Moderate Deontology: Against Ron Paul

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In two previous posts, I first presented an account of deontological ethics in which it is sometimes ok to go against moral principles in order to previous seriously grave consequences. Moral principles are not all absolutes. Many of them have thresholds, and if the consequences are bad enough the principle is no longer in effect. I then argued that this kind of deontological view allows a pro-life voter to vote for a pro-choice candidate who is not as bad (to a pro-lifer) than a more strongly pro-choice candidate (and who is better in the voter's mind on other issues).

Now I want to apply the same kind of reasoning to a situation within the Republican primary. A commenter on this post said the following:

Actually, it is NOT the federal government's purpose to protect our life, liberty, and property. The federal govt's job is much narrower than that, and is spelled out clearly in Article 1, Sec 8, for anyone who can read. If you insist on giving the feds more powers than those granted by the Constitution, you promote lawlessness and open up to the Congress and Executive a boundless field of power, no longer subject to definition.

The Bill of Rights doesn't say, "Congress shall make laws protecting our freedom of speech" (for example.) No, rather it's a negative, "Congress shall make no law..." Congress is prohibited from infringing on our rights. The Constitution should be viewed as a restrictive document, defining and restraining federal power.

The only crimes Congress has a right to punish are piracy, counterfeiting, and treason. Murder, jaywalking, rape, embezzling do not fall under federal jurisdiction, therefore may not be punished by the feds. Abortion is murder. But even if abortion were "healthcare" it would still be without federal jurisdiction, as healthcare is not listed among the enumerated powers.

To insist that the feds must prosecute abortionists is to trash the whole Constitution in letter and spirit. If we amend the Constitution to prohibit abortion (in order to restrain the out of control courts) then we are also putting the nail in the coffin of federalism, and altering the spirit of the Constitution.

Ron Paul is the most principled and consistent opponent of abortion in DC today! He is principled rather than pragmatic; ends do not justify means.

One issue is the original meaning/intent of the Constitution as opposed to all that's been added in how courts have interpreted the Constitution and how the government now functions as a result. The U.S. Constitution does give a very narrow purpose for Congress's role. But two things might be said for rejecting such a narrow view today, and neither involves the idea of a living Constitution that typifies judicial liberalism.

Does the Constitution set up the judiciary branch to interpret the law and the Constitution? The Constitution never speaks of judicial review (although the Federalist Papers do). The Supreme Court is never given any task at all in the Constitution itself, although it is said to have power extending to all cases in law and equity that arise under the Constitution. But power to do what?

One proposal is that it simply applies the law and the Constitution. But applying requires interrpetation when something isn't clear. Here are two views on how this can be done. One might think that when the Supreme Court interprets something wrongly it is not law and should not be followed. On the other hand, one might think that when it gets it wrong it is still binding as law until that decision gets overturned. The standard view is that the second approach is correct. If the Supreme Court decides something wrongly, we could simply ignore it and go with what the Constitution really says. The problem is that different people will have different views on what the Constitution says, and there needs to be some body to declare what it says, even if they get it wrong. It is simply no rule of law to allow everyone to take the Constitution to say whatever they want it to say. It is far better to have a rule of law, have a Supreme Court who interprets the Consitution in a binding way, and sometimes (or even often) gets it wrong.

This is in fact what we do in the United States, and most politicians recognize it. Ron Paul does not. He is in the minority, and there's a reason he is. He is against the rule of law while pretending to be in favor of it. It is not lawlessness to do this. It's only lawlessness on a very narrow reading of what counts as law in terms of the rule of law. If the correct interpretation of what the Constitution says is binding on how we function as a country, then it is against the law to do this. That is true. But following Rep. Paul's view leads to a lawlessness on a different level, one that is far worse.

Dr. Paul and his supporters claim that his view is true conservatism and that the standard view is mere pragmatism. I disagree. There is a sense in which one conservative principle taken absolutely governs and determines his view. But there is another kind of conservatism, one that I have been trying to argue is more important, that counts against his sort of view. The view Paul assumes relies on a traditionalism of sorts about how we should interpret the Constitution. The view most people hold relies on a traditionalism of a different sort.

