Tag Archives: ethics

Justice Breyer is Wrong Again

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Former Supreme Court Justice Stephen Breyer is out with a new book [emphasis in the title], Reading the Constitution: Why I Chose Pragmatism, Not Textualism. In an interview with The New York Times, he had this to say about originalism, textualism, and relatively newly appointed Justices.

Recently, major cases have come before the court while several new justices have spent only two or three years at the court. Major changes take time, and there are many years left for the newly appointed justices to decide whether they want to build the law using only textualism and originalism.

Yeah, these Justices couldn’t possibly have developed their view over the years they’d spent on lower court benches, or practicing law, or clerking for other judges and Justices.

Then there’s his inherent position that judges and Justices build the law in the first place. Of course, they cannot, legitimately; they can only interpret and apply the law and our Constitution as they are written. Building the law is, under our Constitution, solely the province of our elected legislators in conjunction with the advice of our elected President (advice, because his veto can be overridden by those same legislators).

There’s this, too, from Breyer:

First, it requires judges to be historians—a role for which they may not be qualified—constantly searching historical sources for the “answer” where there often isn’t one there[.]

That’s an astonishing thing for a judge of any sort to say. Stare decisis—precedent—has history at its core as judges and Justices search out those precedents, their reasons for existing, and whether those reasons still apply or were applied correctly in the first place. Of course judges must be historians, at least regarding law and the politics that underlie a law’s creation.

Second, it leaves no room for judges to consider the practical consequences of the constitutional rules they propound.

Whose definition of “practical consequences?” This, too, is a matter solely for the political branches, the Legislature and the Executive, along with We the People who elect them, to define. Such definitions are essential aspects of law building from which the structure of our government and the oaths of office our judges and Justices take explicitly bar those judges and Justices.

And third, it does not take into account the ways in which our values as a society evolve over time as we learn from the mistakes of our past.

This, too, is far outside the authority of judges and Justices. They don’t get to define the ways in which our values as a society evolve nor do they get to alter our laws or our Constitution to align with their personal views of those values or their personal views of those values’ supposed evolution. Their authority is strictly limited, again, to applying the law and our Constitution as they are written.

So it is with our Constitution in particular, and that document evolves with society in a particular way: through Article V and its instruction on how to amend our Constitution.

All adjusting according to society’s evolution is the sole province of our elected legislatures and us citizens who elect them. The latter—us citizens—after all are the entirety of our society and the definers, in our aggregate, of what our society’s values are. Judges and Justices, as private citizens, certainly are part of our citizen population, but when they’re operating in their capacity as judges and Justices, they are not private citizens, but public employees who are bound to act within the law and our Constitution.

That, in turn, requires them—all together now—to apply the law and our Constitution as they are written. Justices who presume, in particular, to modify our Constitution from the bench, under the rationale, perhaps, that society’s values have changed from when those clauses and amendments were ratified, are explicitly violating their oath of office to support and defend our Constitution, not to alter it.

The Disingenuousness of Government Censorship

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The Supreme Court is hearing a case centered on, among other speech-related matters, whether the Federal government illegally—unconstitutionally—pressured social media companies to suppress or delete altogether posts of which the government disapproves regarding Wuhan Virus vaccines.

The government’s arguments in the case are telling.

US Solicitor General Elizabeth Prelogar…likened the government’s interactions with social-media companies to Ronald Reagan’s urging the media to help combat drug abuse, George W Bush’s inveighing against pornography, and Theodore Roosevelt’s denunciation of muckraking journalists.

This is one of the government’s disingenuousnesses. All of Reagan’s, Bush the Younger’s, and Roosevelt’s inveighing were publicly done. Us ordinary Americans knew what those Presidents were telling “the media” what they wanted them to do, and we knew it as soon as they spoke. The Biden administration, on the other hand, pressured today’s social media outlets behind the scenes, in secret. For instance,

When Hank Aaron died in 2021, Robert F Kennedy, Jr, suggested in a tweet that the baseball legend’s death was caused by a Covid vaccine.
The next day, a White House employee asked Twitter, now known as X, to take down Kennedy’s post. “Wondering if we can get moving on the process for having it removed ASAP,” the White House’s Covid-19 digital director wrote to two Twitter employees.
The social-media platform did so.

Here’s another of the Biden administration’s disingenuousnesses, if not an example of its outright cynicism, this one regarding the 5th Circuit’s ruling forbidding officials including the president’s counsel, press secretary, director of digital strategy, and other White House staffers from coercing, “significantly encouraging,” or supervising content moderation.

The Biden administration appealed that ruling to the Supreme Court. It warned that the restrictions would prevent the government from talking to tech companies about matters of national security and public safety, as well as urging them to protect teens from the harmful effects of social media.

Nonsense. The appellate court’s bar in no way prevented or prevents anyone in the Biden administration from talking to tech companies or anyone else about anything at all. Those officials just have to do it publicly—like those prior Presidents had done, and in the same vein those prior Presidents had—and they aren’t allowed to attempt to apply pressure to comply.

Prelogar does have an argument, of sorts.

The government is entitled to speak for itself by sharing information, urging action, and participating in debate over issues of great concern to the public[.]

