Tag: law

Creeping out from under their rocks

The advocates of unlimited government are beginning to sense that their long-sought victory over the concept of limited government is finally within sight:

As the nation teeters at the edge of fiscal chaos, observers are
reaching the conclusion that the American system of government is
broken. But almost no one blames the culprit: our insistence on
obedience to the Constitution, with all its archaic, idiosyncratic and
downright evil provisions…

it is hard to take seriously the claim by the
Constitution’s defenders that we would be reduced to a Hobbesian state
of nature if we asserted our freedom from this ancient text. Our
sometimes flagrant disregard of the Constitution has not produced chaos
or totalitarianism; on the contrary, it has helped us to grow and
prosper.

This is not to say that we should disobey all constitutional commands.
Freedom of speech and religion, equal protection of the laws and
protections against governmental deprivation of life, liberty or
property are important, whether or not they are in the Constitution. We
should continue to follow those requirements out of respect, not
obligation. 

Make no mistake, getting rid of the Constitution has always been the penultimate goal of the Left.  Everything they have done, from expanding the franchise to women and younger voters to changing the demographic makeup of the electorate and buying off the elderly, has been with this object in mind.  Unlimited government is the goal, and even though the Constitution is mostly honored in its breach these days, it is still a reminder that the real America, the historical America, is a nation of laws and not men.

The Orwellian U.S. courts

Black is white.  War is peace.  Non-compliance is compliance.  Concealment is disclosure:

A federal judge on Wednesday dismissed most of two lawsuits seeking disclosure of US government documents related to the Obama administration’s claim of legal authority to order the killing of American citizens overseas….

At issue was whether the administration would be ordered under the Freedom of Information Act (FOIA) to disclose to the public legal memos written by government lawyers defending the targeted killing of US citizens overseas who were suspected of involvement in terror operations.

“This Court is constrained by law, and under the law, I can only conclude that the Government has not violated FOIA by refusing to turn over the documents sought in the FOIA requests,” McMahon said.

She added that the government thus could not be “compelled by this court of law to explain in detail the reasons why its actions do not violate the Constitution and laws of the United States.”

Got that?  The Government has not violated FOIA by violating FOIA. That is, if nothing else, a violation of Aristotelian logic.  The fact is that regardless of what the captive courts declare, the Obama administration has absolutely no authority to order the killing of American citizens without trial or due process, overseas or within the borders of the States. The fact that the courts are too corrupt to even hold them accountable is further evidence of the ongoing decline of the United States into historical irrelevance.

Abolish the death penalty

It’s not often that I agree with a New York Times editorial, but I, too, oppose the death penalty.  I don’t oppose it because there are not criminals who merit death, but rather because I do not trust the state to be able to carry it out responsibly and in a strictly limited manner, a doubt that the historical and scientific evidence tends to strongly bolster:

Thanks to the Innocence Project
and the overturning of 18 wrongful convictions of death-row inmates
with DNA evidence and the exonerations of 16 others charged with capital
crimes, the American public is increasingly aware that the system makes
terrible mistakes. Since 1973, a total of 142 people have been freed
from death row after being exonerated with DNA or other kinds of
evidence.
All of these factors have led the states to retreat from the death
penalty in recent years — in both law and in practice. In 2012,
Connecticut became the fifth state in five years to abolish the penalty.
Nine states executed inmates, the fewest in two decades. Three-fourths
of the 43 executions in 2012 were carried out in only four states. The
number of new death sentences remained low at 77 — about one-third the
number in 2000 — with just four states accounting for almost two-thirds
of those sentences. While 33 states retain the death penalty on their
books, 13 of them have not executed anyone for at least five years.

It is always important to keep in mind that murder and other capital crimes are far less significant problems than mass murder by government.  The very last thing any libertarian should support is a government that wants to confiscate firearms being empowered with life and death over its citizens.  Moreover, a death penalty ban should also include a ban on the Obama administration’s claim of a power of secret president-ordered assassinations.

If the federal government cannot execute a citizen with a trial, it bloody well can’t assassinate him without one either.