The second kind of conservatism allows for moving back toward the result Paul envisions. That movement back could involve a radical overturning of precedent as Justice Thomas and to a lesser extent Justice Scalia would often prefer to do. Alternatively, it could involve a more incrementalist approach toward undoing precedent that has come to be the rule of law, a view more in line with what Chief Justice Roberts and Justice Alito seek to do. Both views count as judicial conservatism, but both views assume that precedent is binding until undone or chipped away at. According to the Paul view, however, if I understand him correctly, it doesn't matter what the Supreme Court happens to decide. What matters is what it should have decided, and that is binding, even if no authority recognizes it.

But that hardly seems to me to count as a rule of law. Thinkers as diverse as Thomas Aquinas and Thomas Hobbes recognize that something is law only if some authority can back it up with force. For Aquinas, this includes God's ultimate enforcement of all moral law via judgment in the last day. For Hobbes, it leads to a much more limited view of what laws there happen to be. But it seems to me that Paul has a view of what counts as law without an authority backing it up, unless perhaps he sees God as that authority upholding the U.S. Constitution. Aquinas wouldn't approve. Ultimately God does oversee all of creation, and thus God does hold every authority to principles of justice and morality as included in the moral law. However, that doesn't mean that God upholds every law that happens to be written merely because it's written. The level of human law doesn't get God's endorsement in the way the moral law does, except insofar as it coheres with the moral law. So it would be strange to see God as the authority that upholds this constitutional authority that Congress, the Supreme Court, and the executive branch all fail to recognize.

A worry presented in the comment by Alan that led me to write this post is that the standard view I'm defending allows for a "boundless field of power, no longer subject to definition" for the legislative and executive branches. The reason is that not recognizing the constitutional limits on Congress and the executive allows for the huge expansion we've seen and far more. This is bad. I admit that it's bad. I'm enough of a federalist to disagree with the amount of authority assumed by the federal government in the status quo.

However, we are presented with a choice. We can allow for that and have the rule of law as I've been expounding, or we can have people acting on their own without regard for the rule of law while basing it on the actual recorded words of law. I contend that the latter sitution holds much more potential for terrible consequences, even if the status quo is not ideal. 

Alan closes his comment with the following summary:


Ron Paul is the most principled and consistent opponent of abortion in DC today! He is principled rather than pragmatic; ends do not justify means.


He does follow one principle consistently and absolutely. However, that one principle is not a moral absolute. His principle is that you follow the Constitution as written no matter what. But what if doing so undermines the very reason we have a constitution to begin with? What if it undermines the moral reason for following the Constitution? I've been arguing that following Dr. Paul's view does undermine the very reason for having such a document and following it, because it undermines a broader notion of the rule of law, in fact the only notion of a rule of law that could have any effect.

I contend that this isn't mere pragmatism in the sense of going along with something because it serves my own petty purposes (which is what most people think when they hear the word 'pragmatism' in political contexts). It is rather a principled conservatism that relies on a more fundamental moral premise than the one Paul relies on. Taking one moral view to be more fundamental than another one is not pragmatism. Insisting that the less fundamental moral view is not absolute iis not pragmatism. It is not consequentialism. It simply amounts to having a hierarchy of moral principles, and it consistently follows the more fundamental one when there appears to be a conflict between the more fundamental one and the derivative one. The derivative one doesn't apply unless it really does serve the more fundamental one.

In the terms of the previous posts I linked to above allow for, some principles will have a threshold for what consequences are so severe that the principle no longer applies. If the consequences of following a view like Paul's are so significant that other factors trump the concerns behind the one principle he relies on, then that principle no longer applies. I have tried to show that the principles he relies on do in fact get undermined, and that is a bad enough consequence that the threshold for the principle of following the Constitution without regard for judicial review is overcome. We are above that threshold, and judicial review must remain significant. Even when we disagree with what a court says, we must seek to appoint judges and justices who will overturn that precedent, not just act against what they say. That is a conservatism that relies on a more fundamental principle than Paul's, and I think the standard view is thus the more conservative one on a more important measure of conservatism.