Absolutely, the government is so allowed. However, government—in the present case, the Biden administration—is not speaking for itself when it moves to suppress the speech of others who disagree with the administration position.

Nor is the Biden administration “urging action” regarding the subject of a debate when it is urging suppression of views that run counter to the administration’s position.

Nor is the Biden administration participating in debate over issues of great concern to the public when it acts to suppress the speech of others, which also is of concern to the public, thereby barring the public from participating in what the Biden administration wants to be a one-sided debate.

The Biden administration should exercise its “entitlement” to speak for itself by answering disagreeing comments in the commentary with its own—public—comments saying why those disagreeing comments seem erroneous; asserting what the administration believes to be accurate information; and explaining in concrete, measurable terms why it believes its own claims to be the more accurate.

There are no alternatives in a nation that believes free speech to be a fundamental right intrinsic in each of us citizens.

Time to Fire Flag Officers and Dismiss them from the Army

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The management of the US Military Academy—West Point—has decided the Academy’s mission no longer includes inculcating concepts patriotism, sacrifice, obligation, and honor in our future Army officers.

The US Military Academy at West Point removed the “Duty, Honor, Country” motto from its mission statement.

It’s bad enough that the managers at the top of the Department of Defense think proper pronouns, and equal outcomes regardless of merit, and skin color—wokeness—are more important than training our military men and women how to defend our nation, how to kill our enemies if they attack us. Now the managers of what used to be a premier military academy don’t even think officers satisfying their obligations, displaying and acting on precepts of honor, and putting our nation’s needs ahead of their personal convenience (or pronoun preference) needs to be trained at all.

Of course, those worthies do intend to maintain the phrase as a motto. Whoopty damn do.

And this from West Point spokesman Colonel Terence Kelly:

Duty Honor Country is West Point’s motto and the foundation of our culture as it has been since 1898. As we have done nine times in the past century, we have updated our mission statement to now include the Army Values, loyalty, duty, respect, selfless service, honor, integrity, and personal courage.

Weasel words. “Duty, Honor, Country” are those values. If the academy [sic] managers truly meant those words, they’d keep the overarching phrase.

Four flags that come to mind as being ripe for relief and dismissal are US Military Academy Superintendent Lieutenant General Steven W Gilland, Dean Brigadier General Shane R Reeves, Commandant of Cadets Major General Lori L Robinson, and US Army Chief of Staff General Randy A George—the latter for allowing this to go through.

This Time I Disagree with Bjorn Lomborg

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But only a little bit. Lomborg (among other things, Copenhagen Consensus President), in his Tuesday Wall Street Journal op-ed, writes absolutely correctly about the need for climatistas (my term, as is “doomsayers” below) to consider much more than their simple claim of climate change and the imminent destruction from their claimed change. Lomborg, though, concentrated on the economic destruction the doomsayers’ policies would inflict even as those worthies ignore technological advances that would mitigate their claims’ outcome, even were their claims in any way accurate.

Where I disagree is in the lack of discussion of the larger, and more important, context within which today’s alleged climate disaster is supposedly developing.

From the subheadline of Lomborg’s piece:

Climate policy needs to take into account the costs of draconian measures….

The doomsayers need to do more than that. They need to reconcile their claims of impending disaster with some facts that provide longer range context. Facts like Earth, 11k years after the last Ice Age, still is cooler than our planet’s geologic warming trend line (noisy as the data around the trend line are). Facts like there have been a number of epochs in our past where Earth was much warmer than it is now, and life was lush; there have been a number of epochs in our past where atmospheric CO2 was much higher than it is now, and life was lush; and those sets of epochs do not correlate with each other.

Some other facts: our climate changes do correlate, roughly, with orbital changes (small) and rotation axis precession (relatively dramatic). Beyond that, we’re about halfway through the current axial tilt from one direction to the opposite, and we tilt—our northern hemisphere, where most of the oceans are—toward the sun in winter and away from the sun in summer. How do the doomsayers plan to deal with the situation in a few thousand years (roughly equivalent to half the time that has passed since that last Ice Age, and a bit shorter than the time since we started our first civilizations) when our northern hemisphere tilts toward the sun in summer, away from the sun in winter, and the seasons get dramatically more extreme as a result?

Boeing Production Problems and Unions

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Yes, the two are related. This is from a Wall Street Journal article on Boeing’s production sloppiness (my term) in its airline assembly operations. “Traveled work” is work done on the production line at a later station on the line than it should have been done, and generally by the personnel at that later step rather than by those who should have done it moving to the next station to complete it. For instance,

…the plane [whose door had blown out on an Alaska Airlines flight] spent nearly three weeks shuffling down an assembly line with faulty rivets in need of repair.
Workers had spotted the bad parts almost immediately after the plane’s fuselage arrived at the factory. But they didn’t make the fix right away, and the 737 continued on to the next workstation. When crews completed the repair 19 days later….

Boeing’s fix [emphasis added]?

Boeing told staff it was changing how it determines pay for tens of thousands of nonunion employees—from mechanics in South Carolina to its top brass. Quality measures, such as reducing traveled work, will now determine 60% of the annual bonuses for those working on its commercial aircraft.

Boeing’s union employees apparently get to continue to skate. The move appears to single out Boeing’s right-to-work state employees for punishment while not addressing the problem itself.