The "It's Not a Court Proceeding" Argument: The Left's Mob Mentality

I can't count how many times I have heard it during the Kavanaugh discussion: Someone points out the importance of due process and the presumption of innocence and the response is, "This is not a court proceeding. This is a job interview."

Uh huh.

Let's talk about the first issue, the presumption of innocence and due process. Why do these things characterize a court proceeding? Because they help assure that justice will be done. The consequences of a court decision are, in many cases, life-changing, and so we utilize rules that bring the greatest assurance of justice.

Of course a congressional hearing is not a court hearing, but does that mean its proceedings should not be just? Shouldn't the process of selecting a judge (who presides over court hearings, the whole point of which is justice) be just?

What exactly is the liberals' argument against justice?

You can have courtroom justice or mob justice. You can have the kind of justice you see in our justice system or you can have the kind of justice you see on The View.

In my opinion, anyone who doesn't believe that confirmation processes for judges should be just doesn't belong on a legislative committee that approves judges.

And a job interview? Yes, we all remember being asked by our prospective employers to submit our high school yearbooks for scrutiny.

The Witch Hunt Targeting a Christian Judge

The Wyoming Commission on Judicial Conduct and Ethics wants to remove a judge from her job and disqualify her for service anywhere in the Wyoming judiciary because she maintains a Biblical view of marriage:

The story began on a cold Saturday morning in December 2014. Shortly after the Tenth Circuit Court of Appeals declared Wyoming marriage statutes unconstitutional, a reporter from the Sublette Examiner called Judge Neely to ask if she was “excited” to perform same-sex marriages. It was only because she had accepted a part-time job as a circuit court magistrate that this question had any relevance at all. In that unpaid position, she was authorized, but not obligated, to solemnize marriages. She gave a perfectly reasonable reply. She said that if she were ever asked, she would help the couple find someone to do the job. However, she would “not be able to do” it herself. 

Based on this solitary exchange about a hypothetical scenario, the commission has been waging what they call a “holy war” against her for more than a year. They are not content to send her a letter clarifying what she should have done, nor even a letter of reprimand. Instead, they are leveling the greatest possible punishment allowable by law—and the implications of their arguments are chilling.One central allegation against Judge Neely is the charge of bias. The commission claims that merely by publicly affirming biblical teaching on homosexual acts, she immediately and irrevocably rendered herself unfit to judge fairly or impartially in any matter whatsoever.

Publicly affirming same-sex marriage is not bias, but publicly expressing your personal disbelief in it brings out the Tolerance Police in their steel-toed boots.

The commission makes much of a private letter in which she discussed a number of biblically named sins. The commission was so shocked that she would agree with the Bible that her church (Lutheran Church—Missouri Synod) was called “repugnant” in open court. Moreover, when the Alliance Defending Freedom asked to represent her, the commission filed additional charges against her for “affiliating with a discriminatory organization.”

Yes, this is happening in America--in the name of Tolerance and Diversity. Read more here.

Liberals practicing the very method of interpretation on the Constitutional procedure to replace Scalia that #Scalia despised

I have already addressed the Constitutional requirements of the President and Senate in regard to filling the now vacant seat on the Supreme Court in my previous post: The President is clearly obliged to nominate a replacement for Scalia, but the Senate is not obliged to confirm it.

There really are people out there who are silly enough to argue that the Senate is required to consent to whoever the president nominates. But that is clearly meaningless. If someone is required to consent, then it is not consent. Consent necessarily involves willful agreement. That's what the word, from the French, literally means: to feel together. If consent were required, then it would not be necessary at all. If that's what the Constitution meant, then it would just have said that the President gets to appoint. Period. End of story. 

Isn't it ironic that the people who want the Senate to roll over and play dead when Obama tries to replace Scalia use the very technique of textual interpretation that Scalia despised when applied to the Constitution (or anywhere else)? 

To a textualist, the meaning of the language governing the replacement of Supreme Court justices is fairly clear. But liberals think they have the right to make words mean whatever they want them to mean. "Marriage." "Family." "Child" (the literal meaning of the Latin fetus)—and to enforce their made-up meanings on everyone else.