Let Science be silent

There is an wise old saying that I very much attempt to apply to life, the universe, and everything.  “Let Reason be silent when Experience gainsays it.”  In this postmodern scientific age, we very much require a new aphorism.   

Let Science be silent when it cannot predict future events.  

The fear and outrage being expressed in light of the conviction of the Italian geologists who are guilty of manslaughter at L’Aquila are entirely misplaced, as it is not science that is being found guilty, but rather, the abuse of the common man’s faith in science by scientists.  Consider the facts of the case, as described by Nature, a publication that can hardly be considered hostile to science:

The indictments have drawn global condemnation. The American
Geophysical Union and the American Association for the Advancement of
Science (AAAS), both in Washington DC, issued statements in support of
the Italian defendants. In an open letter to Napolitano, for example,
the AAAS said it was “unfair and naive” of local prosecutors to charge
the men for failing “to alert the population of L’Aquila of an impending
earthquake”. And last May, when Italian magistrate Giuseppe Gargarella
ruled at a preliminary hearing that the scientists would have to stand
trial this September, the Italian blogosphere lit up with lamentation
and defence lawyers greeted the decision with disbelief….

The view from L’Aquila, however, is quite different. Prosecutors and
the families of victims alike say that the trial has nothing to do with
the ability to predict earthquakes, and everything to do with the
failure of government-appointed scientists serving on an advisory panel
to adequately evaluate, and then communicate, the potential risk to the
local population. The charges, detailed in a 224-page document filed by
Picuti, allege that members of the National Commission for Forecasting
and Predicting Great Risks, who held a special meeting in L’Aquila the
week before the earthquake, provided “incomplete, imprecise, and
contradictory information” to a public that had been unnerved by months
of persistent, low-level tremors. Picuti says that the commission was
more interested in pacifying the local population than in giving clear
advice about earthquake preparedness.

“I’m not crazy,” Picuti says. “I know they can’t predict
earthquakes. The basis of the charges is not that they didn’t predict
the earthquake. As functionaries of the state, they had certain duties
imposed by law: to evaluate and characterize the risks that were present
in L’Aquila.” Part of that risk assessment, he says, should have
included the density of the urban population and the known fragility of
many ancient buildings in the city centre. “They were obligated to
evaluate the degree of risk given all these factors,” he says, “and they
did not.”

“This
isn’t a trial against science,” insists Vittorini, who is a civil party
to the suit. But he says that a persistent message from authorities of
“Be calm, don’t worry”, and a lack of specific advice, deprived him and
others of an opportunity to make an informed decision about what to do
on the night of the earthquake. “That’s why I feel betrayed by science,”
he says. “Either they didn’t know certain things, which is a problem,
or they didn’t know how to communicate what they did know, which is also
a problem.”

The article and the account it provides of the fate of the Vittorini family is damning to guilty geologists.  It is clear that the Italian families resident there no longer abided by their traditional custom of clearing out of their houses when there were tremors, primarily due to the assurances they received from the National Commission, which is why the death toll was larger than it would have been if it hadn’t been for those assurances.  The defenders of the scientists around the world are observably bending the truth, even lying, for claiming that science is on trial or that the basis of the charges are that they failed to do the impossible by not “pinpointing the time, location and strength of a future earthquake in the short term”, as Nature puts it.

As the prosecutor points out, the basis of the charges is not that the scientists didn’t predict the earthquake, but rather that they did not fulfill their legal duties to perform a proper risk assessment.  Moreover, if it is impossible to predict an earthquake, then how could any honest geologist accept a paid position on a government body called the National Commission for Forecasting
and Predicting Great Risks?  If you know you can’t do the job required, then you had better not accept it in the first place.

I have to disagree with Instapundit’s take on the matter.  He sees this Italian attempt to hold scientists accountable for engaging in unscientific activity that led directly to great loss of life as creating “incentives for scientists to leave Italy and
to avoid giving any sort of earthquake advice to the Italian government.
I predict a run of bad luck.”

First, I note the inapplicability of the quote to the situation.  Heinlein was talking about entrepreneurs and technological and conceptual innovators when he described his “extremely small minority, frequently despised, often condemned, and almost always opposed by all right-thinking people”.  He most certainly wasn’t describing publicly acclaimed, government-funded individuals hailed as the nation’s “most respected geophysicists”.