The single most annoying thing about most (not all) pro-life libertarians is their tendency to ignore the Fourteenth Amendment:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [...] The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

I have a hard time seeing how a pro-life libertarian (that is, a libertarian who sees the fetus as a person) can not interpret that as allowing Congress to outlaw abortion entirely.

The only way I can see is to construe "person" in the amendment as meaning only a "citizen." But that's not how the courts have interpreted it. And even if it were the best interpretation, Congress could fix the problem itself; it holds the sole authority to determine the nation's naturalization policy.

(By the way, my little rant here also applies to right-wingers who think the Constitution does not protect individual freedom of speech or religion from the state governments. Under the "privileges and immunities" clause, it does now.)


Ruben: Yes, I think it's pretty clear that it would be a revolution.

Jonathan: There really was a huge debate in the Supreme Court over those issues about a half-century ago. I was looking through the summaries of Supreme Court justices' judicial philosophies, and that seems to be one of the major divisions (along with substantive due process and unenumerated individual rights on the federal level). Justice Black and Justice Harlan in particular were adversaries on that issue. I think Justice Black has won out in most people's minds, but I'd be curious to see Justice Harlan's arguments for the view that you're rejecting, because I'm sure that's what Paul would say, and I have a hard time seeing how that view is supposed to go.

[ed. note: I discovered this comment in my junk comments folder at 11:45 pm on July 5. A number of comments follow this from people who did not see this comment first.]

I'd like to rebut your analysis of Ron Paul as purveyor of lawlessness. It appears that you have not read enough of Dr. Paul's speeches and writings to understand his approach either to the Constitution or the federal judiciary; your sophisticated "deontology" is both inapplicable and irrelevant.

For a little background, read Dr. Paul's own words regarding the federal judiciary:

You state: "According to the Paul view, however, if I understand him correctly, it doesn't matter what the Supreme Court happens to decide. What matters is what it should have decided, and that is binding, even if no authority recognizes it."

At all points, you do not understand him correctly. Dr. Paul understands that the Supreme Court has the power to apply the Constitution, and he does not advocate following what the Court "should have decided;" he does not say these should-have-been opinions are binding, nor would he say we should follow such illusory notions "even if no authority recognizes it."

As you claim to be, and as I am, Dr. Paul is indeed concerned about an activist federal judiciary. He rightly understands that the federal courts have increasingly bent the words and phrases of the Constitution to serve ideological social policy objectives, in effect legislating from the bench, whereas the federal courts were intended to merely prevent the government from overstepping its Constitutional limitations, as well as adjudicating disputes between states. However, his stated solution to the present constitutional crisis is certainly not to disregard the courts; rather, he advocates the following reforms: (1) the appointment of non-politicized judges who uphold the Constitution according to its text; and (2) the redefinition of federal court jurisdiction. This second notion is relatively unknown by most citizens, but Article III of the Constitution clearly gives to Congress the power to define and restrict the limits of federal court jurisdiction. While the Supreme Court is supreme over lower courts, it is not (contrary to what some would like to believe) supreme over the other two branches of the federal government. Your "rule of law" concern is best remedied not in a judicial tyranny but in a collaborative effort to restore the Constitutional framework of our federal republic. The President should appoint and the Senate should confirm judges who will adhere to the text of the Constitution; the President should veto any bill and dissolve any executive agency that does not adhere to the text of the Constitution; and, Congress should vote down or abolish any bill or law that does not adhere to the text of the Constitution. Finally, Congress should exercise its constitutional authority to restrict the jurisdiction of the federal courts to prevent judicial activism in social policy arenas, which belong only to state and local governments.

The "Ron Paul view" is the only legitimate and practical road towards a Constitutional rule of law. All three branches of the federal government have the constitutional authority and obligation to use their various and separated powers to ensure that the other two branches do not overstep their constitutional bounds; the defense of the Constitution is not merely the duty of the federal courts under their power of review, but it is also the duty of Congress and the President. Ron Paul seems to be the only person who understands this, he is honest, intelligent, and credible, and he therefore has my vote and support.