I can just imagine what Scalia would have said about this, and it isn't pretty.

The Mitch Factor: How the Senate can block a recess appointment by Obama

In the wake of Justice Antonin Scalia's death, some of the talk on the news shows has been about what the President and the Senate can and can't do in regard to Supreme Court appointments. According to Article II, Section II of the Constitution--the Article that outlines the powers of the executive branch, the president ...

shall nominate, and by and with the Advice and Consent of the Senate, ... Judges of the supreme Court ... whose Appointments are not herein otherwise provided for, and which shall be established by Law.

Note that nothing here says that the Senate has to let Obama make an appointment. Obama can attempt it, and the Senate has ways under their rules, to block it. Nothing in this section prevents the Senate from doing it.

But then there's a provision that looks very ominous from a conservative perspective:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

This is the provision that has gotten some attention in the discussion over Scalia's successor, an option some are calling the "nuclear option": Obama can simply make a recess appointment to replace him and the Senate can't do a thing about it. 

But there are three things about this. The first is that it could have negative political consequences. All those liberals who are now talking about the obligation the Senate has to allow a debate on the President's nominee would have to do a complete about face, since the nuclear option here would prevent a debate as well. But, then again, liberals do about faces all the time.

Secondly, such an appointment would appear to be temporary: "by granting Commission which shall expire at the End of their next Session." So, even if Obama did make a recess appointment, the Senate would still have to confirm it, before a certain time. If Obama tries to do this, he will have to do it between Dec. 18 and the first week of January, 2017. But if he does this, the appointment will expire with about a week to spare at the end of the year, which is when the session ends. So even in this case, the appointment would only be for about a year. This is still bad for conservatives, but not quite as bad.

But it is the final consideration here which is the most significant because it is the most likely to actually happen. It is the way, which a friend of mine who is in a position to know these issues points out, that will prevent Obama from making any kind of recess appointment. It is this: the Senate simply does not go into recess. This is completely under the control of Sen. Mitch McConnell. He has to know this--and surely has already figured it out.

McConnell checkmates Obama. Watch it happen.

The Supreme Court is NOT "balanced" after Scalia's death

Jeffrey Toobin said on CNN this morning what liberals keep saying: that with Scalia's death the U.S. Supreme Court is evenly split between liberals and conservatives. And since it is now evenly split, the decision of who to replace him with is a debate over the ideological balance of a currently balanced Court. And since Obama is president and the Constitution gives him the right to appoint justices, he's got the right to tip it any way he wants.

Of course, this is nonsense. There is no "balanced Court" now. This is a fiction being pedaled by people who themselves want to push the Court further to the left than it already is. 

The Balanced Court Thesis is premised on the assumption that Justice Anthony Kennedy is a conservative.

This is the man who wrote the Obergefell decision which deprived states of the right to define marriage, a right they have always possessed and which was overturned in the face of countervailing precedent and on the absurd ground that the 14th Amendment required it. It was as politically liberal a decision as the Court has ever handed down. And it is far from Kennedy's only such decision.

The Court is not balanced 4-4, it is at least left-leaning and on many of the most important issues, it is imbalanced 5-3 in favor of liberals. Conservatives need to start pointing this out.

How Justice #Scalia 's death could change the presidential race

The news that U.S. Supreme Court Justice Antonin Scalia is dead comes at extraordinary time: right in the middle of a presidential campaign. For this to happen now will bring the discussion of who gets to form the court for another generation to the level it deserves.

The fact is that this issue--who will get to appoint a likely several justices--has not been a significant part of the discussion among presidential candidates as it should have been. Now it will. In fact, watch for it in tonight's debate. It could very well change the whole character of the race--in the primaries and in the general election.

And watch this benefit Ted Cruz, who not only graduated from Harvard Law School, but, as solicitor general of Texas, argued eight times before the Supreme Court. 

Oh, and watch Obama try to appoint a liberal successor to the conservative Scalia in the face of a Repbulican-led Congress. It will tell us a lot about Republican leadership there and how willing they are to fight for conservative values.

