Judicial Anarchism

Russell Kirk argued that there are three cardinal ideas in Western civilization. There is the idea of justice, the idea of order, and the idea of freedom. Justice is the process that protects a man’s life, property, natural rights, status and his dignity. Order is the principle and the process to ensure that a people will have just leaders, loyal citizens, and public tranquility. Freedom is the principle that a man is made master of his own life. These three great concepts are the cement of American society.

Some nations have order without justice or freedom. China is a modern example of a tyranny where order is maintained, but there is no justice or freedom. Somalia is an example where there is freedom, but no order or justice, the libertarian ideal. There can be no justice, of course, without order and freedom, which is the point of the American experiment. Our society is a regime of ordered liberty, designed to give justice, order and freedom all their due recognition and respect.

Most everyone in the American chattering classes, takes order for granted, In fact, they never think much about it. Instead, they spend their energy fretting over liberty and justice. That has been the basis of the political divide in our ruling class since the end of World War II. The Left has largely been focused on justice, particularly the ideas of status and dignity. The Right has focused on liberty, particularly with regards to property. Both sides of the political class have always assumed order was a given.

Of course, order is not a given. The Roman Republic is a good example of what happens when order breaks down in the ruling class. The elites slowly stopped enforcing its own rules on the ruling class. Whether out of necessity or convenience, order slowly broke down. By the time Marius and Sulla came along, playing by the rules was a sucker’s game, if you were in the ruling class. That set the stage for a strong man willing and able to ignore custom and seize control of the state.

The other way in which order breaks down is the example of Weimar Germany. The political class lacked the means and the moral authority to impose order. The chaos on the streets is commonly blamed for the rise of you know who. The disorder following the collapse of the Soviet union is blamed for the rise of the oligarchs. History is full of examples where the ruling class either lost control or lost the moral authority to maintain control. Every revolution in history follows this model to some degree.

What we are seeing in modern America is a strange combination of how order breaks down in a society. The American ruling class is coming to the conclusion that the rules really don’t work for them. They don’t have the will or ability to simply toss them aside and impose a new order, but they refuse to allow the old rules to limit their power. That’s what’s happening with the chaos we see in the courts. Judges, who are members of the ruling class, are willy-nilly overthrowing the constitutional order.

As Daniel Horowitz wrote last month, the Federal judiciary is claiming power for itself, that it has no constitutional basis. Judges are just making things up so they can overturn laws and thwart the constitutional power of the President. The Founders contemplated rogue judges, so there are provisions for removing a judge from the bench. That’s fine for one judge here or there, but no one has ever thought about what happens when the whole judiciary goes rogue. The remedy may be too dangerous to attempt.

Take a look at the list of suggestions in that article. Having states ignore Federal courts is not a small thing. it is a click away from secession. If a state legislature elected to go this route, they would be placing themselves in legal jeopardy. A federal judge could order the arrest of the speaker of the state house or the governor. Would the governor respond by having the judge arrested? It is not hard to see how this can get out of control, pitting the political class against itself, but also against factions in the public.

In a rational, liberal society, there should be debate and division, within the context of an agreed upon set of rules. What the court is doing in America is questioning the very idea of rules. They are claiming for themselves the right to make up whatever they feel like in the moment, in whatever incoherent fashion they choose. This is not judicial activism, so much as it is judicial anarchism. The founders never contemplated such a thing and our political class is based on the assumption that this is impossible.

Ultimately, a break down in civil order always ends the same way. Whether it is the result of civil war in the ruling class or a war between the ruling class and the people, there is a collapse in moral authority. Everyone loses respect for the old rules, which kept the old order. What comes next is also predictable. A man on a horse rides in and has the will and the means to impose order. That’s what comes next if the political class does not suppress what looks like a revolt from the bench. Otherwise, someone else will.

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74 Comments on "Judicial Anarchism"

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Andy Texan
Guest

Hey. The ‘rules’ don’t apply to important people. Every one knows that. They don’t apply to judges, black professional athletes, Hollywood celebrities, billionaires, Clintons and Obamas. etc.