I must respectfully disagree with the entire premise of your post. While you may think it's a 'good thing' (tm) to permit an unfettered expansion of federal powers. The constitution was created with the intent to limit power at a national level. Conceptually there are ways to amend and change the Constitution, (the amendment permitting income tax for one) And rather than passing laws with gusto and hoping some should stick, certain things should have been passed as an amendment. Like using the interstate commerce clause to limit the use of medical Marijuana? Amend the constitution to permit such a thing.

Too long the government has used the fig leaf of the 'interstate commerce clause' to pass a number of laws which usurp State and local power. Too long the federal government has used unfunded mandates to get around that pesky 10th Amendment. If you think, 'that's just the way to do business in today's government', then you are showing how blind you are to the problem.

And the basic problem is: The Federal government is too large. The Federal Government is performing duties it has no constitutional mandate to perform. Power has a tendency to collect more power (after all, what's the point of having power, if not to collect more power, right?). And The next group of people in power has no incentive to give that power back, after all, they now have the ability to use the same power and then expand it further!

Case in point? Look no further than the Democrat controlled congress and their feet dragging to institute any meaningful reform. How can they? They benefit from the system as much as the Republicans.

Just because we're used to people doing things wrong, doesn't mean we should continue to accept it.

I think it's pretty safe to claim that the Framers believed our American judiciary would behave just as the British judiciary did, in which case there would be little reason for them to define or discuss the matter much further in the Constitution itself.

Mark, I explicitly said that I don't think it's a good thing to permit unfettered expansion of powers. It's just that there are worse things than the status quo, and one of them would be to dismantle the status quo cold turkey. I can grant virtually everything you say without conceding any of my points.

As for amendments, there is the 14th, as Jonathan and I were discussing above. I don't think you addressed that

Timothy, I agree. But the British judiciary did engage in judicial review. So I'm not sure what your implied conclusion is supposed to be.

So, I'm not an expert, but I don't think this is Ron Paul's view (at least I hope it isn't). What I understand his claim to be is simply that all three branches should use their constitutional powers to protect the Constitution, and not only the judicial branch (this is of course in agreement with the oaths of office they all have to take). Concretely, this means that (1) if a legislator thinks an existing law is unconstitutional, he should work to repeal it, (2) if a legislator thinks a proposed law is unconstitutional, he should vote against it, and (3) if the President thinks a proposed law is unconstitutional, he should veto it (if I remember correctly, Ron Paul thinks this is the only appropriate use of veto power).

Now, these three things all seem to me like they should be uncontroversial: you shouldn't just let an unconstitutional law get passed and wait for the courts to overturn it! But I believe Ron Paul has made remarks to the effect that the executive branch should refuse to enforce/comply with unconstitutional laws. In my view, this may or may not be morally acceptable and may or may not be a good idea, depending on exactly how it is carried out, and which laws are rejected. As I see it, there are two ways this could be carried out that would at least arguably be morally permissible in some cases:

(1) Keep the Attorney General and/or White House general counsel busy challenging all these laws in court (and try to get temporary injunctions permitting you not to comply during the period that the case is in court).

(2) Proper civil disobedience (on the Thoreau-Ghandi-King model). This involves publicly announcing that you are going to violate the law, violating it, getting caught on purpose, and trying to use this as a means of changing the law, whether by swaying public opinion so that it gets changed legislatively, or by the court cases that ensue. Of course, you have to accept the consequences, whatever those may be.

Both of these courses of action are, I think, in some cases permissible for the executive branch to take. However, I would be concerned that: (1) doing this (either approach) with every law that I or Ron Paul think is unconstitutional all at once would be a terrible idea, practically speaking, (2) it's important to acknowledge failure: if the Supreme Court orders you to enforce the law, you do it. I would like to hear what Ron Paul has to say about these specifics.

