Re: Bush vs. Gore: the triumph of Scholasticism?

Very impressive, Counselor (this is meant here as a term of respect
although elsewhere I have meant it jocularly when addressing members of
the Bar who I do not respect, at the local bar).

As a philosopher, I would like to suggest a generalization of Holmes'
positivism. Not only is law what the judges say it is, it is also the
ordinary citizen's going to law in good faith and attempting, against
enormous odds as you show below, to get her rights.

But this means that if in America we kick back and give up then the law
is that of a rogue nation, because we cannot appeal to the UNCHR when
the policemen throw us in the Paddy wagon.

An ancient philosopher would say "the life of the law is in its
obedience". In ancient China, to ensure the rule of Law, the emperor
had to put his friends to death when they were objectively and in fact
in default.

Surprisingly, this would be an effective formulation today if the
wealthy and powerful felt beholden to obey, but practically, it has to
be generalized. Law is the factual way it commands our factual,
empirical respect and obedience (the 18th Amendment no law under this
rubric, and set 'em up Joe), and also how it protects "the least of us"
against the wealthy and powerful.

But under this formulation, the codex Americanis would be in fact a
list of prohibitions applying to the poor and middle class, and a blank
check for the rich. It would include such crimes as Driving While Black
and Sassing a Police Officer.

If we loudly and clearly assert our international human rights when
Officer Murphy throws our Irish ass in the Paddy wagon, the law comes
to life. This is because if we do so while not manifesting any cynicism
(which would include tones expressing respect for Officer O'Houlihan,
and no bad language) we are in fact initiating some damn sort of legal
process.

What I am thinking of here is the very real difference between "street
law" circa 1971 and today, because back then the logical and physical
possibility that the officer could be hauled before a civilian review
board through a process funded by genuine Legal Aid, would make Officer
Gilgallon behave his Irish ass.

A REAL legal positivism would take into account expectations.

No other than Nikita Kruschchev, at the 1956 Party Conference that
revealed Stalin's crimes, referred in fact to the guarantees of the
supposedly "dead letter" 1938 Soviet Constitution when he referred to
Stalin's "crimes".

I think you and I are in substantive agreement, Counselor. The
difference is that I can sit around and do philosophy of law whereas
you have a real job shoveling s*t and fighting a legal system dominated
by the wealthy and powerful, who have colonized our minds.

I recommend Geoffrey Robertson's CRIMES AGAINST HUMANITY for an English
look at the applicability of international law.

In theory, on March 19th 2003, I could have called the DC cop shop
"911" and got a cop to show up at the White House because I believed
then and I believe now that an attack on a UN member is the
international crime of aggression, which according to Dan Moynihan's On
the Law of Nations, and your brief, is a part of US domestic law.


Ken Smith wrote:
spinoza1111@xxxxxxxxx wrote:
Ken Smith wrote:
spinoza1111@xxxxxxxxx wrote:

(This is the level of discourse we *should* be having in misc.legal.)

Bush v. Gore, the 2000 decision that decided the first election of the
current President, was the application of the US 14th Amendment
formally, as opposed to substantively, in the Florida recount.

Some might say that the formal application of "equal treatment of the
laws" to a substantively unequal situation preserves inequality, and
this may have occurred in Bush v. Gore when the Court said that it
would be unfair to recount the counties with a close vote, without
recounting other counties.

In the formalistic reasoning of the Court, "the slippery slope"
appears as both an inferential rule and a logical fallacy. SS is a
valid rule when the policy adopted, being argued-against, can lead to
an uncontrolled result. SS is a fallacy if there are in substantive
practice obstacles ("trees on the ski slope") to the overgeneral
result.

Formalistic reasoning will often see SS because it is opposed to
substantive consideration of the "trees".

Bush v. Gore argues a slippery slope from allowing the recount,
mandated by the Florida supreme court, to proceed, to a long,
"uncontrolled" and "unfair" (under formalistic equal treatment)
recount.

But seeing the tree here means substantively taking into account the
fact that in the disputed counties there is demographically an almost
even balance between traditionally liberal voters likely to vote for
Gore (black voters, poor voters, and Hispanics other than upper class
Cubans), and Bush voters (middle class whites and Cuban exiles of the
upper classes).

This means to the "substantive" reasoner that a bright line can be
drawn using common sense around the disputed counties, and the count
mandated by the Florida SC could proceed.

