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The Left’s New Push to Politicize the Law

Many on Left want to politicize American law and they are emboldened by the vacancy on the Supreme Court to achieve their long sought goal. But don’t take my word for it. Zephyr Teachout, a professor of law at Fordham, ex-candidate for the governorship of New York and current candidate for Congress, laments the current state of antitrust law: “If you can depoliticize antitrust law, you can depoliticize anything.”

The quote comes at the end of a long article in the New York Times in which many commentators complain about Supreme Court decisions friendly to business. The evidence that the Roberts Court has been the best court for business in decades comes from a study by Lee Epstein, Bill Landes, and Richard Posner. This study has been ably critiqued by Jonathan Adler, who notes, among other things,  that the study leaves out regulatory decisions quite unfriendly to business.

But my observation here is that neither the authors of the study nor the commentators in the Times article try to show that that the decisions in favor of business were legally incorrect. Rather they appear to believe either that the correctness of decisions is irrelevant for their purposes or that law is indeterminate—just a vessel for politics.  These are implications, to be sure; no direct evidence is supplied to clarify which is the case.

Take one of the areas that the Roberts Court in which it has been alleged to be pro-business: enforcing the Federal Arbitration Act. The Act is  in fact a sweeping direction to enforce contracts to arbitrate. It clearly does not permit states to frustrate  arbitration with laws that discriminate against the practice. Perhaps the Arbitration Act is a bad law, but the majority of the Court appears to be giving it full effect in their decisions. If the Court were giving a crabbed reading to an act in the civil rights area, law professors on the Left would be the first to criticize a narrow interpretation.

Antitrust law was indeed famously politicized in the New Deal. As Alan Brinkley’s The End of Reform discusses, the Roosevelt administration lurched from one theory of enforcement to another, making it impossible for businesses to plan. The Warren Court also provided little guidance, infamously suggesting in one paragraph in its Brown Shoe opinion that it would both consider the effects of mergers on competitors and that it would not. That kind of judicial decision certainly maximizes political discretion but undermines the rule of law. We should be grateful that antitrust now follows a coherent goal—maximizing the welfare of consumers—that does not put businesses at the whim of the political discretion of administrators or judges.

As Scott Shapiro shows in his fine book, Legality, a salient purpose of law is creating a plan that society can follow. Legal systems generate these plans to allow citizens of a polity to act even in a world with contentious moral and political disagreements. But if decision-makers consciously politicize law, that effort undermines law’s essential purpose, because it introduces into legal decision-making the endlessly disputed moral and political questions that laws are meant to resolve.

Teachout and other Leftists have every right to criticize decisions when they do not comport with law or to argue for changing the law. But politicizing the law threatens a stable and just social order.

Reader Discussion

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on March 16, 2016 at 12:20:29 pm

really?
And what precisely is NEW about any of this?

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gabe
on March 17, 2016 at 05:58:47 am

According to NPR, "Obama listed three qualities he sought in a potential Supreme Court justice:

1. An "independent mind, unimpeachable credentials, and an unquestionable mastery of law."
2. A recognition of "the limits of the judiciary's role."
3. Awareness "that justice is not about abstract legal theory, nor some footnote in a dusty casebook.""

Number three would seem to contradict number two. So much for the rule of law being a law of rules, dusty or otherwise. Apparently are all utilitarians now (and consequentialist libertarians are not helping). Maybe Robert George had a point. Lose natural rights and we lose. And we are losing natural rights.

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Mark Baughan
on March 17, 2016 at 09:52:02 am

An admirer of Robert George, your mentioning his comment got me thinking. It seems then, if not a century, this decades long regression from the rule of law - perhaps not entirely but mostly at the hands of Progressives (occurs to me, should be called Regressives), has ultimately led to the attack on natural rights/law. I'd think beginning more recently with Roe v. Wade and Doe v. Bolton. Yet it seems professor George is saying without the natural rights/law to guide, we have no rule of law or that at least is properly grounded. He's I correct, of course. I suppose it's a sort of catch-22. We chip away at the rule of law until we lose sight of natural rights/law, and finally we have the complete loss of the rule of law - anarchy, tyranny.