The argument about rule of law is that the whole point of writing down the law is that everyone should be able to read it and it should mean what it says. This means that there is some point where the manipulation of the text becomes so egregious that a court making this ruling fails to respect the rule of law, and it may be permissible (and supportive of rule of law) to disregard the ruling. However, this is clearly only in very extreme cases.

#1 seems to be very bad. I don't endorse the Thoreau-Gandhi-King model of civil disobedience, however, so I couldn't go with #2. (My reasons can be found here).

The Supreme Court issue raises the question I already raised. If the Supreme Court has already declared it to be illegal for a state to prosecute its abortion laws, then even if the Supreme Court is wrong your "acknowledge failure" approach seems to disallow the civil disobedience option, right?

As for Paul's views, I got the impression from some of his statements in the debates that he'd go a lot further than you would want him to. I didn't realize how strict a libertarian he is until the first Republican debate. He sounded like the kind of figure a liberal partisan could could use in a political philosophy class in order to dismiss libertarianism quickly without acknowledging the more mainstream libertarianism like most of the Volokh Conspiracy authors (most of whom do not endorse the Libertarian Party and normally do not vote for third party candidates in general, by the way).

I didn't see the first debate, but didn't get that impression of him from the second. Your point about acknowledged failures applies to some but not all of these laws. What I'm really saying is that if a president believes certain laws to be unconstitutional, he should try to get rid of them either by working with Congress or by seeing that they get tested in the courts, if they haven't been already. The two options I pointed out are ways of doing those things.

On the other hand, if there are really extreme cases of the Supreme Court disregarding the written text of the Constitution or unreasonably manipulating it, then simply disregarding the court's rulings is bringing the country closer to the rule of law. However, I couldn't point to a single U.S. Supreme Court case with which I am familiar such that I think the reasoning is quite this bad.

As others have pointed out, the relevant Framers in question are those that implemented the 14th Amendment, upon which the relevant Supreme Court provisions are based. In the 1860's, Marbury v. Madison was long-established and the 14th Amendment Framers therefore both accepted and expected federal judicial review of actions by states such as attempting to restrict the liberty of "persons within the U.S." There is no doubt of this - their writings and speeches are clear.

To speak of (or even debate) the pre-Civil War Framers' intent on the very issue that the post-Civil War Framers directly and pointedly addressed is both anachronistic and ahistorical.

When Ron Paul does not stand up for women's liberty, he may be doing something, but it is neither libertarian nor particularly intellectially coherent.

Philip, the issue isn't women's liberty. It's the rights of the fetus. On a pro-life view, the fetus has a right to life. The question is whether the 14th Amendment gives equal protection status to fetuses. Paul doesn't think so, on the ground that the federal government has no authority to pass laws on such matters, but the 14th Amendment gives the federal government such authority on issues related to equal protection of the laws. No one was accusing Ron Paul of not standing up for women's liberty. The complaint is that he isn't willing to back up his moral conviction legally.

Since I just discovered the comment from Jeremy Snyder above, I'd like to respond to that now.

My moderate deontology in this issue was meant primarily to respond to Paul's view on abortion. As Jonathan has pointed out, moderate deontology is unnecessary because of the 14th Amendment. That doesn't mean it's inapplicable and irrelevant, however. The fact that there's a separate argument for my conclusion doesn't invalidate my original argument. After all, it's still true that the consequences of Congress not passing laws to limit abortion are much worse (assuming pro-life principles) than not following the Constitution as he interprets it. The latter is merely allowing Congress to continue in an unfortunate practice. The former is allowing the destruction of fetuses with a right to life when you can prevent at least some of that. I see no reason why anything you say about his views on the judiciary touches anything in that argument.

Now I'm not sure what you're calling a judicial tyranny. Since you claim Paul holds to the view of respecting the Supreme Court interpretation that I hold to, what exactly is the judicial tyranny that he doesn't accept that you think I do accept? Until I know what that is, I have no idea what your argument even is, and thus I can't very well figure out what I think about it, never mind respond to it.