Second, I very much doubt Italy will have any trouble at all finding top-credentialed scientists to continue accepting government funding.  And to the extent that those scientists learn to keep their mouths shut about things they can neither predict with any reasonable accuracy nor support with credible scientific evidence, that would be an entirely desirable advancement from the current state of scientistry, which so often attempts to confuse credentialed democracy and amateur editing for genuine scientody.

La responsabilità della scientista

Avanti azzurri!  Much to the shock and horror of the world’s scientists, Italy holds seven “experts” accountable for their criminal negligence:

An Italian court convicted seven scientists and experts of manslaughter
on Monday for failing to adequately warn citizens before an earthquake
struck central Italy in 2009, killing more than 300 people.  The
court in L’Aquila also sentenced the defendants to six years in prison.
Each one is a member of the national Great Risks Commission.

Scientists worldwide had decried the trial as
ridiculous, contending that science has no reliable way of predicting
earthquakes.  Among those convicted were some of Italy’s most
prominent and internationally respected seismologists and geological
experts, including Enzo Boschi, former head of the national Institute of
Geophysics and Volcanology. 

It’s both fascinating and informative, isn’t it.  Scientists are absolutely certain that the science is settled and they are more than willing to declare what laws should be passed, what classes should be taught, and what massive economic interventions and intrusions on individual freedom should be suffered due to the absolute reliability of their scientific knowledge.

But hold them personally responsible for their predictions and declarations?  Well, that’s an outrage!  Science isn’t actually expected to be reliable, after all!  I look forward to seeing climate scientists being similarly prosecuted one day for the complete failure of their predictive models.  The evolutionary biologists should be safe, unfortunately, since they don’t even have any predictive models.

Mailvox: continuing education

Robwbright, Esq. continues to discover that the lawyer’s approach of attempting to poison the well isn’t the wisest tactic when dealing with a superintelligence:

 Is human superintelligence armed with facts & logic a legitimate source of authority?

Before
you answer, allow me to appeal to another authority – higher than
either of us… Note that God answers the above question “No”:  He
catches the wise in their own craftiness”; and again, “The LORD knows
the thoughts of the wise, that they are futile.” and “Therefore let no
one boast in men.”

A wise (and pretty intelligent) man once said:  “But
may I never boast about anything except the cross of our Lord Jesus,
the Messiah, by which the world has been crucified to me, and I to the
world!

It is interesting that you always call out someone when
they appeal to their own authority, but you CONSTANTLY appeal to and
boast about your own superintelligence and consider that acceptable
behavior.

Will you directly answer the question “Yes” or “No”. It should be a simple question for a superintelligence to answer.

It most certainly is a simple question.  Is “human superintelligence armed with facts and logic” a legitimate source of authority?  No, of course not.  Neither are royal bloodlines, academic credentials, or guild licenses.  None of these things are conclusively determinative of the truth.  But what robwbright quite amusingly reveals in his attempt to impugn my credibility here is that he doesn’t even know what an appeal to authority is.

This is readily apparent due to his claim that I “CONSTANTLY” appeal to the authority of my own superintelligence.  This is absolutely and totally false.  I will go so far as to assert that I have never once appealed to the authority of my intelligence in the 11-year history of my WND column or the 9-year history of this blog.  I should welcome the citation of any evidence that purports to prove otherwise.

Now, it is certainly true that I rub the oft-demonstrated fact of my superior intelligence in the face of my critics, for the reason I have often explained.  Both the political Left and the militant atheists regularly resort to the logical fallacy of appealing to the authority of intelligence; in fact, atheists even utilize it in a bizarre and illogical argument against the existence of God.  My overt assertion and subsequent demonstration of an even higher degree of intelligence than most of them can muster thereby removes one of their favorite intellectual weapons from their arsenal and tends to make them look foolish when they attempt to use it to dismiss me in the manner that they dismiss so many others they attack.