And it will tell us a lot about the consistency of liberals who, when a liberal justice dies, talk about the importance of keeping a "balance" on the Court.

Scalia: Government religious neutrality not Constitutional

U. S. Supreme Court Justice Antonin Scalia voices an obvious truth one could discover by simply reading the language of the First Amendment. From the Associated Press:

METAIRIE, La. (AP) -- Supreme Court Justice Antonin Scalia said Saturday the idea of religious neutrality is not grounded in the country's constitutional traditions and that God has been good to the U.S. exactly because Americans honor him. 

Scalia was speaking at a Catholic high school in the New Orleans suburb of Metairie, Louisiana. Scalia, who was appointed by President Ronald Reagan in 1986 is the court's longest serving justice. He has consistently been one of the court's ... more conservative members 

He told the audience at Archbishop Rummel High School that there is "no place" in the country's constitutional traditions for the idea that the state must be neutral between religion and its absence. 

"To tell you the truth there is no place for that in our constitutional tradition. Where did that come from?" he said. "To be sure, you can't favor one denomination over another but can't favor religion over non-religion?" 

He also said there is "nothing wrong" with the idea of presidents and others invoking God in speeches. He said God has been good to America because Americans have honored him.

Read more here.

In response, internet atheist P. Z. Myers, who moonlights as an amateur Constitutional scholar, says:

That’s right. I thought it was clear: the government doesn’t get to interfere in private matters of conscience. It’s a concept that really isn’t that hard to understand. There should be no federal bias in favor of Baptists over Catholics, or Christians over Muslims, or religious vs. non-religious — it’s just not their job. It’s worrisome that a Supreme Court justice thinks it is their job.

Sure. It's right there in the Constitution. It's in the subsection on Baptists, Catholics and Muslims. Let's see, let me find it ... Uh, I could have swore ... Hmmm.

We'll get right back to you on that.

The problem with prosecuting county clerks under current Kentucky laws

One of the things the critics of county clerks balking at issue same-sex marriage licenses don't seem to take into account is the current language of Kentucky's Revised Statutes, which have not yet been changed to accommodate the Obergefell decision. This brings up a number of questions.

If there is a right to same-marriage, then what obligation does that confer on county clerks. To the critics this seems clear, but I hardly think it is. Does a right automatically infer a commensurate obligation of some kind? How? And how does it do it when the actual statutory language doesn't yet reflect it.

Let me give one example. Which county clerk is responsible for issuing a marriage license? According to 402.080, "The license shall be issued by the clerk of the county in which the female resides at the time..."

So what if two men come to a county clerk and request a marriage license? Since neither is a female, is the county clerk in the county in which both or either of them reside responsible? Or can they get it anywhere? Is there any particular county clerk under these laws who is actually individually responsible?

If two women come to a county clerk and request a marriage license and they live in different counties, is there another clerk who could issue them the license?

This is just one issue. There are numerous others that have to await the legislature completely rehauling the law.

What does this say for how clerks who are refusing to marry can be prosecuted, since there is no statutory law which coherently lays out their responsibility in same-sex marriage situations?

What are a County Clerk's Obligations?

I am posting a comment from the comments section of one of my posts on the county clerk controversy that gets to some of the serious issues involved. It was a substantive post, so I thought I would bring it and my response out on the main blog:

Martin,
There are two types of duties that State Officials possess. The first is a ministerial duty, and the second is a discretionary duty. The Attorney General in Kentucky (and all other states to the best of my knowledge) has the discretion to appeal a trial court's finding that a law is unconstitutional. There is no affirmative constitutional duty to appeal such a finding if the Attorney General, in his opinion, believes the appeal will fail or that the law is otherwise repugnant or unconstitutional. There is a duty to defend the law at the trial court level (before Judge Heyburn in this matter) which the Attorney General did in this case. 

A ministerial duty is a duty in which there is no room for discretion. The most common example in law school is, ironically enough, filling out a form or putting a seal on a piece of paper. Issuing a marriage license is a ministerial duty. 

