Povert

They’re doing it again…

I don’t have much to add to that. I just hope our lawmakers aren’t crazy.

I’m currently in the middle of a debate with some family over the U.S. Supreme Court.

It’s been interesting.

Part of my problem is that I tend towards moderate liberalism (I didn’t realize I was moderate until somewhat recently). This is not especially helpful in arguments. The problem is that I readily (sometimes actively) point out or admit to my own mistakes. I’m not going to stop doing that, but this can be perceived as a lack of solid grounding. Anyway, I’m not interested in “winning” arguments.

There are a couple points of contention. One is to what extent the courts can “interpret” the Constitution, and whether they have exceeded their authority in particular cases or in general. Another is the fact that the judges are appointed by democratically elected representatives. The last is kind of a side discussion, but nevertheless an interesting one: to what extent any sort of ethical system should be adhered to, and whether ethical systems can fail.

I’m not going to name individuals, and I’m going to do my best not to misrepresent their views insofar as I understand them.

Interpretation

It is my belief that any law is subject to, and demands, interpretation with a measure of restraint. I think that that is inevitable and necessary. Take, for example, the eminent domain clause of the 5th Amendment:

…nor shall private property be taken for public use, without just compensation.

Yes, we are discussing Kelo v. New London.

There are two problems, as I see it. Nowhere is “public use” nor “just compensation” defined in the Constitution or its amendments. We tend to think of “public use” as involving infrastructure, but there is no federal law (so far as I know) that states that. The court ruled that under some circumstances economic development is a form of public use (some will argue that I’m wrong about “some circumstances”).

My understanding is that the condemned property will be used for a park (Fort Trumbull State Park), but that seems to be left out of most criticism of the decision. Critics concentrate on the justification of economic development.

So, what do you all think? Does economic development or the creation of a state park constitute public use? To what extent is this actually a park, since my understanding is that parcels of the land will serve commercial purposes?

I should also point out that while I tend to think it was a poor decision, I do think it was solidly based on precedent. The Supreme Court is not bound by precedent, but adherence to it is preferred. See the opinion for the precedents.

Appointed Judges

Despite well-reasoned (in my opinion) arguments for the lifetime appointment of judges, conservatives seem to take pains to emphasize that these judges are not democratically elected. I’m not quite sure what the intent of this emphasis is. It seems to be more of a critique of the judicial branch than of their decisions.

Reasons for lifetime appointments are spelled out by Hamilton in the Federalist Papers. I don’t quite understand whether there is a controversy here, or if there is, why. I’ve (surprisingly) yet to hear anyone cite the “good behavior” requirement for lifelong tenure, though I think that that would be a bad argument. As far as I can tell, “good behavior” concerns impeachable offenses, not judicial philosophy or acting on that philosophy.

My big fear is that people will start to treat judges the way we (unfortunately) treat presidents—that is, we seek to impeach them for political reasons—thus defeating the rationale for lifelong appointments.

So again, what do you all think? Why do conservatives constantly emphasize that the judges are appointed? I’m trying not to be cynical.

Ethical Systems

Ok, this one is much more open-ended. However, it arose out of discussion of judicial philosophy. I pointed out that strict interpretation of laws can bring about tyranny and the reinforcement of arguably unconstitutional laws. The question is whether flexible interpretation is better, worse or equivalent (and if so, to what degree).

It evolved because I pointed out that one way of criticizing ethical systems is to point out how they can lead to what we feel in our gut to be unethical consequences.

Someone brought up the so-called “Golden Rule” and asked how it failed. I responded briefly by pointing out how Kant stated that his Categorical Imperative (which is very similar) is not itself sufficient for a moral code. I would also argue that neither the Categorical Imperative nor the Golden Rule can give answers to a large number of ethical dilemmas. I can’t think of any situations where these rules would give a wrong answer, but plenty where they give no answer.

In these discussions, several editorials were referenced, though I have not referenced any yet (I’m a bit anal about referencing only court cases, law, and uninterested or politically impartial political theorists). In the interest of fair representation of opposing arguments, here are links to some of them:

• Better off dead by Jonah Goldberg
• Foreign law is not law by Thomas Sowell
• Confiscating property by Walter E. Williams
• Damaging ‘Deference’ by George Will

I think some of these are better than others, though I am ultimately not persuaded. Part of the problem is the mischaracterization, as I see it, of opposing arguments.

That’s the battle I’m really fighting, I think. My political temperament has developed into a severe skepticism of ad hominem and straw man arguments. I am not persuaded by cynical speculations on motive either. I have little patience for these things. They are a waste of time and are intellectually dishonest. That said, I’ve been guilty of these mistakes in the past. I try to avoid them now.

Anyway, for those of you who made it this far (here’s your certificate of completion), thoughts are welcome.

Here’s an article trying to pin down exactly what “judicial activism” is. If you’re like me, you’re sick of hearing the term get carelessly tossed around.

I wrote some stuff earlier in an email about the recently-decided Kelo case. I may revise it and post some of it here. Eh.

Someone want to clear this up for me? Does this make sense?

Epson said the lawsuits aren’t about keeping competing products out of the market.

“Epson believes that its ink-jet printers and genuine inks provide users with advantages in terms of print quality, durability and value for money, and as such welcomes fair competition in the marketplace,” said Bourne. “However, we have invested considerable resources into developing our unique technologies and will vigorously defend our intellectual property.”

All right. They say they aren’t trying to keep competing products out of the market, but that they will not hesitate to use every legal option to keep competing products out of the market.

I’ve never bought a third-party ink cartridge. To be honest, I’ve always been a little leary of them. But this makes me wonder. If Epson (or anyone else) can’t compete on the basis of having a quality product, but instead sue the competition so they can continue to sell ink cartridges as inflated prices, well, I suppose I’ve wasted my money.

Between this and my recent problems with my Epson, I think I’m going to avoid them in the future. Not that HP is much better.