I do think my general argument does apply to some of the things Paul does say, even by your admission. He thinks Congress shouldn't pass laws that aren't consistent with the Constitution as he interprets it even if the Supreme Court has decided that such laws are consistent with the Constitution. The same goes for the president signing such laws and continuing to rely on executive functions not sanctioned within the Constitution. My argument was that removing these things whole-hog would have very bad consequences, and therefore removing them cold-turkey, as he seems to want to do, would be worse than tolerating something that technically goes against what the authors of the Constitution wrote. I don't see how my argument doesn't apply to the view you present Paul as holding just because some of the things I was taking him to hold are not his views. He still does say the things you admit him to hold, and the same argument applies equally to those things.

I should note for the record that even if I agreed with him on these issues, I would have a very hard time voting for him just because of his views on foreign policy. I don't see how living in denial of some of the most significant realities of our time can be consistent with even the bare minimum level of competence in being the commander-in-chief of the most powerful military in the world. As Stan Lee says, with great power comes great responsibility, and Paul's view seems to me to be the opposite. Sometimes I think any of the Democratic candidates (except Gravel and Kucinich, who are with him on this) would be preferable to Paul on foreign policy.

I'm a Ron Paul supporter, but I have to admit, after much consideration I think you're correct on the abortion issue. I'd never considered it quite like you laid it out, and on that in particular I concur with your view and do not agree with Dr. Paul. As an atheist and understanding that human intelligence does not develop in mere days, however, I am generally pro-choice. Thus I had already parted ways with him on this issue before. He'll still receive my vote.

On the larger issues, I disagree with your interpretation of the role of the legislative branch in preserving the constitutional limitations of government.

The oath of office for congress:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

Not a fan of the last bit, but I do think the defending the Constitution part describes what Ron Paul has made effort to do there. The way I look at this, is as a software developer.

If I am employed at a company that has rules about the code that goes into creating a product, I will write new code, and rewrite existing code, in an effort to improve the product per the rules. If there's existing code in the product that doesn't follow the rules (maybe hard to follow, or unreliable), I rewrite or remove it. If I didn't I wouldn't be doing my job. I think the job of the legislature is the same in that it covers new laws and the existing body of laws, if they are in need of review.

As far as the executive, I think they are bound by the laws as they interpret them - and by the judiciary in the event that those interpretations are called into question by anyone. I don't think he intends to end anything the American people have grown reliant on "cold-turkey" as you suggest. He acknowledged in a few interviews that people are relying on many of the social welfare and entitlement system we've established, and we can't get rid of it overnight. The executive doesn't have limitless power to impose its own constitutional interpretation, probably the least of the three, but it puts Dr. Paul in a position where he may affect change. So, I think your alarm is somewhat inflated.


He has said that he would get rid of whole departments in the executive branch pretty much immediately.

As for Congress defending the Constitution, I suppose the question is which rules you're referring to. Do you mean the ones only explicitly in the Constitution, ignoring what the Supreme Court has interpreted the Constitution to say? If so, then my argument kicks in (the one several people have said isn't fair to Paul because he doesn't believe that). If not, however, then my conclusion was already true and accepted by him. Either way I'm not sure if he could be saying something on that issue contrary to what I'm saying without being subject to my criticism.

I did not realize your argument was specifically with regard to abortion. In any case, I think our point of divergence here is that you mistakenly believe -- and correct me if I am wrong -- that the Supreme Court is always constitutionally supreme over the legislature, which is not the case.

As I already stated, Congress has constitutional authority under Article III to limit and define the jurisdiction of the federal courts. The Ron Paul solution, in addition to proper judicial appointments, would have Congress strip the federal courts of their jurisdiction on the matter, thereby ensuring that the issue remains where it has always belonged, in the states (or perhaps also with Congress under the 14th amendment argument). The severe practical problem with the 14th amendment argument, however, is that as long as the Court is willing to find an illusory right to abortion, and as long as the Court has jurisdiction over the issue, Congress would have a hard time passing a law under the 14th to outlaw abortion entirely without the Court coming right around and calling it unconstitutional. Even if the Court one day is so inclined as to overturn Roe v. Wade, and even if by some miracle a pro-life Court uphold under the 14th amendment a nationwide ban on abortion, nothing would keep a future Court from creating a new right to abortion.

