The Problem With Justice

[PoliticalChic]

'Twould be wonderful if one could claim, simply, that our legal system is based on 'justice.'




1. The concept of 'Natural law', central to the founding of the United States, is based on the view that there are rights that simply accrue from being a human being. The U.S. Declaration of Independence states that it has become necessary for the United States to assume "the separate and equal station to which the Laws of Nature and of Nature's God entitle them."

Because of the intersection between natural law and natural rights, it has been cited as a component in the United States Declaration of Independence and the Constitution of the United States.

'Declarationism' states that the founding of the United States is based on Natural law.

Natural law is often contrasted with the positive law of a given political community, society, or state, is distinct from "natural law", which comprises inherent rights, conferred not by act of legislation but by "God, nature or reason."
Kelsen, Hans "General Theory of Law And State."

I believe that to be the case....but it is interesting to investigate both sides of the question.





2. The basis of natural law can be seen in the reference to ‘Divine’ in Declaration of Independence: 1)in first paragraph ‘Laws of Nature and of Nature’s God,’ 2) next paragraph ‘endowed by their Creator,” 3) Supreme Judge of the world, and 4) ‘divine’ Providence, last paragraph.

a. This is important because our historic documents memorialize a government based on individuals born with inalienable rights, by, in various references, by the Divine, or Nature’s God, or their Creator, or the Supreme Judge, or divine Providence. Since these rights are associated with each individual, they cannot be withdrawn, or subjugated to the will of a governing body.

3. The problem arises when one attempts to use the idea of natural law as the foundation for a system of law based on "justice."

In an age when citizens disagree sharply about what justice requires, courts have to question imposing contested principles by judicial fiat. The debate about whether or not the Supreme Court should enforce unenumerated principles of justice, rooted in natural law rather than explicitly codified in the Constitution, goes back to the beginning. The terms of the debate were established as early as 1798, in Calder v. Bull. Justice Shalt Thou Not Pursue ? why the supreme court?s rejection of ?justice? is a good thing ? In Character, A Journal of Everyday Virtues by the John Templeton Foundation

a. How to find a universal definition of exactly what 'justice' is, or what God would find just, when there isn't a consensus on what God is, or even if there is a God.





4. Calder v. Bull.
In the case mentioned above, Justice Samuel Chase gave his view of natural law, and the limits of legislative power: He noted that while the federal government's powers were strictly defined in the enumerated powers clause, state governments had all the power that the people of the states decided that they had, except for those denied by the Constitution. But, he said, natural law "will determine and overrule an apparent and flagrant abuse..." And "An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority,...”

5. Chase was drawing on a natural law tradition widely accepted by the American founders. Virtually all of the framers of the Constitution, led by Madison, believed in the existence of natural rights – that is, rights given by God rather than Government – that individuals retained during the transition from the state of nature to civil society.

There was broad consensus during the founding period about which rights were natural: they included the right to alter and abolish governments, to worship God according to the dictates of conscience, to speak freely, and to pursue and obtain happiness and safety.

a. Focus on this: who will decide whether or not state legislatures have broken the restrictions of natural law? Chase has set the stage for federal judges to substitute their individual understandings of unwritten natural law for the judgments of state legislatures.
"The Politically Incorrect Guide to the Constitution," Kevin R. C. Gutzman, p. 53-54.





6. Fellow Justice James Iredell gave the alternate argument: The anti–natural justice position in Calder v. Bull – that is, the view that natural rights exist, but courts should not enforce them – was expressed by Justice James Iredell.

“If any act of Congress, or of the Legislature of a state, violates ... constitutional provisions, it is unquestionably void,” he wrote. “If, on the other hand, the Legislature of the Union, or the Legislature of any member of the Union, shall pass a law, within the general scope of their constitutional power, the Court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject; and all that the Court could properly say, in such an event, would be, that the Legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice.”
Justice Shalt Thou Not Pursue ? why the supreme court?s rejection of ?justice? is a good thing ? In Character, A Journal of Everyday Virtues by the John Templeton Foundation



Again: "....ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject;..."

That really is the heart of the matter, isn't it. Good people may disagree on any issue.





And so, even those of us aligned with the founders in belief in a Creator, and in natural law, are unable to disagree with Justice Iredell..."... the ablest and the purest men have differed upon the subject..."



Therefore, "Justice" cannot be the basis of our legal system unless all agree on its exact meaning.

 

[DGS49]

The real questions come about when the Criminal Law prohibits things that are intrinsically evil (that is, they are thought to violate Natural Law), though not measurably harmful to any person, place, or thing.

For example, homosexual sodomy, pornography, prohibition of the sale and use of "controlled substances," gambling, and bigamy.

The recent trend is to remove from the criminal code such prohibitions, while "traditionalists" fight to maintain the prohibitions, based on more questionable views of "harm." Thus, we have people claiming that pornography promotes rape, adultery, child molestation, and divorce.

Many people today feel that "recreational" drug prohibitions are "illegitimate" because an informed adult taking recreational drugs as a matter of choice either harms no one, or harms only himself, which is his right. Traditionalists talk about the POSSIBLE or LIKELY harm to society.

R.I.P. P.S. Hoffman.

 

[PoliticalChic]

The real questions come about when the Criminal Law prohibits things that are intrinsically evil (that is, they are thought to violate Natural Law), though not measurably harmful to any person, place, or thing.

For example, homosexual sodomy, pornography, prohibition of the sale and use of "controlled substances," gambling, and bigamy.