Member
It’s not just that the rules do not apply. They literally have their own separate set of rules. I was pretty mad, but right, when I predicted that nothing would be done to Clinton even though she was quite clearly committing felonies left and right with her illegal “private” email server. Comey said as much in his bizarre acquittal in July 2016. What we learned in his little speech is that there is a heretofore unspoken *other set of rules* known as the “Well, she didn’t really mean it” rules. That other set of rules does not exist for people… Read more »
Andy Texan
Guest

The list of individuals and groups above propriety (not only laws) is very long indeed. All coincidently are progressives or allies of progressives.

Member
If you were to go back and listen to Comey’s press conference where he appointed himself Grand Jury, Attorney General, and Judge…he actually says very clearly that current government employees should *not* assume that this little ruling for Clinton applies to them in any way. A lot of people sort of brushed past that in their outrage that she was let off the hook, but to me that was the absolutely most damning part of his presser that day – that she really was being held to a completely different set of rules, and that those rules would not be… Read more »
Member

So the Bush family are progressives now?

Member
Yeah, there’s not a lot of good options left. I know that this is not history, but rather the insight of a man who had spent a lot of time studying the classics. In I Claudius Graves has his fictional Claudius observe that even if he stepped down and gave power back to the Senate, the Senate would do nothing, leading to some “wolf” seizing sole power in fairly short order. The legislative branch has the Constitutional power to fix this and won’t. The states could nullify, but that would lead to civil war or even greater Federal coercion towards… Read more »
Ron
Guest

Your post made me realize that although Constitutional checks and balance are distributed among the three branches, the Founding Fathers must have realized in the final analysis those provisions were mere bluffs to attempt to discourage misuse of accumulated power, as the implementation of them would lead to the nasty consequences you mentioned. It’s the same bet made by prison guards that the inmates will never figure out how easily they can take over the facility. The founders knew that lasting civil order can only be achieved by the individual moral character of each citizen.

Ryan
Guest
As George Washington put it: Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked: Where is the security for property, for reputation, for life, if the sense of… Read more »
Big_Celebrant
Guest
The Constitution was written by and for a sober and moral people. As for the checks and balances being a “bluff”, I can only say that our founding fathers knew that the only way to deterministically prevent usurpation of power, was to give the ferral government absolute power in the first place. They were caught between anathema and impotence – the ultimate ‘rock and hard place’ dilemma. What we witness today is the destruction of all that is God and Holy, using the very virtues of goodness and holiness – that is, (((they))) have used our charity, patience, and long-suffering… Read more »
jimvonyork
Guest

I think we need to built a lot more light poles in D.C. They will be needed in the months ahead.

Member

Just bought new bumper stickers for the cars and truck.
“Rope, Politician, Lamppost
Some assembly required”

Member
In the hundred or so years leading up to the French Revolution the Parlements, or judicial bodies battled with the royal power over legislative legitimacy to the point that the kings actually made a habit of exiling and attempting to replace them. The conflict made the courts the darling of the people until the Parlements began actually deciding in their own class interest in the lead up to the Estates General called by Louis XVI. At this point a potential moderating influence that might have been able to help form a constitutional monarchy lost moral authority and legitimacy ing the… Read more »
Member

Think on this: What kind of judicial response would you expect to see if it looks like there could be a convention of the states? Do you think liberal judges are going to sit back and watch the thirty Trump states outvote their favorite places? It would be an equivalent of what the Parlements did in 1789.

Member
I have performed this thought experiment many times tpd: Assume that somehow Congress finds the will to pass a proposed amendment clarifying the 14th with regards to the rights of citizens and illegal immigrants, specifying that the rights of the former == the full set of rights enshrined in the Constitution and that the rights of the later are very basic (food, shelter, medical care while awaiting deportation). Let’s further assume that 34 states give it the thumbs up and it becomes part of the constitution. What next? The outcomes I keep coming up with are Continued nullification by Prog… Read more »
Member

Right along the same line. The tendencies are there, it’s only a matter as to how they get expressed.

Member

All that needs to happen is for 3 of the Ninth Circuit appeals judges to disappear.
What the hell are we paying “Special Forces” for?.