However, contemporary American conservative legal reasoning of the sort
favored by the SC majority is averse to such reasoning which it views
with distaste as outside the law.

It seems to have an unwarranted macho pride in this narrowness but note
that the verbal distinction between substantive and formalistic
reasoning hardly appears in older texts. The verbal distinction exists
today because of the modern Court's insistence on original intent and
the reaction against the broad, substantive content of such rulings as
Brown vs. the Board of Education.

Quite before the Warren court, jurists ranged all over formal and
substantive rules and forms of reasoning with gay abandon and were
celebrated for their Holmesian and Brandeisian largeness in so doing.
Holmes was for example praised for determining how many generations of
imbeciles suffice in one decision.

But this was because for the most part, until 1937, the courts made
decisions agreeable to influential people.

Today, a neo-Scholastic narrowness and overriding of common sense and
decency by rules known to the judge and not to the victims of the
process is praised, and judges like Scalia and Alito repair to church
on Sunday to sing Hosannas in praise of a back to basics, in which
those basics are hypostatized rules.

Formalistic reasoning is itself the slippery slope because the reasoner
need not admit the trees. This is a convenience in maintaining class
and race boundaries because the reasoning will, in Isabella's terms in
Measure for Measure, follow as "it" draws, "it" being appetite. Not so
much what the judge had for breakfast as what his handlers want for
lunch, usually the ordinary slob's hopes.

Intriguing analysis, but it seems to miss the point. Modern judges
are mesmerizing monuments to mediocrity -- whose only saving grace to
those who put them into office is that they dance with the girl that
brung 'em. Do an analysis of every significant election dispute over
the past four years, and you will find an almost perfect correlation
between the winner in the dispute and the party that put them there.

ALL modern US judges? All judges in the world? Some judges? At least
one?

American judges, as a class [Judge Bork suggests that the phenomenon
is spreading worldwide]. There might be a few dinosaurs out there, but
for the most part, the current selection process weeds them out. Ever
since the Bork hearing, the main litmus test for appointment is that a
judge 'see things' the ruling party's way. I am hoping that Roberts is
for real (but not holding my breath about Alito):
___________________________________________________________________

As a Republican, I find Judge Alito profoundly unqualified for a seat
on the Supreme Court, albeit for somewhat subtle reasons. That he would
decide a case involving a mutual fund company he invests in is certainly
bad enough, but the fact that he broke his promise to recuse himself is
even worse. Likewise, while his representation to Reagan Administration
functionaries that he believed that the Constitution doesn't protect the
right to an abortion may or may not be problematic, his current attempts
to distance himself from it proves he will say or do anything to get the
job he wants. It is, in a real sense, the appearance of impropriety.
___________________________________________________________________

In actuality, these weary and sophisticated dismissals of the empirical
existence of a legal objectivity all too easily become part of the
phenomenon they criticize. How convenient this is in fact for judges
who would bend the law to fit appetite or an ideological program,
because the ordinary slob in fact assents to the impossibility of
objectivity.

Modern judges decide who they want to win, and routinely sodomize the
law and fabricate facts to get there. We don't have a judicial system
worthy of the name any more, any more than we have a Bill of Rights in
any more than name only.

Yeah, well, guess what. Against enormous odds, Chinese lawyers and even
some judges are using what legal protections exist in their "people's"
constitution and after persistent efforts have gotten some results.
Against enormous odds, poor and minority defendants are defended
against the death penalty in the US.

That's the problem: "Against enormous odds." It shouldn't be against
enormous odds -- the odds should be stacked in favor of the people, as
against the abuse of power by the government. We're no better off than
our fellowmen in Beijing, if those odds *are* as enormous as you say.

We have a Bill of Rights
___________________________________________________________________

Article 125 of the former Soviet Union's 1936 Constitution#
guaranteed Soviet citizens the freedom of speech and of the press. But
the Stalinist law courts never enforced those rights, and if you ever
dared to speak freely on public issues of the day, thereby angering your
betters in the government, you could have been denied the right to
engage in your chosen profession, subjected to a "psychiatric
examination" with a preordained outcome, branded as 'mentally unstable'
and eventually, sentenced to either a gulag or mental institution in one
of Andrei Vyshinsky's infamous "show trials." Stalin's judges were
knowing accomplices to this judicial travesty, never failing to find the
'facts' Vyshinsky needed to hear.
___________________________________________________________________

The Bill of Rights is just a piece of paper, and its highest and best
use these days is probably for smoking (iirc, it is hemp-based).

and to back it up the United Nations Declaration of Human Rights.