What the LEO was attempting (albeit awkwardly) to say is that it is a false equivocation to compare a clerk's failure to perform a ministerial act with the Attorney General's lawful and discretionary choice not to appeal a finding that the marriage amendment violated the federal constitution. 

As someone who has published logic textbooks, you are obviously very capable and very good at critical thinking. Therefore, I find it impossible to believe that you are unable to grasp the distinction between ministerial and discretionary acts. As someone who leans left on the gay marriage issue, I will freely admit that Kennedy's opinion was lacking in solid jurisprudence.  

Can you not do me the same courtesy and admit that the comparison between the clerks refusing to issue same-sex marriage licenses and Conway's refusal to appeal is misleading at best and cynical at worst? 

My response:

Matt,
I am certainly not in a position to tell you what it is possible or impossible for you to believe, but the distinction you point to is not one that has been pointed out to me. And for that reason, I appreciate you pointing it out. It is certainly relevant to the discussion.
I have no problem with the distinction per se, but it seems to me that it doesn't necessarily resolve the issue. 

First, in regard to Conway's discretionary duty, you say that he would have the discretion whether to appeal the case. I don't deny that. But even you seem to think that that discretion is subject to some kind of criteria. You set them forth as whether he thinks "the appeal will fail or that the law is otherwise repugnant or unconstitutional." I would be curious to know where you get these criteria. Are they in the Kentucky Constitution? Is there some case law that establishes these criteria as judicial doctrine on these issues? I'm not accusing you of making them up, but I really don't know by what authority you assert them and would like to know. 

But for argument's sake, let's assume them. On the first criterion--whether he thinks an appeal will fail--seems a pretty weak one to me. Whether a case is likely or unlikely to be won seems like a rather subjective criterion. In all cases there is a winner and a loser--and the percentage breakdown is obviously about 50/50. I imagine in a lot of those cases the parties have some idea of the probability of winning and losing. I am just wondering what happens if all the 

In fact, doesn't that criterion amount to a self-fulfilling prophecy? The refusal to defend these laws may be based on a subjective judgment of probability of an appeal being successful, but such a refusal will most certainly affect the probability that such an appeal would be unsuccessful. If those ostensibly responsible for defending these laws decide not to defend them, doesn't that increase the probability that their side in the case will lose? And won't the spectacle of multiple instances of this further increase that probability? In fact, isn't this exactly what happened on the marriage issue? Whatever the chances an appeal would not be successful, the refusal to file it would increase the chances of its not being successful, and it seems to me the AG's job is to increase the chances where he has the power to do so. And he could have done this by filing an appeal. 

Not that it is dispositive here, but I just wonder how this would work out in a military context. What happens when your chances of losing are high? You just give up? I can think of a number of battles that would have turned out very differently had this criterion been observed. 

Conway certainly did say that Heyburn was right and that "these laws will not likely survive upon appeal" and that he would not "waste the resources of the Office of the Attorney General pursuing a case we are unlikely to win." But there are several things about this that make it a pretty weak excuse. 

The first is the whole financial reason he gives. For one thing, what I want to know is how much more the state spent defending the law with outside counsel than it would have if he had done his job.  

And secondly, I want to know how our showing up unexpectedly at several of the meetings between Conway's junior attorneys and Heyburn (Conway himself didn't bother to show up for any of the meetings) during the time he was purportedly actively defending the law--meetings in which his staff clearly had been directed to tred water affected Conway's decision--affect his decision. Even Judge Heyburn seemed to get impatient with them, and in one case clearly expected them to ask for a stay, and when they just sat there, looking at each other and shrugging their shoulders, Heyburn just did it himself--doing their job for them. 

It was pretty pitiful. 

Then there was Conway's brief in the original case, which a number of attorneys I talked to thought was simply badly done. Several thought they were intentionally bad. Even one attorney supportive of the plaintiff told a reporter that he thought the briefs signaled that Conway was opposed to his own case. 

I'm trying to figure out how pretending to defend a law but actively undermining your own case can be justified under any circumstances. 