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EJW
on March 17, 2016 at 14:17:35 pm

400 Year Timeline of Thought Bringing “Natural Law” to “Physics-Based Ethics”
1. Francis Bacon, d. 1626; science, a study, rather than tradition or religion is the basis of politics.
2. Thomas Hobbes, d. 1679; science is not reliable, but laws are, because men decide them.
3. John Locke, d. 1704; laws must be grounded, and Biblical hermeneutics is the authority
4. James Madison, d. 1836 ; ““Before any man can be considerd as a member of Civil Society, he must be considered as a subject of the Governour of the Universe: And if a member of Civil Society, do it with a saving of his allegiance to the Universal Sovereign.”
5. Abraham Lincoln, a. 1865; “Why should there not be a patient confidence in the ultimate justice of the people? Is there any better or equal hope in the world?”
6. Albert Einstein, d. 1954; “It is the privilege of man’s moral genius . . . to advance ethical axioms which are so comprehensive and so well founded that men will accept them as grounded in the vast mass of their individual emotional experiences.”
7. Dwight Eisenhower, d. 1969; “Our form of government has no sense unless it is founded in a deeply felt religious faith, and I don't care what it is."
8. John McGinnis's comment on Scott Shapiro’s 2011 thoughts; “a salient purpose of law is creating a plan that society can follow.”
9. A Civic People of the United States: “Physics, rather than the study called Bacon and others call “science,” is mass, energy and space-time, from which everything on earth emerged starting 13.8 billion years ago. Everything includes what has emerged from physics, both the undiscovered and yet not understood realities and the god hypothesis with its diverse, unproven constructs.”

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Phil Beaver
on March 17, 2016 at 14:54:23 pm

Note: the ". . . " in the quotation of Einstein is ", impersonated by inspired individuals," which I left out to simplify. It is a mistake to modify Einstein's statements.

When we humans collaborate, we discover those laws that would satisfy Shapiro's laws [inhabitants] can follow (societies being preferential or imposed associations).

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Phil Beaver
on March 17, 2016 at 16:51:44 pm

" “Physics, rather than the study called Bacon..."

well, I guess that would put our Islamist friends in good stead as they don't DO BACON!!!!

Phil:
Interesting timeline - why do you ruin it with #9.

There is contained within the various items of the timeline the possibility for a rational argument; one could imagine a discussion of the changed understandings of politics, religion, etc.
Yet, you revert back to your favorite hobby horse - and ruin it!!

You appear to be reasonably well read and literate. Why do you detract from yourself and your argument, time and time again, with this rather unique conception of "science" and it's extraordinary powers and insights?

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gabe
on March 17, 2016 at 20:21:57 pm

EJW - I think you are saying that by one view the law as (mis)applied has chipped away at the underlying thesis of natural rights, refashioning them as plastic rights; and by another (George's) natural rights grounds the law, giving it legitimacy and scope. Or perhaps you are pointing to the reflexivity of the two. I see the catch-22, but would also describe it as a defining feature of political philosophy: what common markers bind us? Apart from any moral argument (which I take very seriously), natural rights is/was our constitutional Code of Hammurabi. Without them the Constitution becomes Ozymandias (to cover a little ground quickly). Hence Jaffa and Declarationism. What follows? My guess is "soft totalitarianism" first and hard totalitarianism second. The reason is because we will have assigned the value-giving function (i.e., the manufacturing, packaging, distribution and servicing of "rights") to the federal government. Acton had a view on that.

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Mark Baughan
on March 17, 2016 at 21:00:32 pm

Mark:

Quite right.

The trick seems to be to recognize that a) without the DOI we have no foundational predicate for our polity and b) without a sense of the natural rights limits TO the DOI we will ultimately begin (already have, to my mind) to simply broker and barter new rights such as political factions / circumstance require and end up with a totalitarian structure (getting close?) and ethos as the enforcement of newly brokered rights may only be assured with coercion and force.

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gabe
on March 17, 2016 at 22:36:50 pm

gabe - And there's the rub: that is a lot of heavy lifting for a concept so imperfectly defined. Which takes me back to my Robert George reference. Perhaps Locke was more clever than wise in equating the "divine" with the "natural" in the Second Treatise. Did we not try to sever that relationship in 1954 when, faced with Soviet totalitarianism, we added "under God" to the pledge of allegiance? I agree with those who argue that, regardless of why that addition was or was not right, it was a necessary addition because it limited government authority. Effectively it was a victory for common law over "expert law." I will try to add to your very useful observation by saying the trick also is to positively defend and even buttress natural rights as a negative space. That should hardly be difficult reading Madison ("Conscience is the most sacred of all property"); but unfortunately I recently read Joe Singer et al's "Statement of Progressive Property." So: how to positively defend a negative space in an increasingly utilitarian world?

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Mark Baughan
on March 18, 2016 at 09:32:28 am

Mr. Baughan, IMO, Joe Singer et al chose an unfortunate title, “Statement of Progressive Property,” but their premise is barking on the right tree.

If the reader takes the attitude--admits to self, "Singer et. al. make some valid points," some collaborative ideas can emerge. The reader can say, "I understand your concerns, and here's what I would do to address the few concerns I share."

For example, capitalism, so far, is generates evidence that it is the best economic system in humankind's history. However, it's internal status in 2016 seems divergent, with elites like some CEOs, large literal property owners, popular entertainers, and politicians enjoying excesses. At the same time, 2016, the influence of theism seems to have turned negative--a constant source of unsafe and insecure daily conduct.

