Quote of the day—Paul Barrett

More than nonlawyers would expect, the justices are fair-weather textualists, demanding strict adherence to congressional language when it suits them and inferring hidden implications when that’s more convenient.

Paul Barrett
June 1, 2015
What the Abercrombie Bias Case Might Mean for Obamacare
[Not only more than what we expect but far more than what we can tolerate.

When they are inconsistent we don’t know what the “law” is at the time you make your life choices. Can you really call it “law” when it depends on the whim of someone in a black robe a thousand miles and years removed from the scene and time of the “crime”? In order for the law to be just it must be knowable at the time you make your choices.—Joe]


5 thoughts on “Quote of the day—Paul Barrett

  1. For it to be knowable there also can’t be too much of it. And that is blatantly violated in the past 100 years, with about 200 pages added every day.
    Barrett is exactly correct. One good way to realize that is to look at the term “scrutiny”, or “strict scrutiny”. It’s an utterly unconstitutional concept; basically it translates to “you can violate the law if you come up with some sort of excuse (scrutiny) or a really plausible excuse (strict scrutiny)”.
    For example, under “strict scrutiny” the 1st amendment really means “Congress may make a law abridging… only if it has a good excuse”, rather than the actual words of the amendment “Congress shall make NO law …”

    • You beat me to it. Hundreds of thousands of pages of “regulations” on the register, hundreds of pages added daily. The definitions and meaning of the regulations change and shift constantly.

      It is literally unknowable. The “law” you read yesterday and base your decisions on today may mean something different tomorrow … but that’s not an acceptable legal defense five years from now.

      And you bring up a great point on “scrutiny”. If we were to take the Constitution as literally as we should, “shall not be infringed” would mean “shall not be infringed”, and not “may be infringed if there’s a public safety concern, or zoning regulations change, or weapons technology advances past flintlocks, or the Democrats (and/or RINOs) are in power, or [fill in the blank(s)], because then it’s totally cool.” The SCOTUS’ role is to decide the Constitutionality of specific questions and lower-court decisions based on the text of the Constitution, not to redefine the meaning of that text to fit their world views under the guise of “scrutiny”.

  2. The way the majority opinion tortures words to arrive at their preconceived desired outcome really bothers me.
    Something really wrong with it and I can’t figure out what yet.

      • That’s one point.
        Another was stated nicely by Neil Smith, along these lines: the fact that most government employees consider the Constitution as a set of rules to be gotten around if possible, rather than what it actually is, namely “the highest law of the land”.
        The correct treatment for judges who act in this manner is impeachment (for perjury). The reality is that this doesn’t happen because Congress is 99% people who hate the Constitution, too.

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