I'm not saying that he couldn't do what he did: Obviously he could because he did. I'm saying he shouldn't have done it, partly because his reasons for not doing his discretionary duty were not convincing, and partly because he was serving in an office he campaigned for on a platform that included opposition to same-sex marriage. It wasn't like he didn't know what he was expected to defend going into his position. 

In regard to his ministerial duty, I would again ask for the basis upon which you make this distinction and why it applies to county clerks and not attorneys general. Why, in other words, are filling out forms and putting seals on documents ministerial and not discretionary? It's not a part of their oath of office (like Jack's obligation to defend the Kentucky Constitution was), so what is it? 

And, again, granting again your assumption (unestablished so far), is this ministerial duty to be discharged under all circumstances? To use an admittedly extreme example, if I am a clerk in Germany in the late 1930s and early 1940s, am I morally bound to sign the documents that are involved in sending Jews to the concentration camps? Again, I admit this is extreme, but it does establish that there is some point at which a person is relieved of his obligation to perform his ministerial duties, and the question therefore becomes on which side of the line violating your religious convictions falls (However far away they may may not be from sending people to concentration camps on the scale of moral terpitude).  

You simply assume that it falls on one side of the line, but you do not say why.
I appreciate your admission about Kennedy's opinion and the intelligent discussion starter on this issue. And unless you have an objection, I'm going to post your comment and my response as a separate post on the blog tonight because I think your points worthy of more attention.

You can read the original article and the rest of the comments here.

Even some liberals admitting Supreme's decision on same-sex marriage a "logical disaster"

Even some liberals admitting Supreme's decision on same-sex marriage a "logical disaster"

When all of the partying over the liberal's political victory in the Obergefell v. Hodges decision abates, they're going to realize an ugly truth: the majority decision by Justice Anthony Kennedy is an intellectual embarrassment.

Granted, this realization will take a while, since contemporary liberals care as little but the Constitution actually says as the five justices who just rewrote it. But, although they really don't care about the Constitution, they at least try to keep up the pretension of being rational.

If conservatives play it right, they can hang this albatross around the liberal neck.

Here is Brian Beutler, writing in the liberal New Republic in an article titled, "Anthony Kennedy’s Same-Sex Marriage Opinion Was a Logical Disaster":

Outside of academic specialties, historic Supreme Court decisions aren’t generally taught as logical treatises, but as watershed moments, which is great news for Kennedy because his opinion in Obergefell is, logically speaking, kind of a disaster.

Read more here.

Family Foundation Press Release: State county clerks should not have to issue marriage licenses to same-sex couples

FOR IMMEDIATE RELEASE

June 29, 2015   

LEXINGTON, KY— "If it was okay for Jack Conway to do it, it should be okay for county clerks," said a spokesman for the group that pushed for Kentucky traditional marriage law that was struck down by Friday's U. S. Supreme Court decision. On Friday Gov. Steve Beshear told county clerks across the state that they were required to issue marriage licenses to same-sex couples in defiance of Kentucky's Constitution. The Family Foundation said today that county clerks whose conscience would be violated by following the Governor's order should consider their options.

"There are county clerks out there who have a religious objection to same-sex marriage," said Martin Cothran, senior policy analyst with the Family Foundation. "They should be able to do what our own attorney general did last year when he refused to defend Kentucky's marriage law on conscience grounds. County clerks have consciences too."

In fact, said Cothran, county clerks are on more solid ground than Attorney General Conway because they would not have to violate their oath of office to refuse to issue such licenses. "While Jack Conway violated his oath of office in not defending Kentucky voters, county clerks would actually be honoring theirs. County clerks take an oath to both the federal and state constitutions. The U.S. Constitution nowhere says anything about same-sex marriage and the Kentucky Constitution expressly prohibits it. In refusing to issue licenses, they would actually be complying with the constitutions to which they swore their oaths."

"If the Governor is so concerned about public officials doing their duty, why didn't he write the same kind of letter to Jack Conway that he wrote to county clerks?" asked Cothran.