Despite inclusion of the alienating word "progressive," the article has some good points. How can we use those points to improve capitalism?

I appreciate gabe's post, your response, and my consequential awareness of Singer er. al.

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Phil Beaver
on March 18, 2016 at 10:41:51 am

I repost this to respond (brackets) to past thinker’s thoughts and thereby clarify my effort to collaborate.

400 Year Timeline of Thought Bringing “Natural Law” to “Physics-Based Ethics”:

1. Francis Bacon, d. 1626; science, a study, rather than tradition or religion is the basis of politics. [Bacon was correct, as 390 years of Christian strife, e.g. slavery turned racism, has plagued America.]
2. Thomas Hobbes, d. 1679; science is not reliable, but laws are, because men decide them. [Unfortunately, “men,” so far, have failed to use the moral bedrock for deciding when opinion is needed in laws. “Men” perceive advantage by focusing on opinion, such as my god is better than your god.]
3. John Locke, d. 1704; laws must be grounded, and Biblical hermeneutics is the authority. [Wrong: for example, white Christians fought white Christians to prove that wrong-minded Bible verses justify slavery. Also, many people then still held the earth to be the center of the universe and flat and even today some don’t realize the earth is 4.6 billion years old.]
4. James Madison, d. 1836 ; ““Before any man can be considerd as a member of Civil Society, he must be considered as a subject of the Governour of the Universe: And if a member of Civil Society, do it with a saving of his allegiance to the Universal Sovereign.” [This is a valid statement if an only if “civil” is based on reality rather than opinion and “Governour of the Universe” means physics, however it emerged--humankind’s only evidence of reality.]
5. Abraham Lincoln, a. 1865; “Why should there not be a patient confidence in the ultimate justice of the people? Is there any better or equal hope in the world?” [Lincoln’s statement, coming just before white Christian Americans went to war against white Christian Americans refutes Locke’s Christian hope. Lincoln asserted hope in a civic people, as the signers of the 1787 preamble to the constitution for the USA did.]
6. Albert Einstein, d. 1954; “It is the privilege of man’s moral genius , impersonated by inspired individuals, to advance ethical axioms which are so comprehensive and so well founded that men will accept them as grounded in the vast mass of their individual emotional experiences.” [Einstein attributes the establishment of ethics as humankind’s responsibility and agrees with Scott Shapiro’s idea expressed below.]
7. Dwight Eisenhower, d. 1969; “Our form of government has no sense unless it is founded in a deeply felt religious faith, and I don’t care what it is.” [Eisenhower’s statement is valid if and only if “faith” means “trust in and commitment to” and the object of faith never inspires or motivates real harm. My preference is commitment to the objective truth, whatever it is, and referring to that as my religion does not seem wrong to me.]
8. John McGinnis’s comment on Scott Shapiro’s 2011 thoughts; “a salient purpose of law is creating a plan that society can follow.” [Thank you Professor McGinnis for your thought from Shapiro’s book; It inspired me to offer my views for collaboration by whoever will.]
9. A Civic People of the United States: “Physics, rather than the study or discipline Bacon and others call “science,” is mass, energy and space-time, from which everything on earth emerged starting 13.8 billion years ago. Everything includes what has emerged from physics, both the undiscovered and yet not understood realities and the god hypothesis with its diverse, unproven constructs.” Physics is the reality that science actually studies and religion aspires to imagine. [This entire post comes a couple days after Dr. Gordon A. Hughmark and I visited and he said, “Phil you have to express to everyday people the connection from physics to opinion.” I have been working on it and will post something soon.]

Reforming the law to conform to physics is a huge task, but that is no reason to delay. In fact, a civic people cannot wait for Phil Beaver to reduce his ignorance enough to write a book. The people in this forum can collaborate to get the job done, and the left-leaning professors will need to chip in. I have been remise in not pointing out that there is a related, but not the same effort in Bristol: http://www.peep.ac.uk/content/index.php. Note that gabe can easily reach Bristol from Coventry :-).

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Phil Beaver
on March 18, 2016 at 10:46:48 am

Sorry: remise should be remiss

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Phil Beaver
on March 18, 2016 at 11:10:33 am

Phil Beaver - Thanks for your reply. You make a good point about giving Singer a fair hearing, especially given the many cases of excess we see in the accumulation of private property. Locke more than anyone was vigilant in that regard (see "Lockean proviso"). We can do plenty to address the excesses in private property without violating, or indeed repudiating, natural rights. Singer's proposal to award stewardship rights based on perceived need is a disaster that I think speaks for itself. That he apparently would seek to do this through a jurisprudential manoeuvre rather than legislation also speaks for itself.

