A Conversation on the Constitution: Judicial Interpretation
24 Dec 2016 Leave a comment
in constitutional political economy, law and economics, Public Choice Tags: constitutional law, Justice Scalia
Piers Morgan Interviews Supreme Court Justice Scalia – Part 2
06 Dec 2016 Leave a comment
in comparative institutional analysis, constitutional political economy, law and economics Tags: abortion, Justice Scalia
Piers Morgan Interviews Supreme Court Justice Scalia – Part 1
04 Dec 2016 Leave a comment
in comparative institutional analysis, constitutional political economy, law and economics Tags: Justice Scalia
Uncommon Knowledge with Justice Antonin Scalia
28 Nov 2016 Leave a comment
in law and economics Tags: Justice Scalia
Justice Scalia on killing terrorists with drones
27 Sep 2015 Leave a comment
in laws of war, politics - USA, war and peace Tags: drones, Justice Scalia, war on terror
Unexpected kind word for Parliament House protesters @GreenpeaceNZ @RusselNorman @NZGreens @greencatherine
15 Aug 2015 2 Comments
in constitutional political economy, economics of crime, environmental economics, global warming, law and economics, liberalism, politics - New Zealand, Public Choice, Rawls and Nozick, rentseeking Tags: civil disobedience, climate alarmism, expressive voting, Greenpeace, John Rawls, Justice Scalia, Leftover Left, rule of law
PRESS RELEASE: Greenpeace Parliament Climbers Convicted of Trespass bit.ly/1DRfKMG #realclimateaction http://t.co/sxRokpwRNk—
Greenpeace NZ (@GreenpeaceNZ) August 13, 2015
The Greenpeace vandals who trespassed at Parliament, climbing up to put signs down the front in flagrant disregard of the most ample possible options for peaceful protest right outside at least had the integrity to plead guilty. That shows some sort of fidelity to law and an acknowledgement that what they did was a criminal offence.
John Rawls makes the point that the purpose of civil disobedience is not to impose your will upon others but through your protest to implore them to reconsider their position and change the law or policy you are disputing.
Rawls argues that civil disobedience is never covert or secretive; it is only ever committed in public, openly, and with fair notice to legal authorities. Openness and publicity, even at the cost of having one’s protest frustrated, offers ways for the protesters to show their willingness to deal fairly with authorities. Rawls argues:
- for a public, non-violent, conscientious yet political act contrary to law being done (usually) with the aim of bringing about a change in the law or policies of the government;
- that appeals to the sense of justice of the majority;
- which may be direct or indirect;
- within the bounds of fidelity to the law; and
- whose protesters are willing to accept punishment. Although civil disobedience involves breaking the law, it is for moral rather than selfish reasons; the willingness to accept arrest is proof of the integrity of the act.
Rawls argues, and too many forget, that civil disobedience and dissent more generally contribute to the democratic exchange of ideas by forcing the champions of dominant opinion to defend their views.
Legitimate non-violent direct action are publicity stunts to gain attention and provoke debate within the democratic framework, where we resolve our differences by trying to persuade each other and convince the electorate.
Too many acts of non-violent direct action aim to impose their will on others rather than peaceful protests designed to bring about democratic change in the laws or policies of the incumbent government. That ‘might does not make right’ is fundamental to the rule of law. As United States Supreme Court Justice Antonin Scalia said
The virtue of a democratic system [with a constitutionally guaranteed right to free speech] is that it readily enables the people, over time, to be persuaded that what they took for granted is not so and to change their laws accordingly..
Both sides passionately but respectfully attempt to persuade their fellow citizens to accept their views. Win or lose, advocates for today’s losing causes can continued pressing their cases, secure in the knowledge that an electoral loss today can be negated by a later electoral win, which is democracy in action as Justice Kennedy explains:
…a democracy has the capacity—and the duty—to learn from its past mistakes; to discover and confront persisting biases; and by respectful, rationale deliberation to rise above those flaws and injustices…
It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.
The process of public discourse and political debate should not be foreclosed even if there is a risk that during a public campaign there will be those, on both sides, who seek to use racial division and discord to their own political advantage. An informed public can, and must, rise above this. The idea of democracy is that it can, and must, mature.
Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people. These First Amendment dynamics would be disserved if this Court were to say that the question here at issue is beyond the capacity of the voters to debate and then to determine.