Cothran also pointed out that there is 25-day period following Supreme Court decisions in which a request for rehearing can be filed, a technical fact that could also affect what county clerks can do.

###

Scalia: "No social transformation without representation"

U.S. Supreme Court Justice Antonin Scalia, from his dissent in the Obergefell v. Hodges decision striking down marriage laws in all 50 states, on just how unrepresentative of America the elite judges who now rule our country are:

Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular con­stituency is not (or should not be) relevant. Not surpris­ingly then, the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single South-westerner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.

Read the rest here.

My appearance on last night's PBS Nightly News

Is the research in support of same-sex marriage junk science?

On the big screen behind the balls of fire is the face of the big man telling you in a scary voice that scientific research supports the idea that children do just as well in same-sex marriages as in families with a biological mother and father. But Todo has pulled the curtain back and it turns out that all the pyrotechnics hide an uncomfortable truth: It's not true.

Like so many other claims that are "research-based," the claims of same-sex marriage advocates that science shows that children raised by "married" gay parents are just as well-served as children in families headed by the child's natural parents turn out to be based on questionable evidence.

Here is Gene Schaerr in the Daily Signal, commenting on the evidence offered by the politically compromised American Psychological Association and the American College of Pediatricians:

... [D]ozens of studies cited to support the so-called “scientific consensus” that the American Psychological Association claims, only eight meet scientific standards for population inference. The rest tell us nothing. 

Of these eight, the four older ones found no disadvantages for children raised by same-sex couples compared to other family structures. But as the recent American College of Pediatricians amicus brief shows, all four studies suffer an incurable flaw:  about half (40-60 percent) of the children they report as being raised with same-sex parents are actually children with opposite-sex parents, either because of coding errors, or problems with the census data on which the studies relied.

In the end, this “dirty data” problem either invalidates their findings, or makes relying on them extremely problematic.

This leaves only four studies that are methodologically sound. And as the American College of Pediatricians brief shows, all four—the four most recent—find that children do not fare as well when raised by same-sex couples as when raised by married, biological parents.

To the contrary, such children often experience significantly higher levels of events or conditions such as being arrested, using marijuana, being depressed, having a learning disability or other psychological or developmental problem—and are less likely to graduate from high school.  As adults, they are more likely to be unemployed, receive public assistance and to have an extramarital affair.

The fake evidence hides an ideology (a belief system impervious to evidence). Read more here.

Is Genderless Marriage a Constitutional Right? More excerpts from Family Foundation's Supreme Court brief

More excerpts from Stan Cave's Family Foundation's brief in the Supreme Court case to be argued later this month:

In short, the claimants' argument is that children do not and have never needed a father and a mother, that genderless marriage is a constitutionally protected right and that State laws which do not recognize that right are unconstitutional. Such arguments are self-centered and selfish in their disregard for children. They are also contrary to well-settled precedent and the fact that the Fourteenth Amendment does not require States to recognize marriage generally and same-sex marriage specifically.

What Same-Sex Marriage Denies Children: Excerpts from Family Foundation's Supreme Court Amicus Brief

We will be running excerpts from The Family Foundation's amucus brief as we approach the oral arguments on Kentucky's Marriage Protection Amendment before United States Supreme Court on April 28. In this first excerpt, Family Foundation attorney Stan Cave explains what the case is really about:

This case is about marriage, parenting and children. Same-sex marriage withholds either a father or a mother while telling the child that it does not matter—that it is all the same; but it is not the same. Gay marriage not only redefines marriage, it also redefines parenting. Same-sex marriage purports to normalize a family structure that necessarily deprives children of something precious and foundational—either a father or a mother. Gay marriage denies children something they long for while at the same time telling children they do not need what they naturally crave. Claimants say it will be okay—but it is not.

Do our rights come from the government—or God?

The takeover of state marriage policy by the federal courts in the name of the U.S. Constitution (which gives federal courts no license whatsoever to do so) is now revealing itself for what it is: a wholesale rewriting of this nation's founding principles.

