islamic opinion, it may also have such a law. However those laws would pertain only to Canada and France, not to us.
This is an important reason why we must insist on judges who are committed to our constitutional form of government. They must have the integrity to put aside their own preferences and rule on the basis of our law and constitution. They must commit to independence from other branches of government but they must also commit to strict dependence on the law and the constitution. They are not independent rulers but are to be agents of the people according to the conditions set out in that law and constitution.
If you like my blog, please tell others.
If you don't like it, please tell me.
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