Not really. Have you ever *tried* to raise the International
Covenant on Civil and Political Rights in an American court? On account
of its almost universal ratification, it has become jus cogens law,
giving it a minimum status as federal common law. But that and a dollar
won't buy you a latte at Starbucks in this fascist Third World shithole
formerly known as America -- especially if you draw upon that increasing
pool of partisan Federalist judges. Here's an excerpt from a brief I
filed on that very issue:
______________________________________________________________________

ARGUMENT

I. ROPER V. SIMMONS AND JUDICIAL IMMUNITY

"International law is a part of our law," The Paqueete Habana, 175
U.S. 677, 700 (1900), and has been an integral part of our law since the
dawn of the Republic. E.g., Pennington v. Coxe, 6 U.S. 33 (1804).
International human rights law is invariably recognized in our courts,
Sosa v. Alvarez-Machain, 542 U.S. ___, 124 S.Ct. 2739, 2004.SCT.0000127,
¶ 100 (2004) (Versuslaw), with at least the status of federal common
law. Filartiga v. Pena-Irala, 630 F.3d 876 (2d Cir. 1980). The United
States Supreme Court reaffirmed this principle again in Roper v.
Simmons, 543 U.S. ___ (2005), in holding the juvenile death penalty to
be unconstitutional. But evidently, the Appellees# are pretending it
doesn't exist.

A. International Human Rights Law: "Not a Ceiling, But a Floor"

The key to understanding Roper is in Justice Scalia's wilting
dissent, wherein he accuses the Court of declaring "that the
Constitution has changed," and nullifying our country's reservations to
the International Covenant on Civil and Political Rights (ICCPR). Id.,
Scalia slip op. at 1, 16 (dissenting opinion). Scalia observed that the
basic premise of the Court's argument was "that American law should
conform to the laws of the rest of the world," attempting to refute the
premise by pointing out numerous instances where our law is
"distinctively American." Id. at 18. Yet, in every instance he cited,
American law granted more rights than recognized under jus cogens
international law.
If "international law" has no impact on our law, Justice Scalia's
objections to Roper are irrefutable. After all, if laws enacted by our
nation's legislatures provide the "clearest and most reliable objective
evidence of contemporary values," Penry v. Lynaugh, 492 U.S. 302, 331
(1989), and most death penalty jurisdictions# allow the execution of
juvenile offenders, it is silly to say we have reached a "consensus" to
the contrary. On the other hand, there's something intrinsically
embarrassing about our engaging in a practice so barbaric, even Saudi
Arabia won't do it.
It is said that the Bill of Rights is 'not a ceiling, but a floor.'
While individual state constitutions routinely acknowledge rights not
protected by federal law, e.g., Tattered Cover v. City of Thornton, 44
P.3d 1044 (Colo. 2002) (enhanced privacy rights for Coloradans), states
cannot deprive their citizens of rights guaranteed by the federal
Constitution. By the same logic, the Roper Court holds that, while our
Constitution acknowledges more rights than jus cogens international law,
it cannot deprive a person of rights recognized thereunder.

B. Is American Human Rights Law In the Basement?

Both the political and pragmatic logic of the Roper Court's position
are self-explanatory: It simply would not do for an American to have
less rights under law than his counterparts in China, Somalia, and the
former republic of Yugoslavia.
As noted previously, Opening Brief at 31-32, the ICCPR is an
'international Bill of Rights,' governing the relationship of a
signatory state to its citizens. And as it pertains to this appeal, it
expressly provides that a signatory state provide an "effective remedy"
to citizens whose rights have been violated, even if "the violation has
been committed by persons acting in an official capacity." Id. And as
the Federation of Bosnia and Herzegovina has ratified the ICCPR and both
optional covenants,# if a corrupt Bosnian judge were to deprive a
citizen of his rights, he would not only have an "effective remedy" but
also, a right to have his grievance heard by an independent world court.
Unless the ruling below is overturned, Ken Smith will not even enjoy
the same basic human rights as the average Ivan on the streets of
Sarajevo.
Prior to Roper, the United States was the only nation in the world
sanctioning the execution of juveniles, and "the weight of international
opinion" factored materially into the Court's decision. Roper., slip
op. at 21, 24. In closing, it declared, "the express affirmation of
certain fundamental rights by other nations and peoples simply
underscores the centrality of those same rights within our own heritage
of freedom." Id. at 25. International law is an integral part of our
law, which cannot be responsibly ignored.