This is why you will often see them theorizing that I must be crazy, because they are so attached to their logical fallacy that they literally cannot grasp that someone can be more intelligent than they are and nevertheless reject their left-liberal ideology or their godless scientism… even though it has been statistically demonstrated that there are more high IQ theists than atheists.  IQ-flaunting is a useful rhetorical device that trumps a common rhetorical argument, nothing more.  And it is obviously an effective one, as most of my critics eventually get around to complaining about it sooner or later.

What robwbright tried to do here is the clever legal tactic known as “I know you are but what am I?”.  This is the second time he has unsuccessfully tried to attack my intellectual credibility in defending the legal system against my charges of corruption, while repeatedly engaging in the logical fallacy of appealing to his own experience.  Because lawyers are hierarchical credentialists prone to thinking they are more intelligent than everyone else, they are particularly susceptible to the same rhetorical baiting that so easily discombobulates the leftists and the atheists.

No one who is truly intelligent ever appeals to that intelligence because he knows that there is always someone smarter out there, and because he is confident that he can make his logical case based on the relevant facts.  I’ve already shown how  logic dictates robwbright’s claim that legislative law always trumps interpretive rulings MUST be incorrect, given that a) there is a long and sordid history of interpretive rulings trumping legislative law, and, b) the obvious distinction between “an interpretive ruling based on legislative law” and “an interpretive ruling that the judge pretends to have been based on legislative law”.

Finally, I have two return questions for robwbright.  First, are you an Officer of the Court?  Second, when you are in the courtroom, is the law what the presiding judge declares it to be?

Mailvox: defenses of dishonesty

RobertT writes:

So anyone who has ever worked for wages at an hourly wage is inherently
dishonest? That makes sense. How else do people get paid, except for
their time? That concept is as old as time itself. Service businesses
aren’t selling a product, they’re selling their time. And they generally
get a contract before doing anything just to make sure there are no
misunderstandings. This is how I work and my clients worship the ground I
walk on.  I don’t think much of attorneys either as a group, but maybe this is a little bit over the top.

No, there is nothing inherently dishonest about working for wages at an hourly wage.  But there is a fundamental distinction between ““billable hours” and fees charged “based on the time they’ve supposedly put in rather than concrete results” and working for hourly wages.  The distinction is based on the difference between wages, which are paid by an employer who has the power to provide oversight and manage performance, and fees, which are paid by a client who is completely at the mercy of the fee-charger.

Fees of this sort are deceptive because they are based on a fundamental falsehood, which is the labor theory of value.  They are primarily the result of government intervention in the economy, which creates artificial shortages that permit the government-protected fee charger to force the client to purchase the fee charger’s time rather than the service he actually wishes to charge.

Fee chargers often resort to a deceptive defense, by claiming that they must charge for their time because they don’t know exactly how long it will take to provide the service.  This defense is belied by the fact that products and services in markets permitted to be competitive are delivered despite the fact that their time-cost is unknown.  For example, when I sign a book contract, I don’t know how long it will take to write the book anymore than a lawyer knows how long it will take to resolve a legal case.  I therefore assume part of the risk; the longer I take to write the book, the more my compensation per hour will be reduced.

The fee charger, on the other hand, not only structures the arrangement so that his client assumes all of the risk, but also leaves the client at his mercy because the only hard limits on his time cost are his conscience and the client’s solvency.  Even if the fee charger has a conscience and bills the service in the actual amount of time required to perform it, this doesn’t change the fact that the nature of the structure is intrinsically corrupt.

Logos doesn’t even attempt a defense, but tends to concur:

I’m a lawyer, and I admit that I hate just about every lawyer I’ve come
into contact with. I’m still naive enough to try to make good arguments
and win cases, but lawyers I work with abhor the possibility of closing
a matter early or letting me get credit for winning it (I even have to
fight to sign my name on my own work product, which is damn good). It
makes me sad because we are supposed to be in a noble profession that
fights for the rule of law against all who would threaten it, especially
government.

