The Law or "Good Ideas"

One of the best minds in America belongs to Dr. Walter E. Williams of George Mason University. If you click on the title to this article, you will be taken to his website, and the trip is worth your while.

Dr. Williams has that wonderful quality of making sense. His feet and his head are grounded in reality, and he routinely uses reason, not just when he can't think of any other argument. He occasionally substitute hosts for Rush Limbaugh, and, if you have not enjoyed his hostings, you have been missing a treat. By the way, he is an economist and holds an endowed chair as well as about every title and honor that a department head can get. These are for a man who is black, pro-freedom, pro-free market, pro-Constitution, pro-reason, pro-individual, and pro-capitalism. Note how the "official black registers" run by poobah black organizations never mention Dr. Williams or another great American, Dr. Thomas Sowell.

One of Dr. Williams' strongest positions involves epistemological relativism, although he does not use that term. Here is a down-to-earth example he gives. Referring to those who believe the Constitution should be a "living document," he often illustrates the error in this idea by drawing the scenario of a poker game with the advocates of a "living Constitution," as he does in this article. For obvious reasons, no one would go for such "living rules."

The same applies to ethics or morality. We have covered in past articles the notion of subjectivity in ethics. Culture wide, these are the supposed ethics of "moral relativism." Subjectivists utterly despise certainty. They hate certainty with regard to knowledge (what is true for you is not true for me), and they vehemently oppose moral certainty (there can be no objective ethics because what is right for you is not right for me, etc).

Well, the important principle to keep in mind is that moral or ethical principles DO NOT CHANGE. Concretes of life change all the time, but not the guiding principles. If one is found to be in error, then the error is changed to make the principle correct. Otherwise, the moral or ethical principles are contextual absolutes.

The same goes for epistemological questions, i.e., questions about knowledge. Facts do not change, and principles do not change. Knowledge grows, thus changing, and errors must be corrected, but truth is not malleable any more than reality is malleable.

Dr. Williams addresses these issues in his unique way:

Here's my question to you: Should we be governed by good ideas?

You say, "Williams, what do you mean?"

Here's an example: I regularly bike for fun, cardiovascular fitness and, hopefully, for a longer, healthier life. In my opinion, that's a good idea. That being the case, would you deem it proper for Congress to enact legislation requiring Americans to bike regularly or perform some other cardiovascular fitness exercise?

What if Congress didn't act on this good idea? Would you deem it proper and acceptable if five out of nine U.S. Supreme Court justices, in the name of "evolving standards" and promoting the general welfare, decreed that we all participate in some fitness exercise?

Let's look at it. It's easy to dismiss my questions and example by saying they're stupid and far-fetched. A more enlightened response would be to quote from Thomas Jefferson: "Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated." In other words, Congress holds only those powers delegated or enumerated in the Constitution.

Your followup response might be another Thomas Jefferson quotation: "[T]hat whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force." That means if Congress or the courts were to mandate biking, we could ignore it.

Suppose biking advocates saw no hope in getting Congress to enact legislation mandating regular biking and saw the U.S. Supreme Court as a means to accomplish their ends. Tell me your preference. Would you prefer the justices to rule along the lines they did in the recent Roper v. Simmons case, finding the execution of teenagers unconstitutional because, as Justice Anthony Kennedy speaking for the 5-4 majority said, "It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty"? Modified to fit my biking example, Justice Kennedy might say, "We acknowledge the overwhelming weight of international opinion that regular biking is a good idea."

Or, would you prefer the justices to say, "We're guided by the U.S. Constitution, and we find no constitutional authority to rule that Americans must regularly bike, despite your nonsense argument about the 'promoting the general welfare' clause; get out of our court"?

Whether "evolving standards," the "weight of international opinion" and good ideas should determine court decisions underlies much of the ongoing conflict over President Bush's federal court appointees. A federal court appointee who'd say his decisions are guided by the letter and spirit of our Constitution would be tagged by Democrat senators and a few Republican senators, such as Arlen Specter, as an extremist. They'd prefer justices who share former Chief Justice Charles E. Hughes' vision that, "We live under a Constitution, but the Constitution is what the judges say it is." Translated, that means we don't live under the Constitution; we live under tyrannical judges.

Many law professors, and others who hold contempt for our Constitution, preach that the Constitution is a living document. Saying that the Constitution is a living document is the same as saying we don't have a Constitution. For rules to mean anything, they must be fixed. How many people would like to play me poker and have the rules be "living"? Depending on "evolving standards," maybe my two pair could beat your flush.

The framers recognized there might come a time to amend the Constitution, and they gave us Article V as a means for doing so. Early in the last century, some Americans thought it was a good idea to ban the manufacture and sale of alcohol. They didn't go to court asking the justices to twist the Constitution to accomplish their goal. They respected the Constitution and sought passage of the 18th Amendment.

The founders were right about a lot of things, but they were dead wrong when they bought into Alexander Hamilton's Federalist Paper No. 78 prediction that the judiciary was the "least dangerous" branch of government.