Will
Guest
What remaining solutions exist to keep our country from following the path of Rome? For the first time in my life, I actually have no hope for the future of our nation (and it’s not because of Trump, though I don’t believe he’s going to solve anything either). It’s my opinion that Democracy only works as long as the electorate is adequately educated and informed which is fair to say is not the case anymore. We live in a time where the vast majority of Americans have access to the entire realm of human knowledge (the internet), but prefer to… Read more »
Ivar
Guest

I hope the U.S. breaks up so the 40% or so of the people who constitute ”my nation” have a chance to regroup and build again. Perhaps they will have learned something from this epic fiasco. Probably not.

Tax Slave
Guest

It will be located in the intermountain West with some of the Great Plains. But there is the problem of the southern border and Denver.

Al from da Nort
Guest

Any survivable such entity would require diverse food production, energy and a defendable seaport. So, without TX and LA (state not city), +++ this is a really bad idea

Calsdad
Guest
Yeah – I don’t know why so many of these survivalist types who envision a new nation springing from the remains of the FUSA – think that it’s going to be landlocked out in the Midwest. Pay attention: everybody lives on the coasts. There’s a reason for that. Do you really think that a landlocked nation surrounded by your enemies is a really good idea? If you do – it really calls into question anything else you might be asserting as what the future will turn out to be like. Complete and total fantasy is not a good way to… Read more »
Brianguy
Guest
@Tax Slaveand everyone else. You guys are way better educated than I am so pretty much I still stick to reading the comments. However what would make anyone think that if our beloved country ever separated that THEY would leave us alone? They continuously infiltrate. It’s their nature to destroy. They could never be satisfied until we are either seized, silenced or outright eradicated. I understand the level of peace it brings to ones mind to embrace that idea of separating regionally but it won’t happen. I personally would move if it was feasible. Feasible meaning to be left alone… Read more »
Member

This is why we need to work with the far right, rather than against them.

Johnmark7
Guest
Issac
Guest
It’s time to stop with the educated electorate bit. Politics is tribal. The failure of your political system is ado of too many tribes that have mutually exclusive MOs. Dumb homogenous societies can maintain order. Massively heterogeneous societies are incapable of order. Judicial tyranny is simply the white and Jewish upper class attempting to placate the unhinged desires of the minority coalition. The former out of sheer terror and the latter out of hatred for majority politics itself. Any unwinding of the political knot is going to involve incremental revelation about the nature of minority coalition politics. Namely, the ruling… Read more »
Jimmy
Guest

Helicopter rides.

Al from da Nort
Guest
Will; I agree that the USA will default on our national debt at some point because it is simply impossible to pay it, particularly politically, as you point out. But the important question is how it’s done and what happens afterwards. It may be that there is a scheme in the works right now using just the sort for of legal sophistry that Z Man describes above. The generic name of that scheme is ‘odious debt’. https://en.wikipedia.org/wiki/Odious_debt Now, the historical precedent is that there is some sort of coup or revolution and the new regime repudiates the debts of its… Read more »
Toddy Cat
Guest

IMHO, the breakup of the United States as currently constituted is both inevitable and desirable. A state defying the Federal Judiciary, with the backing of it’s people, and a fairly sympathetic president in office, looks like a pretty good way to get the ball rolling, to me. It’s dangerous, certainly, but the alternatives are Czechoslovakia 1992 or Spain 1936, and I know which one I prefer…

Member

Paging Lucius Cornelius Sulla.

Ron
Guest

The breakdown of order is attributed to post modernism ideology, a mutant offspring of Marxism, taught by the liberal Progs at our universities. Deconstruction of order is the default strategy of the Progs to bring about the chaos that permits them to take over. In their conceit, they overlook that setting fires to burn to the old order leads to a real danger of incinerating themselves in the very conflagration they created. Some hardcore progs of the nihilistic persuasion are not unlike the Joker, who seek to ignite the whole world just to watch it burn