I actually have an amount of sympathy for those lawyers who entered the profession without understanding its corrupt and corrupting nature.  Neither pre-law nor law school really explicate the truth for them, but rather give it to them in small doses so that only the most perceptive law student could put into any kind of coherent perspective.  One of my best friends is a lawyer, he was fired from his first law firm due to his unwillingness to bill nonexistent hours, and he is generally a man of good conscience.  But even he sees the problematic aspects of the system.  Those individuals of good will who chose to become a lawyer may well be bothered by the genuine hatred and disdain which so many people feel for them, but then, no doubt there are nice, good, honest bankers too.  So long as he is an officer of the court, a lawyer is a sworn agent of the legal system and cannot credibly disassociate himself from it.

And finally, robwbright attempts to get lawyerly, which is always unwise when dealing with a superintelligence armed with facts and logic, at least outside the courtroom.

Now, Vox said something I find a bit ironic.  “if one doesn’t know
the difference between written law and case law, and understand how the
latter trumps the former, it’s not even possible to have an informed
opinion on the issue.”

Vox, if you’re going to rant about
something, at least get the terminology right, or YOU risk appearing as
if it’s not even possible for you to have an informed opinion about it.

By
“written law”, I assume you mean statutory law. However, that’s not a
normal/common way to say/describe it, because case law is also most
certainly written. Perhaps I misunderstand your meaning of “written
law”, but that’s not my fault, as your term “written law” is not
precise. Common law might be referred to as “unwritten law”, but that’s
not case law, either.

And no, case law most certainly does NOT
trump statutory law in any court in which I have practiced (2 states, 7
counties, District Court of Appeals, State Supreme Court, Federal
District Court and Court of Appeals).

Given that robwbright quite clearly understood the precise distinction I was making between the two distinct types of law, a distinction that the average layman does not even know exists, this is nothing more than a shallow attempt at rhetorically undermining my point while appealing to his own authority.  I used the term “written law” because I am not addressing an audience of lawyers here, and there is absolutely no need to resort to legal jargon in order to make clear the difference between the statutory laws that are written and passed by the elected legislatures, (which is what most people understand the law to be), and the non-laws that are the set of existing rulings which made new interpretations of law and can be cited as precedent, and which the lawyers in the system agree to mutually pretend are “case laws” possessed of a standing intrinsically superior to the legislative laws.

The fact that robwbright’s objection is a trivial and deceptive one can be shown by the U.S. legal jargon “black letter law”, which means “well-established case law”.  After all, statutory law is printed in black letters too… so how can anyone possibly know what “black letter law” is?  It could be statutory law, it could be case law, it could be regulatory law, right?  If we are to accept his lawyerly logic, we must assume that any judge or lawyer who uses the term “black letter law” risks appearing as if it’s not even possible for them to have an informed opinion about it.  I trust this demonstrates how feigning ignorance and confusion is a counterproductive means of attempting to rhetorically undermine an opponent, particularly when one is attempting to establish oneself as a trustworthy authority.  Henceforth, I will use the terms “legislative law” for “written law” or “statutory law”, and “interpretive rulings” for “case law”, in the interest of precision and clarity.

He then appeals to the authority of his own experience in claiming that interpretive rulings do not trump legislative law in any court in which he has practiced.  However, I have personally witnessed interpretive rulings repeatedly trump legislative law in several Minnesota and Federal District Courts, and there are no shortage of similar examples I could cite.  But since I cannot expect to win competing appeals to personal experience with a lawyer on this subject, I will have to do better than that.  Which, as it happens, is simple enough, based on logic and legal history.

Being a lawyer, robwbright must know that interpretive rulings always trump legislative law at the court’s discretion, otherwise it would not be possible for “the set of existing rulings which made new interpretations of law and, therefore, can be cited as precedent” to be so often used by the Supreme Court and other courts for the purpose of overturning legislative laws.  If we are to accept his reasoning, it is impossible for a legislative ban on abortion to be overturned… except by a subsequent action on the part of the relevant legislature.

Hence the lawyer hate

Susan Walsh asked me about why I despise lawyers:

Care to explain? I actually know a ton of married couples where both are lawyers, the dynamic is positive, the kids are high achieving, everyone seems to have good values. Lawyers marry and have families, and most of them do corporate law. Why the hate?

