Sunday, March 19, 2006


Tyranny On The Horizon

John Hinderracker over at Powerline posted a great deconstruction of Justice Ginsburg's appeal to foreign law in a speech in South Africa a few weeks ago. Here's the heart of his arguement
The real issue here is: what is the Constitution? Justice Scalia has famously noted that the Constitution is a legal document which, like all legal documents, says some things and does not say others. In Justice Ginsburg's view the Constitution is, on the contrary, a roving charter for nine individuals to decide what "basic fairness" requires. It should hardly be necessary to point out that the former understanding, which was universal until quite recently, is a charter of freedom, inasmuch as the people's representatives can vote on amendments. Conversely, the "basic fairness" approach is a form of tyranny in which a small elite can impose its policy preferences on the rest of us.

It is also utterly unworkable. There is a reason why people reduce legal documents to writing: it's the only way to know what the deal is. Under Justice Ginsburg's approach, the "law" is ineffable. There is no way to know from one day to the next what it might be.
There is such a misunderstanding of "freedom" in the country today. Sometimes I think people in this day and age equate freedom with chaos and perhaps even anarchy, but what they fail to see is that is the path to opression.

Freedom is born of a level playing field. That's what the constitution does - it levels the playing field. That's what Hinderacker is talking about when he talks about reducing law to writing. If the playing field is not leveled, then someone is capable of garnering oppressive power unto themselves.

That people do not understand that these days is one of the most frightening intellectual develops in our nations history.

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