I liked what he had to say. It was quite controversial. He actually said that monarchy was the best form of government. I never heard someone say that before even though I also think it.
What this post is really about are ideas about legal positivism.
Chrisopher Ferrara: We’re operating under the shadow of Roe v. Wade. But R v W is only one of the many emanations of the doctrine known as legal positivism. What is legal positivism? It is simply the doctrine that the law is what is posited. Put forth. So let it be written, so let it be done. It doesn’t matter whether there’s a natural law standard underlying a legal enactment, a utilitarian standard or any standard at all.I then read this opinion article from Yahoo!News, "Elena Kagan: Could she defend the Constitution's purpose?"
The Holmes model: sneering at natural rights[sic]Instead, they follow the path marked out by Justice Oliver Wendell Holmes, Jr., who sat on the Supreme Court from 1902 to 1932. “All my life I have sneered at the natural rights of man,” Holmes wrote, reflecting his view that the individual rights venerated by the Founders have no objective validity and therefore no role in discerning the Constitution’s meaning. ...This got me to thinking about the scary lecture by Bill Schulz of Amnesty International and Unitarian Universalist Association, "What Torture's Taught Me", "...[W]e are left with public opinion as the basis for determining rights." (p. 14)
In a written follow-up, Kagan named Holmes as the last century’s most influential Supreme Court justice, stating: “His opinions ... set forth the basic rationale for judicial deference to legislative policy decisions.” Having discarded the Constitution’s actual purpose as irrelevant to judging, Kagan is left with Holmes’s concept of the Constitution as a mechanism for implementing unlimited majority rule. ...
Nor would she fail to find authority for the government to bully banks into joining bailout schemes, launch massive “stimulus” spending of taxpayer money, and cap carbon emissions. If it’s commerce, the majority can control it. During her testimony, Kagan even lectured Sen. Coburn on the majority’s constitutional right to (hypothetically) require that each individual eat three vegetables a day – allowing herself only an inconsequential personal opinion that such a dictatorial law would be “dumb.”
If we leave rights up to people, what basis will they use to determine the scope? Without direction to the telos of the person (God), we are only on the road to the real tyranny of the democratic majority and the oligarchy of SCOTUS.
This is one of the reasons why I think the abortion debate is so important. It boils down governance to the questions of 'what is man?’ and ‘what is man for?' as Christopher Ferrara said in his interview.