In a debate on CNN last Thursday, Chris Cuomo responded to Alabama Chief Justice Roy Moore, who said, "Our rights do not come from the Constitution, they come from God." Cuomo responded, "Our laws do not come from God and you know that,” he said. “They come from man. … Our rights do not come from God."

Cuomo, apparently innocent of such documents as the Declaration of Independence or for that matter John F. Kennedy's First Inaugural Address, or Martin Luther King, Jr.'s "Letter from a Birmingham Jail," all of which affirm the view Chief Justice Moore voiced.

In order to hijack the Constitution to conform with their ideological predilections in opposition to the principles upon which it was written, you have to change those principles. And in this case, that means changing the very historical foundation from which rights have always been considered to be derived.

The thing about liberalism (and I mean to include libertarians here, since they are simply right-wing liberals) is that its political philosophy collapses into "might makes right" absurdity.

Here is what Cuomo said in response to Chief Justice Moore's assertion (consistent with this nation's founding principles): "That’s your faith, that’s my faith. But that’s not our country. Our laws come from the collective agreement and compromise.”

For one thing, Cuomo shifts from "rights" to "law." But it doesn't matter. Neither rights and the justice of a law can be determined outside the context of natural law.

The distinction between the unwritten and written law (or what are often referred to as the natural and positive law, depending on who's talking) goes back to ancient times. Both Aristotle and Plato articulate the distinction. It is only ignorant television commentators who obfuscate it. It is a distinction between a transcendent law and a law made by men. And the laws made by men are judged by the transcendent law--there is no other way to judge them.

If a law violates a right, it is unjust. And whether a particular right exists or what it consists of cannot be determined within the system of law itself. Unless there is a transcendent law above the man-made law, there is simply no way to say whether a law is just or not. If there is no transcendent law, then saying a law is just or unjust doesn't even make sense. Outside the context of a transcendent law, the question of the justice of a man-made law quite literally has no meaning.

If the only ground for rights (or law, if you prefer) is our "collective agreement and compromise," then the basis for rights is only as deep--or shallow--as our own shifting opinions.

If there were no transcendent grounding for rights, then there could never be any criticism of any "collective agreement or compromise." If, for example, the Nazis were able to convince people to sign on to a "collective agreement," there would be no stance outside that agreement from which to judge it, since, according to people like Cuomo, it's legitimacy derives from itself.

Cuomo believes our rights come "from government." Okay. Which government? The United States government? The Cuban government? The North Korean government? The Russian government? The government of the Third Reich?

Despite the naive rhetoric of people like Cuomo, no sane person really disbelieves in the natural law. But for liberals it is a convenient form of demagoguery to attack it. In doing so, they count on a public they have rendered ignorant by the bad public schools they support and a mind-degrading popular media which they largely control.

This is the cost that liberals must pay for wanting to say that rights are simply what they say they are, and the fact that they are not willing to admit that that is the cost they must pay is simply another measure of how shallow--and dangerous--they are.

HT: The Public Discourse

Roy Moore is Right: It is the Supreme Court, not Moore, who is showing disdain for the law

Are you showing disdain for the rule of law if you refuse to cooperate with a body that shows disdain for the rule of law?

The New York Times says the following about Alabama Chief Justice Roy Moore's ... "The actions of Alabama’s demagogic chief justice, Roy Moore, show an outrageous disdain for the rule of law."

Really? Then what is the U.S. Supreme Court doing?

If anyone has shown "disdain for the law" it is the Supreme Court itself. There is literally nothing in the Constitution that justifies the Court in striking down the right of states to define marriage. In fact, Justice Anthony Kennedy, in his majority opinion in Windsor v. United States just last year—confused as it otherwise was—underscored the fact that states have exactly this right.

But now the Court, Kennedy at its head, is prepared not just to go beyond the "equal and coordinate" powers it was granted in the Constitution of 1887 it is about to violate, but is getting ready also to contradict its own statements in the decision it rendered only a little more than a year ago.

Anything is permissible in the cause of cultural disintegration.