D&D Dave in the Bubble
Guest
D&D Dave in the Bubble
“Judges are just making things up so they can overturn laws……” Hence why I am thankful to this day that Hillary is not POTUS where she would have filled every Supreme Court position with activist judges and effectively ended the US as we know it. Picture the 9th Circuit and that’s what the SCOTUS would be like for the next 25-30 years. One would have laughed 20 years ago if a Judge said the Constitution does give the legal authority for a 40 year old male pervert to go into a ladies room with 14 year old girls because of… Read more »
Member
The obvious counter-point to that being Chief Justice John Roberts who simply invented the ability to construe an unconstitutional mandate passed under the commerce clause as simply another tax. In this, he was a willing participant in the same lie that President “It’s not a tax” Obama told the American people. Once the ACA passed, the Administration immediately changed its tune to defend the law as a tax, and our supposedly conservative justice folded like a cheap lawn chair. The only answer is for the electorate to rewrite Constitutionally what the courts are empowered to do, and to grant to… Read more »
Member

The Federal Courts, except for the Supreme Court are the creatures of the Congress and could be abolished overnight.
IIRC it would not even need a Presidential signature.
It would be a meaningful lesson to the left.

kirk
Guest
living in the end stages of empire has never been a pleasant thing over the entire history of the world. such is where we find ourselves today. while the timing of the end is never known, save in its aftermath, the signs are always there. when our current empire breaks up, so will the nation, into two, or more, pieces. somewhere there will be a piece composed of those who believe in and are willing to adhere to the tenets of freedom, justice and order. the empire will be destroyed by financial/economic means. that is how all empires end –… Read more »
Alex
Guest
One variable that is different now versus any time previously is the distributed communications platform that is the internet. I wonder if “a man on horseback” will be enabled or hindered by not being able to control a message or message channels. To give an example, this blog. Say a Prog leader was able to stand up and say “out with you wrong-thinkers”, I’d presume that there would be a significant pushback from a large percentage of the population, some of whom read this blog. There would be enough information flow and coordination via other channels to resist any sort… Read more »
Dutch
Guest

Never underestimate the likelihood of huge numbers of people to believe false things, and to be led around by the nose by those who are sophisticated in the methods of mass psychology.

There is also the matter of when everyone has a voice and a soapbox, no one voice is worth very much.

Guest
Guest
The technical term for a society ruled by judges is a Kritarchy. This is a topic near and dear to me. This problem can be fairly easily addressed by restricting the subject matter jurisdiction of the lower Federal courts. I’ve written long comments about this topic on this blog and on the Kakistiocracy blog before. I won’t repeat them, but suffice it to say that Congress has complete authority to restrict the subject matter jurisdiction of the lower Federal courts. It should do so. (This was the solution of the Founders–Federal courts has very limited subject matter jurisdiction until the… Read more »
Ursula
Guest

Now that corruption has metastasized into every American facet, who will make and implement these much-needed fixes?

Rhino
Guest

I feel fairly sure that they would rule that such limitations on their jurisdiction are themselves unconstitutional.

Such a ruling would be ridiculous, of course, but which rulings anymore are not.

Tax Slave
Guest

What we need is a common enemy. We need to ally with Russia to destroy ALL of Islam down to the last filthy dog, worldwide, starting with Europe (the most common battelfield). China will come along in due time.

Don’t snicker, you know what the alternative is.

Member

The common enemy of most Americans are Jews.

Joey Junger
Guest
Just like you pointed out in your post on race relations, the rule for the people in charge is to to use magic if all else fails. The idea that the founders’ beliefs about liberty were intended to lead to something as nihilistic as dudes marrying dudes might seem insane to you or me, but some rabbis in robes went in a back room, sliced open the chicken, and read its entrails. The Haruspex auguries said men must marry men and borders are a thing of the past. You may disagree, but Kagan and Ginsburg have the black robes and… Read more »
Al from da Nort
Guest

Joey;
Well, they do claim to be mind-readers. IIRC, Judge Kennedy (the weather vane) claimed that sodomy was now OK because anybody opposed was animated by “animus” against it. There simply could be no other motive. /sarc.

So, no chickens were endangered in this ruling (!?) OTOH, you could be right because using ‘the reading of the entrails’ is one big way divination is done by pagans and satan worshipers (BIRM).

What do they use in actual Caribbean voodoo_? Probably goats are involved.

Sim1776
Guest

Chickens…

Alzaebo
Guest

Reading their own Spirit Cooking, they are.

