Supreme Court Justice Stephen Breyer has announced his retirement, and President Biden has promised to nominate a liberal African American woman to the seat. While most pundits are focused on the fact that Biden is limiting his potential nominees to a specific race and gender, now might be a good time to discuss the more important matter of judges per se.
Let’s start by defining some terms:
Natural laws are abstract concepts that apply to an unknown number of people in an unknown number of situations. In other words, they are broadly defined to encompass (nearly) every possible situation imaginable. They’re part of a spontaneous order, or “nomos”, and as such arise from our physical circumstances rather than human design. Think “life, liberty and the pursuit of happiness” from the Declaration of Independence.
Individual liberty is a natural law for two physical reasons: No one can know the future, and value is subjective, so no rule can be created dictating what another should do in every situation. Put another way, an individual is free to act as they see fit within the bounds defined by law.
Property rights, including the concept of “self-ownership”, are central to individual freedom since to survive one must consume property in the form of food, water, and medicine. These things must either be earned, borrowed, or stolen, all of which involve the concept of ownership.
Judges, in an ideal world, exist to apply man-made rules to the enforcement of natural law, and that’s all. But in recent years, U.S. courts have become politicized and judges have been given a second mandate: achieving hoped-for outcomes. Where applying natural law — and man-made rules derived from natural law — to specific cases was once relatively straightforward, it is now, in many instances, politics disguised as jurisprudence.
Taking a real-world example, President Biden has promised to be “the most pro-union president” in history, and is, as this is written, considering Judge J. Michelle Childs for the open Supreme Court seat. Judge Childs previously worked for a prestigious South Carolina law firm and specialized in labor and employment law. She helped employers defend against lawsuits brought by employees, including allegations of racial and gender discrimination.
If Judge Childs is a judge in the original sense, her background should be irrelevant because her job on the Court is to simply apply the law to the specific circumstances of a case. Whether a judge is personally “labor friendly” — or the opposite — should make no difference.
But special interests are seeking outcome-based rulings by activist judges who pursue specific goals or attempt to steer society in a direction they deem “best.” Like modern-day Utilitarians, they seek “the greatest good for the greatest number of people” without regard for natural law.
So what’s the problem with activist judges crafting a “better” society and righting wrongs? The general answer is “unintended consequences.” No one can know how a society subject to natural law will evolve, so politicizing that evolution means risking the progress that would otherwise have been achieved.
More specifically, losing the rule of law diminishes property rights — the foundation of a free-market economy. Risk-taking, entrepreneurship, contracting, and pursuing profit become less secure and more costly. When the cost of something goes up, you get less of it. As property rights erode, wealth creation slows and society becomes poorer.
A clear understanding of the problem leads to an equally clear conclusion: Vigilant defense of the rule of law should be embraced by all citizens, regardless of political ideology.
Brian Schroeder is an economist and legal philosopher following the Austrian tradition. He is the founder of OCIO Monitor, a specialty investment consulting firm.
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7 thoughts on "It’s Time to Talk About Judges – And Natural Law"
Using the Two tools, that are not taught in Public schools, to achieve individual Rights is the path to restore the Common Law Principles that are closer to the Declaration of independence, than the Civic and Civil Law System that is Taught through Elementary to Advanced Law Schools.
Namely A> Using the Post office as the Senior witness of the Contract {Contract = Private Law} that you Pen Between the Entity that you Create, But Different than the Government issued Birth Certificate, and the God-Created-Man {or Woman}
B> the Use of Correct-Shipping-Sentence-Structure-Parse-Syntax-Grammar, So that the Court-Agents can NOT bring in any Controversy. + the Document can be Witnessed by the :Postmaster-General.
“Vigilant defense of the rule of law should be embraced by all citizens, regardless of political ideology.”
The corollary of that is the ‘vigilant ENFORCEMENT of the laws should be embraced by all citizens, regardless of political ideology.’
That is what is supposed to happen Constitutionally, and regardless of how “bad” a law is. The reason for that is because the Legislative branch is responsible for making the laws, and thus the laws extant, and if a law is proved to be “bad” – which should be determined by full and consistent enforcement of it- then it is the Legislative branch that should change it, not via a judge’s ruling.
What’s been happening is the liberal “Left” knows they can’t make the Congress change the laws in their favor so they seek changes through the courts.
The Congress actually supports that because it avoids them having to deal with changing the laws and facing voter backlash.
So that’s why there has become so much emphasis on WHO is to be a judge. Rather than seeking the rare individuals who can separate their personal beliefs and values from the actual, literal laws as written and intended, individuals are sought who will interpret the laws ACCORDING to their personal beliefs and values. A complete reverse of the Constitution’s structure and intent.
A fundamental difference is a juror’s belief that the Constitution is a “living, breathing document” that can have ever-changing meanings and nuance versus one that means what it says literally and is meant to be immutable over time.
The Constitution is not a body of laws per se, but instead a governmental structure that delineates and limits authorities and responsibilities precisely to institutionalize liberty (an individual’s freedom from UNLAWFUL government.)
Excellent article. Insightful!