C. International Law, the Common Law, and Judicial Immunity

Counsel for the Federal Appellees openly admits the most important
fact to remember about judicial immunity: it is a common law doctrine.
Federal Answer at 11.
As explained in more detail in the opening brief, on account of its
almost universal acceptance, the ICCPR is an authoritative statement of
jus cogens international law. As such, even if it isn't recognized as
an Article VI treaty, it enjoys the status of federal common law; this
Court is therefore compelled under a long line of Supreme Court
precedent to treat it as law. As appellate review no longer even
masquerades as an "effective remedy" as contemplated in the ICCPR, and
the law demands that an "effective remedy" be available, Smith is
entitled to a remedy in tort.
While it may be true that judicial immunity is essential to the
proper administration of justice, and that it should be granted as a
matter of public policy, that is a decision for Congress to make. All
this Court can legitimately do is declare the sense of the law, as
opposed to writing law. See, Heiner v. Donnan, 285 U.S. 312, 331 (1932)
("to enact a law under the pretense of construing one [is] a flagrant
perversion of the judicial power"). Thus, to the extent that the ICCPR
has superseded earlier common law, this Court is bound to follow it --
even if it means that it has to slaughter 'sacred cows' like absolute
judicial immunity. If this becomes problematic, judges must turn to
Congress for relief, like everyone else.
_______________________________________________________________________

It's an intriguing case, where I am challenging the constitutionality
of so-called "non-publication" rules (along the lines of Judge Arnold's
opinion in Anastasoff) -- which allow lower courts to disregard binding
precedent whenever they damn well feel like it. I am suing the feds for
refusing to provide a forum for the adjudication of grievances involving
the violation of rights protected by the ICCPR; if the ICCPR is of any
value in an American court, the State would be liable for the misconduct
of its agents (here, judges).

Does this case have a chance in hell? Theoretically, it is not only
sound, but the provision for a remedy is compelled by the ICCPR. But in
China West, that and a dollar won't buy you a latte at Starbucks. After
all, consider what happened in Pierson v. Ray. Those uppity niggers had
a case, but no one was going to provide them a remedy:
__________________________________________________________________

B. On The Death Of Stare Decisis

On April 11, 1967, eight Supreme Court justices, led by ultra-liberal
activist Chief Justice Warren, staged what could fairly be called a
judicial coup d'êtat. In defiance of the clearly expressed will of
Congress and every canon of judicial interpretation then known to law,
they seized power from the people -- in the simple act of declaring that
"every person" really meant "every person except us judges." Pierson v.
Ray, 386 U.S. 547 (1967).
Suddenly, it no longer mattered what Congress said, or even what it
intended. In that instant, our "law" was transformed into an
Alice-in-Wonderland world, where words only mean what a judge needs them
to mean on that day, at that time. To disregard the plain meaning and
intent of a statute without a compelling reason to do so would be, as
Justice Sutherland observed a generation before, "to enact a law under
the pretense of construing one ... a flagrant perversion of the judicial
power." Heiner v. Donnan, 285 U.S. 312, 331 (1932) (emphasis added).
But that is the only description of Pierson that can possibly be given.

To appreciate the irredeemably treasonous nature of Pierson, one must
review the rules courts have used since the dawn of the Republic to
interpret statutes enacted by Congress. First among them is the "plain
meaning" rule: the presumption that Congress really meant what it said
and said what it meant in the text of the statute. Connecticut Nat'l
Bank, supra. And when the terms of a statute are unambiguous, judicial
inquiry is presumptively complete.# Justice Cardozo adds that courts
may not "pause to consider" whether a better statute might have been
written, but are compelled to "take the statute as we find it." Anderson
v. Wilson, 289 U.S. 20, 27 (1933).
In pertinent part, the ubiquitous Section 1983 is as clear and as
unambiguous as any statute anyone could hope to write: "Every person
[who does X to Y is liable to Y in tort]." Had Congress intended to
exempt state judges from this section, it would have said something to
the effect that "This section shall not apply to judges." (A quick
search of the House of Representatives' data base reveals that the magic
words, "shall not apply," appears in 457 separate statutes in Title 42
alone!#) As Justice Frankfurter noted, the judge's only legitimate task
is "to ascertain the meaning of the words used by the legislature," for
to go beyond it, and rewrite a statute to his or her liking, is to
"usurp a power our democracy has lodged in its elected legislature."#
Where there are legitimate doubts as to what Congress intended, the
court is to examine the legislative history of a statute, to ascertain
whether the statutory language conveyed their intent. But as Justice
Douglas observed in his Pierson dissent, Congress had clearly intended
to abolish the common law rule of absolute judicial immunity in civil
rights cases:

Yet despite the repeated fears of its opponents, and the explicit
recognition that the section would subject judges to suit, the
section remained as it was proposed: it applied to "any person."
There was no exception for members of the judiciary.#

Moreover, Section 1983 is a remedial statute, which "should be
liberally construed to accomplish the purposes of [its] enactment."
Smietanka v. Indiana Steel Co., 257 U.S. 1, 2 (1921). Besides, if
"bribed judges" were part of the problem, exempting them from civil
liability would defeat the purpose of the statute, which was to provide
a swift and sure remedy for the liberated slaves (and their Republican
supporters) when their civil rights were violated. Accordingly,
Section 1983 meant what Congress said and said what Congress meant; if
state judges didn't like the outcome, their only legal recourse was to
petition the legislature. See, Crooks v. Harrelson, 282 U.S. 55, 60 (1930).

Chief Justice Warren justified his decision by claiming that "[t]he
legislative record gives no clear indication that Congress meant to
abolish wholesale all common-law immunities."# This begs the question
as to why Congress would need to make such an indication, given that any
law made "under the Authority of the United States, shall be the supreme
Law of the Land," U.S. Const. art. VI, cl. 2. After all, the drafters
of present-day Section 1983 lived in a time when Congress wrote laws to
remedy "defects" in the common law, Munn v. Illinois, 94 U.S. 113, 134
(1876) -- and judges dutifully interpreted them.# The statute was
clear, served a remedial purpose, was consistent with the legislative
history, and directly addresses the purported problem of "bribed judges"
in the Reconstruction South. To require a more explicit statement of
intent from a 19th-century legislature is an adventure in absurdity.

Pierson was a watershed event in the development of American law,
inasmuch as it established that judges were above the law. If a statute
said "X," a court could now say that it meant "not X," no matter how
clear the statute was and how obvious the intent. The courts now hold a
veto power over every legislative act, and can vent their spleen on
anyone with complete impunity.
__________________________________________________________________

> It's time to start to insist on it, not
only on our own behalf but also on behalf of the homes in Guantanamo,
most of whom are innocent.

We need to secure our own rights first.

The psychology, which usually is unable to conceal anger when in
describing the process uses "sodomize" and such words, is part of the
system

I don't attempt to contain my outrage. Nor should anyone. Perhaps
if the organized bar decided to grow a spine and some cojones, we
wouldn't be in the predicament we now find ourself as a people. But
don't expect any honor or character from the Bar any time soon. As
Professor Carl Bogus wryly observes:

Some people are more vulnerable to a lack of criticism than others,
and among the most vulnerable are judges. ... Saying that lawyers
treat the judges with deference failes to capture the interaction;
it is more accurate to say that lawyers bow and scrape. Some law-
yers have elevated fawning to an art form, pulling it off with
subtle elegance. But few tell a judge she is wrong.91

(If I have to become a slavering sycophant to become a lawyer, I
don't want the job. Ever.)

and an officer of the court. Scalia WANTS you to give up.

THIS IS A PUBLIC SERVICE ANNOUNCEMENT! KNOW YOUR RIGHTS!

First, you need to *KNOW* that you don't *HAVE* any "rights," but
only liberties, which can be taken away from you by the State at any
time and for any reason. And if your 'betters' in government decide to
use their power against you, there is basically nothing you can do about it.

But you ought to keep fighting for them, no matter what the odds.
For if we do, it may be that we'll never have to resort to rat poison in
the creme brulee (as Coulter the Barbarian recently suggested).


Nonsense prevails, modesty fails
Grace and virtue turn into stupidity
While the calendar fades almost all barricades to a pale compromise
And our leaders have feasts on the backsides of beasts
They still think they're the gods of antiquity
If something you missed didn't even exist
It was just an ideal -- is it such a surprise?

- Elvis Costello, "All this useless beauty"

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