Like my previous post described, the rule of law under the Constitution depends entirely upon separation of powers between co-branches of government. The Court may decide matters in its control, but Congress defines that scope of control under Article III. My use of the term "judicial tyranny" describes the present imbalance in the federal branches. Particularly because the judiciary is unelected and for lifetime appointments, Congress's power to restrict and define federal court jurisdiction under Article III is essential, or else the Supreme Court may, as it now does, roam unchecked as a superlegislature, deciding whatever de facto laws it will under a so-called "living" Constitution. We have checks and balances for a reason. I think you confuse this jurisdiction stripping mechanism with Congress attempting to pass laws which the Supreme Court will inevitably hold unconstitutional, which would be a waste of time, let alone "the principle defeating itself" or whatever.

See Dr. Paul's own words on the matter.

Of course I don't believe that the Supreme Court is always constitutionally supreme over the legislature. The Senate is part of the legislature, and they play a role in the confirmation process of justices on the Supreme Court. I'm not necessarily opposed to the idea that there are several kinds of legislation Congress can pass to limit the Supreme Court that do not violate the Constitution. I'm unstudied on that issue, but I'm not necessarily opposed to it at first glance.

I should say that judicial review has limits even with the status quo. Judicial review can only be done with particular cases and not just because the Supreme Court thinks a law is unconstitutional. Also, the plaintiff has to have proper standing to sue, so it can't be just a result of any old person seeking to get the Court to overturn a piece of legislation.

One problem that your proposal raises is that it does exchanged what you might call tyranny of the judiciary with what someone else might call tyranny of the legislature. It's true that there are elections every so often in Congress, although incumbents do have a huge advantage, and those elections are often decided in terms of national parties and local issues rather than constitutional theory and overstepping bounds, the way most who care about the Supreme Court think about that institution. But the election cycle does make the tyranny of the legislature sound less bad than the tyranny of the judiciary. Even so, it's worth acknowledging that this increases Congressional power so that it has virtually no limit, even if there's accountability for those who use that nearly limitless power for purposes that become unpopular. While that's not as bad as how you view the status quo, it doesn't seem to me to be enough better to make a huge change over.

While I can see how you might accuse me of wanting to exchange a judicial tyranny for a legislative tyranny, I submit that the proposal I have articulated is non-tyrannical and is indeed enough better than the present imbalance of power to justify a change. You stated the first point, which is that the legislature is accountable directly to the people through election.

Second, contrary to your assertion, the legislature is not limitless in power. The Supreme Court can still decide matters left within its jurisdiction, and I do not foresee Congress stripping the courts of much of their jurisdictional power; I only foresee this happening with regard to deeply divisive issues like abortion and marriage, which are social policy determinations best decided by publicly accountable legislatures anyway, beginning at the state level so as to best serve the moral demands of local populations.

Third, the President is empowered with the veto if Congress should attempt to overstep its Constitutional bounds.

Fourth, the Constitution itself can be amended by a super majority. Interestingly, the reason we do not believe the amendment process to be tyrannical is that it is decided by most of the people. Similarly, the legislature is far more representative of most of the people than the nine, unelected, lifetime Supreme Court justices. Tyranny is when one (or a few) imposes its will against the will of the many. This is why I say that shifting power away from the courts and towards legislatures cannot be called tyrannical.

In short, there are a number of checks and balances to ensure that each branch acts as a watchdog over the other to prevent unconstitutional abuses and to protect the federal democratic republican system and state sovereignty. Far too long has Congress ignored its authority to reign in the Courts when they go awry.

I'm not accusing you of wanting to exchange a judicial tyranny for a legislative tyranny. I'm saying that your view allows for a partial legislative tyranny (although it doesn't guarantee it). Some of the limits you mention would prevent it from being a comprehensive tyranny.

I think the main difference is that I think changing the status quo causes more harm, whereas you think it's harmful enough that changing it would be better.