John Rawls’ view that fidelity to law and democratic change through trying to persuade each other is at the heart of civil disobedience reflects the difference between the liberal and the left-wing on democracy and social change as Jonathan Chait observed this week:
Liberals treat political rights as sacrosanct. The left treats social and economic justice as sacrosanct. The liberal vision of political rights requires being neutral about substance.
To the left, this neutrality is a mere guise for maintaining existing privilege; debates about “rights” can only be resolved by defining which side represents the privileged class and which side represents the oppressed…
Liberals believe that social justice can be advanced without giving up democratic rights and norms. The ends of social justice do not justify any and all means.
How the left-wing and liberal visions of democracy are different nymag.com/daily/intellig… http://t.co/Qk5vS9SaV4—
Jonathan Chait (@jonathanchait) August 13, 2015
In a democracy we resolve our differences by trying to persuade each other and elections
17 Jul 2014 Leave a comment
Justice Thomas as an unlikely hero for the marijuana decriminalisation movement – updated
05 Jun 2014 Leave a comment
in Federalism, law and economics, politics - USA Tags: decriminalisation of marijuana, division of power, drug laws, Justice Scalia, Justice Thomas, meddlesome preferences
The decriminalisation of marijuana possession by American states doesn’t really matter that much because it is still illegal under Federal law. Marijuana markets moved into the open in the states that decriminalised it because the federal authorities have chosen not to enforce their laws against these traders.
Justice Clarence Thomas is a radical view of the interstate commerce clause. This clause of the US Constitution at the height of the new deal was reinterpreted to allow Congress to regulate both interstate commerce and intrastate markets that affected interstate commerce.
The current interpretation of this clause supported by everyone on the US Supreme Court but Thomas is Congress can regulate the possession of marijuana because this affects interstate commerce. Justice Scalia explains:
…the Commerce Clause permits congressional regulation of three categories:
(1) the channels of interstate commerce;
(2) the instrumentalities of interstate commerce, and persons or things in interstate commerce; and
(3) activities that "substantially affect" interstate commerce.
As …the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so "could … undercut" its regulation of interstate commerce.
… This is not a power that threatens to obliterate the line between "what is truly national and what is truly local.
Justice Thomas rejects this view and wants to return to the original meaning of the interstate commerce clause:
Respondent’s local cultivation and consumption of marijuana is not "Commerce … among the several States."
Certainly no evidence from the founding suggests that "commerce" included the mere possession of a good or some personal activity that did not involve trade or exchange for value.
In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana
and
If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress’ Article I powers – as expanded by the Necessary and Proper Clause – have no meaningful limits.
and further:
If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States.
This makes a mockery of Madison’s assurance to the people of New York that the "powers delegated" to the Federal Government are "few and defined", while those of the States are "numerous and indefinite."
In closing, Thomas said:
The majority prevents States like California from devising drug policies that they have concluded provide much-needed respite to the seriously ill.
Our federalist system, properly understood, allows California and a growing number of other States to decide for themselves how to safeguard the health and welfare of their citizens.
The adoption of the view of Thomas could not be more unlikely. Most federal regulation in the United States is based on linking it to the power of the Congress to regulate interstate commerce and foreign commerce. Thomas once noted that:
[w]hen asked at oral argument if there were any limits to the Commerce Clause, the Government was at a loss for words
The decriminalisation of marijuana in the United States will have to be based on more and more states choosing to decriminalise in the hope that the Federal Government does not enforce its rather savage criminal laws on drugs in their state. That’s is what seems to be happening. Whether that will still happen when a Republican wins the White House in 2016 remains to be seen.
Three American States have even passed hopelessly unconstitutional right to try laws. These laws purport to allow the residents try experimental drugs that have not yet received approval of the Federal level by the FDA.
Even under the narrow interpretation of federal powers by Justice Thomas, these laws are unconstitutional. These laws nonetheless have social value because they are push the boundaries of the current political sense consensus.
This evaluation applies to marijuana decriminalisation laws too. They test the current boundaries and can create the possibility of social change through democratic action.
Many who want a strong central government forget that the social agendas of the crazies to the left and right of them will also be implemented all in good time at the national level as well. Power rotates in any democracy so with enough time the meddlesome preferences of most sides of politics will be legislated into law so that everyone ends up been annoyed and over-regulated and more than a few end up before the courts and even in prison.
A wiser course in constitutional design is to give the parliament as much powers as you might wish those wreckers and crazies that make up your political opponents to have when they come to office, as they surely must in six or nine years time. Even the British Labour Party took an interest in devolution and an assembly for London after 15 years of Maggie Thatcher, good and hard.
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