Tag Archives: government

A Conservative’s View….

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My latest effort, a pamphlet on the American legal system (because I don’t lack for ego), A Conservative’s View of the American Concept of Law, has been released, and it can be found on amazon.com: https://amzn.to/2L4iVXx .  Links also can be found on my Books page.

Our legal system is explicitly founded on natural law through our Creator’s endowment—the origin and source of our fundamental principles.

Though government should not legislate morality beyond a very narrow arena (vis., a measure of specificity regarding types of homicide and theft; strictly limited controls on bearing false witness, etc.), with natural law as the foundation of our legal system, morality inescapably informs it.  This is so because morality flows from the Creator-endowed and individually-imbued nature of our inalienable rights to life, liberty, and the pursuit of happiness. Our social compact was founded explicitly to protect these.  From that, our statutes are at their best when limited to attempts to implement and protect those foundational principles and nothing more. Any further legislation should be limited to improvements on those strictly circumscribed efforts. In particular, legislation should not be used to generate new morals.

The nature of our American judiciary and the proper role of judges in our jurisprudence has been argued throughout our history, but the argument has been especially virulent over the last dozen or so years.  The current dispute (I don’t call it a debate) centers on whether our Constitution means what it says and neither more nor less, or whether it’s a living document that should grow and adjust to meet a judge’s understanding of changing times and mores.

In this pamphlet, I lay out three key propositions.  The first is that only Congress may make law.  The second is that judges may strike a law before them as unconstitutional, but if they do not, they must apply the law as written.  The third is that the Constitution must be applied as it is written.  Alterations or updates to it are political decisions, and thus only We the People may make them.

Understand: I’m not writing about the origins of the idea of law or of systems of law.  A plethora of legal philosophers (HLA Hart, Jeremy Bentham, John Austin, and Gustav Radbruch to mention a few Western ones) treat these subjects should the reader wish to explore them. I begin later, with the principles underlying our American legal system.

 

Keep in mind, too, that government, per se, does not make law; the men who populate the government do.

 

Finally, Justice Antonin Scalia made this claim in his A Matter of Interpretation,

Surely this is a sad commentary: we American judges have no intelligible theory of what we do most.
Even sadder, however, is the fact that the American bar and American legal education, by and large, are unconcerned with the fact that we have no intelligible theory.

I agree, and in my hubris, I offer the beginnings of such a theory here.

May’s Brexit Surrender

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The terms include these, via Deutsche Welle:

  • The rights of EU citizens in the UK and UK citizens in the EU will be protected
  • EU citizens living in the UK can be joined by close family members…who live in a different country at any point in the future.
  • Workers and self-employed people will be broadly guaranteed the same rights they currently enjoy

All of which negate one of the motives for leaving the European Union. EU citizens resident in the UK will be magnets for drawing in others for the UK’s generous welfare system—and EU citizens still will be able to seek work in the UK preferentially, availing themselves both of the UK’s higher wage rates and that welfare system.

  • There will be a 21-month transition period ending December 31, 2020
  • EU rules would continue to apply in the UK subject to the terms set out in the Brexit agreement
  • After the transition period, a joint committee co-chaired by the EU and the UK would police the final withdrawal agreement, taking decisions by mutual consent and whose verdicts would be binding

Meaning that the UK would remain unable to enter into separate, independent trade agreements during this “transition” period EU laws would remain in effect inside allegedly sovereign Great Britain, and the EU will retain veto power, via that mutual consent requirement, on post-transition moves—including those independent trade agreements and moves to supplant EU laws with domestic, UK, laws.

  • If appropriate customs arrangements are not agreed to, a backstop arrangement would kick in. A joint “single customs territory” between the EU and UK would apply from the end of the transition period…
  • Under the backstop arrangement, the UK must observe “level playing field” commitments on competition, state aid, taxes and employment and environment standards

Are not agreed to means the agreement will be in accordance with EU diktat or there will be the backstop arrangement. This is what the EU wants, so there will be no agreed customs arrangement.  The EU wants the backstop because those terms require the UK to keep its Northern Ireland inside the EU’s competition, state aid, taxes and employment, and environment laws in perpetuity. This is the beginning of prising Northern Ireland out of the UK—the beginning of dismantling the UK.  This is part of the EU’s demonstration to restive members of the EU and a warning of their fate if they become impertinent, too.

The bottom line for the UK here is that, under this “agreement,” these terms of surrender, the nation will become a speechless, toothless satrap of the EU, and its dismantling will be begun.

May, with her abject surrender to Brussels, has betrayed her nation’s referendum.  And she has betrayed other members of the EU similarly dismayed with Brussels’ interference in their domestic affairs.

It’s no wonder that members of her Cabinet are resigning in droves, her coalition government is falling apart, and her own party is in (sub rosa, for now) revolt.

A European Army

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There’s a nascent move afoot to create a European army to which, presumably, all the member nations of the EU would contribute men, equipment, and money.  German Chancellor Angela Merkel suggested to the European Parliament last Tuesday that such a force

would complement NATO.

I’ll leave aside the question of how the EU’s member nations would pay for such an establishment when they’re having so much trouble finding ways—or reasons—to pay for their commitment (of all of 2% of their respective GDPs) to NATO.

There’s another question that badly wants answers.  While the US—and the free individual nations of Europe and of Asia—have benefitted from the existence of their standing armies, our own Founders had misgivings about such an establishment, to the point that for some years after our own birth, we had neither standing army nor standing navy.  Such a thing was, they feared, the stuff of tyranny.  Even though the formal raison d’etre of a standing army was, and is, outward-looking and for defense of the nation against foreign threat, a standing, professional military facility (they feared) ultimately would become a domestic threat: Government would come to use the thing to suppress and then to oppress the people over whom such a well-equipped Government ruled.

So far, those fears have not been realized in those nations where the people remain free enough to choose at more or less regular intervals the persons they will have as members of their governments.  Such free peoples have checked the power of their governments.

But what of the European Union?  That organization does not have a universally freely elected governing body.  The European Parliament, to be sure, is elected by the citizens of the member nations.  However, that body has no governing authority; it can only make recommendations.  The real power of the EU’s Government is shared among the European Council, which consists of the heads of state of the EU’s member nations; the President of that Council; and the President of the European Commission, whose members are European Council appointees.  That’s a lot of power concentrated away from the will and the choices of the citizens of the member nations.

It’s a power that gets freely and broadly exercised, too, as illustrated by the EU’s Government presuming to reach inside a member nation—Italy—and dictate to that nation what its domestic budget must be.  Were [Italy] to remain intransigent, and were the EU to have its own standing army, what might be an outcome of a future dispute between [Italy] and the EU?

The peoples of Europe, the citizens of the individual member nations, need to think very carefully whether they want to arm so well a system of governance over which they have so little say.

The End of Free Speech

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At least in Europe.  The European Court of Human Rights ruled last Thursday that it’s impermissible to make crude remarks about Islam’s Muhammed if those remarks fall outside what Government deems acceptable.  It seems that, in the course of a 2009 seminar, a woman commented on Muhammed’s marriage to his child bride:

[Muhammed] liked to do it with children…. A 56-year-old and a six-year-old? … What do we call it, if it is not pedophilia?

The ECHR ruled that remark unobjective, lacking historical background, and intended to disparage Islam.

Government will decide what parameters must be present in “free” speech—here, objectivity, with Government defining that parameter—Government will decide the environment and context within which “free” speech must be made.  Government has decided that rude speech is verboten.

The answer to bad speech is not more speech, but—in Europe—no speech other than that which is Government approved.