Lawyers are among the most useless, parasitical, and unethical scum on the planet.  They are a shameless guild in the medieval sense that uses the government to erect artificial barriers to competition, they are fundamentally and intrinsically dishonest about what they do and for whom they work.  Talk to a lawyer sometime about what “the law” truly is… and if you can catch one being honest for a change, he’ll tell you “whatever a judge declares it to be”.

Nota bene: if one doesn’t know the difference between written law and case law, and understand how the latter trumps the former, it’s not even possible to have an informed opinion on the issue.

No one who works in an industry based on “billable hours” and charges
fees based on the time they’ve supposedly put in rather than concrete
results delivered can claim to be even remotely honest. One thing I’ve
noticed in my dealings with lawyers in five countries is that if you
make the mistake of trying to hire a reputable, top-notch lawyer to
actually do something, the first thing he usually tries to do is hire another lawyer to do the actual work for him.

Now, the domesticated form of lawyer, the in-house counsel, can be all
right, mostly because they can’t pull all the usual stunts since
they’re on salary… even though they try to hire outside counsel every
time they’re not kept on a tight leash.

Finally, lawyers are the larval form of politicians.

Gay marriage eliminates motherhood

Time exposes yet another lie from the pro-homogamy crowd:

France is set to ban the words “mother” and “father” from all official documents under controversial plans to legalise gay marriage.  The move, which has outraged Catholics, means only the word “parents”
would be used in identical marriage ceremonies for all heterosexual and
same-sex couples. The draft law states that “marriage is a union of two people, of
different or the same gender”. It says all references to “mothers and fathers” in the civil code –
which enshrines French law – will be swapped for simply “parents”. 

The homogamy advocates often like to ask how government-approved “gay marriage” could possibly affect normal heterosexual marriages.  Here is the answer: by eliminating both maternal and paternal status in law.  Nor is France the only place this legal assault on the traditional concepts of motherhood and fatherhood are taking place; the California Senate has sent up a trial balloon in its bill 777 which appears to be an attempt to remove the traditional concepts from the state educational system.

The interesting thing will be how this end to the legal statuses of “mother” and “father” will affect divorce law.  After all, it won’t be possible to assume that child custody will be given to the mother, once that position is legally abolished.  One wonders if the pro-homogamy members of the more progressive sex will rethink their support for the fake institution if they realize it may eventually result in their losing a substantial portion of their family court advantage.

Never count on a court

They always find a way to do what the politicians want them to do. Their job isn’t oversight, as it is commonly thought, but finding ways to publicly rationalize the obviously ridiculous:

Germany’s top court on Wednesday rejected calls to block ratification of the European Stability Mechanism, triggering a modest sigh of relief from financial markets and clearing the way for implementation of an important tool in Europe’s effort to contain its three-year-old debt crisis.

In a decision read from the bench of the Federal Constitutional Court in Karlsruhe, the red-robed judges rejected six requests for an injunction to prevent Germany’s president from signing the treaty establishing the 500 billion euro ($643.7 billion) permanent rescue fund.
Reuters Judges at Germany’s Federal Constitutional Court in Karlsruhe.

The decision eliminates the threat that Germany, the euro zone’s largest economy and paymaster, would be blocked from participating, which would have effectively scuppered the fund and potentially set off a financial panic.

What the courts do, both in Europe and the USA, is to come up with language to circumvent the clear language of black letter law. Consider the following text:

a) Article 136 (3) TFEU does not change the orientation of the monetary union, nor does it remove the prohibition contained in Article 125 TFEU of assuming the liabilities of other Member States; it merely contains a clarification. The measures of stability support of the Member States are not measures of monetary policy for which, under Article 3 (1) point (c) TFEU, the European Union would be competent. The granting of financial assistance is a measure of economic policy, for which the Member States are competent.

In other words, the prohibited action is legal, not because the prohibition has been removed by court fiat, but because the prohibited action is supposed to not be the action everyone knows it to be. In this case, mere assistance is being granted, which is legal, instead of liability being assumed. Of course, the assistance being granted is the effective assumption of the liability.

This is why Tocqueville was correct to point out that it was America’s populace, and not her laws, that made America great. But America’s populace has changed dramatically, and that is why, as Tocqueville correctly predicted is no longer great.