Amateur Brain Surgeon
Guest
Amateur Brain Surgeon
The three branches of govt are supposed to be separate but equal but we all know the Judiciary is more equal than the other two. I actually had an insane fantasy that Trump would declare an act of the Judicial or Legislative Branch unconstitutional and void the act. That would be a great thing for our country as it would tend to return the constitution to us and we would decide what it means in terms of thus-and-such. For instance, Trump declares ACA unconstitutional and voids it and the competitors in next POTUS campaign would be constrained to advance their… Read more »
Anonymous White Male
Guest
I think that a fundamental problem for the American model was pointed out by John Adams when he wrote “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” When the American people became immoral or amoral it was the beginning of the end. I can’t say that Americans aren’t religious. They are. But not in a good way. There is no one more religious than a young SJW. But, the religion of America now is a religion without a sovereign God. I think that one of the things… Read more »
james wilson
Guest

The their search for political form the Framers held no man in such high esteem as Montesquieu. But they faced the great obstacle of his dictum about the size of republics: they must be small to succeed. Their response to this was original and brilliant, yet lasted but 72 years. In democratic government the citizen himself lends to it his own despotic tastes. There is not a single example of democratic government growing less despotic. To patch the system gives further life to the system, the catch-22 of conservatism.

Din C. Nufin
Guest

After 72 years of experience with the U.S. Constitution, the Confederates wrote one with interesting changes;
1. The U.S. allows the states to decide who may vote. The Confederate specifies citizens.
2. The “General Welfare” clause from the U.S. is removed
3. Corporate Welfare is eliminated
4. Line item veto given to the president
5. Amendments originate with the states
6. Federal officials, including judges, can be removed by states in their jurisdiction.

Number 3 above removes most of the tendency toward Oligarchy that has damaged the country.

Severian
Guest
At the risk of bringing you-know-who back into it…. The “prerogative state” seems to sum up our current predicament pretty well. You could get impartial justice in the 3rd Reich, the police were as competent and honest as police can be, and the legendarily impartial, efficient civil service functioned like always… provided you didn’t conflict with Nazism’s core values. Then the “prerogative” kicked in, and judges would overturn the law at whim to get the proper National Socialist result. Or the criminal police would kick your case over to the secret police. The civil service clerk would lose your paperwork.… Read more »
Former DC Native
Guest

Great article Z Man! You’re so right about this. Here’s an article today about how the NFL Commissioner Goodell ignores the League’s own rules on player conduct during the National Anthem. Our nation is truly at risk if we cannot hold the elites accountable for flouting the rules.

https://news.grabien.com/story-roger-goodell-ignoring-leagues-own-rule-book-letting-players

Karl McHungus
Guest

maybe goodell *can’t* get the players to follow the rules.

Gerard Van der Leun
Member

Wake me when the targeted assassinations of judges commences. That might put a crimp in them. Absent that, nothing left standing.

TomA
Guest

None of what you describe happened by chance (or incompetence). Just look to the Supreme Court, where many appointments were clearly made based upon political gamesmanship rather than judicial excellence. All of this is a consequence of electing politicians based upon their cunning rather than their civic integrity. The only civil way to fix this IMHO is a Constitutional Convention and the adoption of a term limits amendment.

Ursula
Guest

Term limits don’t make a difference if the donor class determines who runs for office. Contrary to top-dollar sophistry, money is not free speech. It corrupts.

james wilson
Guest

The restrictions on money corrupt more than the absence of restrictions because restrictions are targeted by the class already in the tree house.

Ursula
Guest

The entire political apparatus is set up around the donors. That has to be addressed in order for anything to change. So that once elected, the incumbents and their donors can’t prevent from running for office a decent nobody who actually wants to serve his people. The donors, mostly corporate interests, run the show. The money flowing from donors dictates what happens in our country. If the money were controlled, groups like AIPAC and Lockheed Martin and Aetna Insurance would lose their voices and constituents would have a chance of being heard.

james ?wilson
Guest

Your failure to harbor doubt that your argument might instead be a tool of the deep state is impressive. Control of money and speech always and everywhere favors the establishment and is invariably loved by progs.