The recent trend is to remove from the criminal code such prohibitions, while "traditionalists" fight to maintain the prohibitions, based on more questionable views of "harm." Thus, we have people claiming that pornography promotes rape, adultery, child molestation, and divorce.

Many people today feel that "recreational" drug prohibitions are "illegitimate" because an informed adult taking recreational drugs as a matter of choice either harms no one, or harms only himself, which is his right. Traditionalists talk about the POSSIBLE or LIKELY harm to society.

R.I.P. P.S. Hoffman.

But Chase's belief, "He noted that while the federal government's powers were strictly defined in the enumerated powers clause, state governments had all the power that the people of the states decided that they had, except for those denied by the Constitution," seems to obviate, largely, the problem you suggest.

 

[DGS49]

I don't see a Constitutional issue with revising penal codes to eliminate laws prohibiting intrinsically evil conduct that harms no one.

On the contrary, there are many Constitutional arguments made when seeking to overturn such laws. For example, prohibitions of pornography are said to violate the First Amendment's guarantee of the freedom of speech. Prohibitions of homosexual sodomy are said to violate the mythical Constitutional "right of privacy." (But of course, the right of privacy may be one that is envisioned by the Ninth Amendment, eh?)

 

[PoliticalChic]

I don't see a Constitutional issue with revising penal codes to eliminate laws prohibiting intrinsically evil conduct that harms no one.

On the contrary, there are many Constitutional arguments made when seeking to overturn such laws. For example, prohibitions of pornography are said to violate the First Amendment's guarantee of the freedom of speech. Prohibitions of homosexual sodomy are said to violate the mythical Constitutional "right of privacy." (But of course, the right of privacy may be one that is envisioned by the Ninth Amendment, eh?)

I endorse originalism :the Constitution has a fixed meaning; that this meaning is the “original public meaning” as understood at the time of enactment; that that public meaning has the force of law.

Any law passed by the federal government must reflect the above, an be consistent with the enumerated powers.



The states are constrained by the Constitution, and by the voters of that particular 'laboratory of democracy.'

 

[PoliticalChic]

There was broad consensus during the founding period about which rights were natural: they included the right to alter and abolish governments, to worship God according to the dictates of conscience, to speak freely, and to pursue and obtain happiness and safety.

How did we get to the point in this nation when we are ruled by an administration that believes in none of these?


Case in point:


"In her 1993 article "Regulation of Hate Speech and Pornography After R.A.V," for the University of Chicago Law Review, Kagan writes:

"I take it as a given that we live in a society marred by racial and gender inequality, that certain forms of speech perpetuate and promote this inequality, and that the uncoerced disappearance of such speech would be cause for great elation."

In a 1996 paper, "Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine," Kagan argued it may be proper to suppress speech because it is offensive to society or to the government.

That paper asserted First Amendment doctrine is comprised of "motives and ... actions infested with them" and she goes so far as to claim that "First Amendment law is best understood and most readily explained as a kind of motive-hunting."

Kagan's name was also on a brief, United States V. Stevens, dug up by the Washington Examiner, stating: "Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs."

If the government doesn't like what you say, Elena Kagan believes it is the duty of courts to tell you to shut up. If some pantywaist is offended by what you say, Elena Kagan believes your words can be "disappeared".
http://wyblog.us/blog/obama_watch/elena-kagan-loves-censorship
The Daley Gator | Elena Kagan Radical anti-gun nut?

 

[jwoodie]

The Law is based on experience, not reason. Unfortunately, predictability is more important than justice.

 

[PoliticalChic]

The Law is based on experience, not reason. Unfortunately, predictability is more important than justice.

David Mamet wrote something similar to what you posted, in "The Secret Knowledge"...

1. Justice means choice. The choice must be by recourse and devotion to laws made impartially, without respect to individuals, and applied impartially.


2. This is the great contribution of our Judeo-Christian foundation to Western civilization. The principles of justice are laid down in the Torah and the Gospels, and implemented through human actions memorialized in judicial codes.

a. The written laws and rules are codifications of the unwritten ones worked out over millennia as the result of human interactions and experience.




3. But the execution of the laws must take into account human frailty, and must acknowledge the limits of reason, and, therefore, resort to impartial statutes in order to be fair.

4. The Bible is the wisdom of the West. It is from the precepts of the Bible that the legal systems of the West have been developed- systems, worked out over millennia, for dealing with inequality, with injustice, with greed, reducible t that which Christians call the Golden Rule, and the Jews had propounded as “That which is hateful to you, don not do to your neighbor.”

It is these rules and laws which form a framework which allows the individual foreknowledge of that which is permitted and that which is forbidden.





5. Should we extend our discussion to Justice….with mitigating factors of one’s childhood, race, or environment?
What weight to extenuation…his supposed goodness to animals or to his mother...? Where is consideration for the needs of the citizenry for protection?
No where: if a jury is influenced by emotion, dramatics, flattery, ‘compassion,’ then laws, which have been decided based on behaviors and not individuals are cast aside by reference to merit, or fairness, or compassion….all of which are inchoate, subjective and nonquantifiable.
a. It is not the government’s job to determine merit, rather to provide a set of laws that one may expect to be applied without intervention. Laws, under our Constitution, apply not to classes of people, but to classes of actions.



6. If “fairness” is associated with group-identity, with all of the associated accommodations, law will be reduced to constant petition of government for special and specific exemptions from justice. Law, to be just, but be written and carried out in ignorance of the identity of its claimants.