Those who argue that the Court has the right to do what it is now about to do—and this, unfortunately, includes many conservatives—cannot find their reason in the Constitution itself. In fact, you will notice, if you read carefully, that they don't even attempt it. The only justification they do or can offer is that the Court itself says so: How do we know the Court has the right to do what it does? Because the Court says so.

And where, pray tell, does the Court derive the authority to determine its own power? Itself, of course. The proponents of this imperial view of the Court don't—and can't—justify this view of the Court's absolute Constitution authority on the basis of the language of the Constitution; it can only justify it by appeal to judicial rulings—rulings written by the Court.

It is an infinite jurisprudencial regress. In any other circumstance this would be considered completely circular reasoning, and if this kind of reasoning were being used to bring about conservative legal change, you can bet your bottom dollar that the New York Times would be pointing it out--and backing whoever was serving in the role of the liberal version of Roy Moore.

Under this view of the Court--that it is some kind of oracular body, causa sui in the derivation of its authority--it can literally justify anything it rules without rational justification. Not that such justification is not offered; it is. But that is only because the Court must keep up appearances.

By definition (this one, anyway), the Court can do no wrong.

The weak case for the Imperial Court (what Justice Antonin Scalia calls the "Black-Robed Supremacy") is that it is bound--not by the Constitution--but its own precedent. The strong case is that it is bound by nothing at all, except itself. It is this latter view we are seeing in all its malignancy now, as it prepares to defy its own precedent in Baker vs. Nelson which found there is no Constitution right to same-sex marriage.

Worst of all, under the Court's self-authorized view of itself promoted in self-serving places like the New York Times, there is literally no recourse if the Court abuses its Constitutional authority. There is no corrective because, by definition, there can be nothing to correct in an institution that defines what legal correctness is--unrestrained by actual Constitutional language.

Quite literally the only way to restrain the Imperial power of the Court is by doing exactly what Roy Moore is doing: by simply defying it.

There is precedent in our history for the defiance of authority, provided that those defying it declare the causes that impel them to do so. Among these are when forms of government become destructive of the rights the government is instituted to protect--among which is the right to be protected from abusive power.

When we become subject to "a long train of abuses and usurpations," it is our right, according to Jefferson, in fact our duty to "throw off such Government." and to provide "new Guards" for our future security.

While the Court can appeal to nothing in the actual language of the Constitution to warrant its historic decision to take away the right of individuals, through their elected representatives, to define marriage, Roy Moore has explicit warrant in the actual language of the Declaration of Independence for doing what he is doing.

More power to him.

A democratic republic was nice while it lasted: Same-sex marriage and judicial tyranny

A democratic republic was nice while it lasted. Here is Pat Buchanan on the recent takeover of state marriage law policy by federal judges:

Do the states have the right to outlaw same-sex marriage? 

Not long ago the question would have been seen as absurd. For every state regarded homosexual acts as crimes. 

Moreover, the laws prohibiting same-sex marriage had all been enacted democratically, by statewide referenda, like Proposition 8 in California, or by Congress or elected state legislatures. 

But today rogue judges and justices, appointed for life, answerable to no one, instruct a once-democratic republic on what laws we may and may not enact.

Read more here.

Gays "politically powerless," says judge in succumbing to political pressure from gay rights groups

The Family Foundation just sent this out:

LEXINGTON, KY--"After charging that arguments in favor of traditional marriage were 'not those of serious people', Judge Heyburn goes on to argue that gays are 'politically powerless'," said a spokeman for The Family Foundation. The group helped pass the Marriage Amendment struck down today in Heyburn's decision, Love v. Beshear.

"If you want an example of how bad the reasoning is in today's decision striking down Kentucky's Marriage Protection Amendment," said Martin Cothran, senior policy analyst for the group, "just look at the judge's argument declaring gays a 'quasi-suspect class' for purposes of laws relating to discrimination. It's not pretty."

Says the judge: "[T]he Court finds that homosexual persons are 'politically powerless' within the constitutional meaning of this phrase."

"We're thinking this judge needs to get out a little more," said Cothran. "Or maybe he could just subscribe to a newspaper or possibly turn on the television, where he could see just how politically powerless are the people whose political power helped produce this decision."

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