Member

Nonsense.
Restrict the ability to donate to those eligible to vote.
Punish receiving donations from those not eligible by five years hard time.

kirk
Guest
given the powers that be and are apparent, what do you think the outcome of a constitutional convention would be? the constitution, spat upon and ignored, would likely be declared ‘dead’, or ‘no longer applicable’. the route is to demand a return to constitutional govt and electing those who would do so. those who do not, recall/impeach them and continue the process until only ‘citizen representatives’ actually run for office. it takes a spine to do what is right. this leaves out, as a guess, 95% of the slimy creatures living in the cesspool on the potomac. they can only… Read more »
Jimmy
Guest
I was naively disappointed at trumps response to the travel ban Watsonification as a simple appeal. I mean, the solution to the blatently rogue courts (gay marriage in particular was an unseemly touchdown dance gkr this stuff) isn’t more courts. It took six months to get to the supreme court where they reapplied the faintest whiff of legitimacy whole removing it’s teeth. By that time of course every Somalian, Sudanese and Libyan and his dog has streamed in aware that time may be limited. I was allowing myself to hope for an Andrew Jackson “let him enforce it” moment which… Read more »
Jimmy
Guest

The turn of phrase I enjoy to describe the supreme court is “The Poz Ayatollahs”

Ivar
Guest

“[T]he Federal judiciary is claiming power for itself which has no constitutional basis.” I note that the Federal courts have been doing this since at least 1803. The Marbury v. Madison power grab was the greatest of all and set the stage for everything that has followed.

Member

Judges have never been appointed “for life” but only “for good behavior”. That certainly does not include judicial anarchy or judicial tyranny..

forest grump
Guest

very cogent and insightful. nobody has yet tried to “impose order” on a nuclear power before. I think once the bats are off a number of interested parties will want parts of the floundering giant . the UN would be glad to
” help”, Nato too, the Chinese ,maybe the Russians , certainly mexico will want to ” protect its citizens living in the US “. It’s gonna be a heck of a show.

Glen Filthie
Guest

Hmpfffff.

Men, not so fast. We have allies:

https://www.youtube.com/watch?time_continue=117&v=UXzD-RkZnQg

And the shitlibs have a mutiny brewing within their ranks. Everybody – stay positive. Our host’s ratings and readership is growing. The NFL is losing money because their players are niggers and not black people. Hell’s bells – Hillary got KICKED to the curb while the nation roared with derisive laughter.

No defeatism, you lot! That’s an order! 🙂

Pimpkin\'s nephew
Guest
A.J.P Taylor was commissioned to write the history of England from 1914-1945 for the Oxford History of England series. This is his opening observation: “Until August 1914 a sensible, law-abiding Englishman could pass through life and hardly notice the existence of the state, beyond the post office and the policeman. He could live where he liked and as he liked. He had no official number or identity card. He could travel abroad or leave his country for ever without a passport or any sort of official permission. He could exchange his money for any other currency without restriction or limit.… Read more »
Eclectic Esoteric
Guest

A man on a horse, or perhaps a man in a tank will maintain order in the streets if the fires draw too closely to the homes of the cloud people. For reasons I can’t comprehend, they think being progressive in itself is a ghetto pass. The virtual reality of blue pill justice is the map that will never match the territory.

Saml Adams
Guest

Just a little, slightly off the topic observation. Back in 2012, what I observed during Sandy, was that the Cloud folks didn’t fare very well in a general state of disorder. Their basic survival skills are, shall we say, atrophied.

Eclectic Esoteric
Guest

Overprotected Snowflakes have never developed risk assessment skills, so the world really is a dangerous place for them. They will be forming puddles in the street when the safe spaces are gone. Under every antifa mask is a crying toddler.

sirlancelot
Guest

The people in power do not fear the American people and they do as they please.

Unless we go Banana Republic to topple the corrupt regime or torches and pitchforks storming Frankenstein’s Castle it’s doubtful anything will change.

Mister M
Guest

‘Are you serious? … Are you serious?” – Nancy Pelosi

StAugustine
Guest

So Napoléon, not Hitler.

Member

Isn’t this one of those “how many divisions has the Pope moments?
This shit would end if Trump just stopped paying the salaries the corrupt judges.

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