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Mark Baughan
on March 18, 2016 at 12:42:21 pm

Mr. Baughan, I am a chemical engineer, and a basic premise is "What goes in equals accumulation plus what goes out." What's been happening under Blackstone, in fact since Magna Carta, is that the politician-priest partnership (Machievelli, The Prince, Chapter XI) has been keeping from the poor's gods the principle that the nation's product becomes assets and consumables. The partnership builds assets while the poor merely consume--never building the wealth needed to extricate themselves from poverty. Today's median income allows the poor to save and invest only at the sacrifice of actual living. Conservative recognize these principles and out of fear protect the information for personal safety and security (John Locke). Progressives use these principles to try to become elite bureaucrats by representing themselves as champions of the poor.

Legislating redistribution based on Rawlsian fairness goes the wrong way. (Did Singer reference John Rawls?) I'm very busy but want to return to Singer.

A connected people of the United States sees the dilemma and wants relief but doesn't understand what the change should be. I think it is to stop using opinion-based law and theism. Perhaps adults focus on personal posterity: children, grandchildren, and beyond, striving for physics-based ethics and rational opinion only when the pertinent physics (which exists) has not yet been discovered. For example, Bible interpretation can be used to justify slaver, but physics adamantly opposes slavery and everyone knows it from personal experience. Without the Bible, the African slave trade would have been dead in the fifteenth century.

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Phil Beaver
on March 18, 2016 at 15:15:56 pm

Sorry:
1) "not yet been discovered" could seem more explicit with "not yet been discovered by humankind."
2) "slaver" should be "slavery"

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Phil Beaver
on March 20, 2016 at 12:58:21 pm

Goodness gracious, you are quite extraordinary, aren't you!

1) Physics (whatever the heck that may mean to you - which is clearly something rather different than either the dictionary definition or the general understanding) neither supports nor denies ANYTHING. Have you sample the neutrino's position on slavery, income inequality, progressive taxation, etc. etc.?
As for quantum mechanics / theory, the "evidence" suggests that something may be in two places at once, or that it may arrive at a destination before it left, or that it can be its opposite. That does not speak well of "physics" positional (physcial or moral) certitude. Cut the crap!
2) So what is physics position on slavery? In my distant past I recall the phrase that some such particle was slaved to another particle? Hmmmmmm? Again, cut the crap!
3) The Bible, as you say, "can be used to support slavery" - Indeed it can. And any fanciful mind can evince a proof that the Declaration of Independence may do the same thing.
Then again, both the Bible and the DOI NEED NOT be so construed. Nor may it be properly construed that the Bible is the primary reason that slavery continued past the fifteenth century.
Then again, how does one account for all those nasty little Churchmen who, in their pulpits, railed against human slavery. Oh, yeah, they must have not been reading the Bible.
Nor does your baseless and inflated claim account for the work of countless Spanish Jesuits who sought to protect the enslaved peoples of Central and South America. For their efforts, they were at first punished by the POLITICAL authorities NOT Church authorities. Eventually they prevailed.
Oh, yeah, the Jesuits did not read the Bible. What a fevered mind you must enjoy!

It is more appropriate to look at somewhat more common *motivations* of the people who actually engaged in slavery - profit motive and personal power / aggrandizement ought not to be neglected in these considerations. Physics, however, should be dismissed.

The study of slavery is a rather fertile field of inquiry. I suspect it does not need the greater level of fecundity you seek to supply!

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gabe
on March 20, 2016 at 13:49:38 pm

gabe,

Physics informs us that a person can arbitrarily take the products of a person's labor only by force. Physics is mass, energy and space-time from which everything emerges, including your comments. What physics emerged from, if anything, is yet to be discovered.

The dictionary relates the common usage that "physics" is the study of mass, energy and space-time and what emerges from it, but that is merely the popular usage. My usage is perfectly adequate, because I define it. Your attacks are boring.

The Bible came 13.8 billion years too late to have more than speculation about the origin of physics and it's progeny, life.

Some people want the earth to be the center of this universe, to be flat and to be thousands of years old. Tradition seems, to some people, a good reason to hang on to ignorance, but try convincing the public that DNA should not be used to relate criminals to their crimes.

The brutality the world suffers from Bible interpretation remains staggering. Let’s collaborate to end the brutality and together create a better future than the one we are contributing to.

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Phil Beaver
on March 20, 2016 at 16:52:08 pm

Well, I guess I DO have a problem with "physics" after all.
I don't believe in space-time. Time is a human construct. Physics knows no time and the universe is indifferent to "time." It simply goes about its unguided business - consequently, it being unguided is not particularly apt to provide "guidance" to humanity - or my chocolate Lab for that matter.

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gabe
on March 20, 2016 at 18:15:31 pm

Space-time is the customary dimensions in time. That is, length, depth, width and time.

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Phil Beaver

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.