I do believe the amendment process can be tyrannical. Rule by majority often takes advantage of the minority. That's why democracy in general is only a compromise because the ideal government of a benign dictator is hopelessly unachievable.

Majoritarianism is not tyranny. Granted, the legitimate rights of minorities need protection, which is why we have a written Constitution, federalism, three branches of federal government, two houses of Congress, many checks and balances, etc. However, you are wrong that democracy is a compromise from the ideal government of benign dictator. The truth is that the "ideal government" would be blissful anarchy. To quote from Madison in Federalist No. 10, "If men were angels, no government would be necessary." I hardly see how popular self-governance, particularly if checks against abuses are in place, is somehow less ideal than one or a few imposing their will against the majority of citizens, even if the tyrant has supposed benign motives.

Tyranny is implicitly minoritarian.

A series I'm going to be beginning tomorrow on Augustine's political philosophy is going to get into these issues more fully, but I'm not sure I agree that anarchy is even remotely ideal. The problem with Madison's statement from a Christian point of view is that even angels need a government over them to hold them accountable when they rebel. Only God needs no higher government because only God is perfect. Even perfected humanity in the resurrection will be under a benign monarch. I can't see how a Christian can prefer anarchy to divine rule.

I am studying for the VA bar exam 2 weeks away and don't have time for an extended response, and this will be my last contribution for that long.

However, let me just say that you read Madison's use of the word "angels" too broadly. He does not mean fallen and depraved man or literal divine beings open to demonic rebellion but rather human beings akin the Second Adam, Jesus Christ.

The reason anarchy is the illusory Christian ideal is that where man is sinlessly perfect, no threat of force (government) is necessary. Certainly God is always supreme as Creator in the marriage between God and even perfected man, but His "dictations" are not government at all but rather an expression of mutual and spontaneous desire.

God does not wield a sword of wrath over the righteous. Madison's "angels" are not God's potentially rebellious children; they are God's constantly perfect marriage partner.

But such as things are, man is depraved and bound for mischief; he is therefore not trustworthy of much political power, which is why common sense requires strict constitutional limitations on and localization/diffusion of government power. Hence the system under which our country was founded.

Your "ideal" would look like Christ coming on earth to rule politically over depraved man; it is quite interesting to me that he defied the expectations of many and did not do this (though perhaps he later may for a period of 1000 years).

When finally man is perfected, and the devil, his angels, and unrepentant man is cast into the lake of fire, God will no longer reign as benevolent dictator over man but as a family member in a perfect family of mutual will and desire, totally devoid of conflict or abuse. This is why the Christian "ideal" is anarchy, the complete lack of forcefully imposed will.

I very much doubt Madison believed in angels as presented in the Bible. I was just indicating that going beyond humanity isn't sufficient. Even unfallen angels wouldn't be enough. You'd need unfallable angels. Christ is a better example, since he has the divine nature in full.

I'm not a premillennialist, so I don't think there's a future millennial reign on earth other than just the new heavens and the new earth, which will involve Christ reigning over the elect.

I have a hard time seeing anything like a loss of hierarchical rule. Just because there's complete agreement in the Trinity, that doesn't mean the Father isn't in authority over the Son. The same is true of Christ and the church. He is the head of the church, and that won't change just because the church is perfected.

Just one more post, then I'm gone. The point about the millennial reign or lack thereof was a mere aside, and I do not have settled views on that matter.

The issue here is not hierarchy but government.

Hierarchy is just a descriptor of priority in a relationship; because God is sovereign creator, he naturally holds hierarchic priority over all creation and created beings.

Government, on the other hand, is the imposition of will by force. When the righteous come to mutually, perfectly, constantly, and spontaneously desire the will of God, the sword of wrath (force/threat of force) evaporates. We are left in perfect familial relationship, even hierarchical relationship, but NOT government.

I think of God's sovereign control over all events as a kind of government. I don't consider it imposition of will by force for God to determine me to do something given that I also do it of my own volition (as under his sovereignty). So I see government as compatible with the perfection of the resurrection in the same way that I see God's governing of my actions as compatible with my freedom. I understand that this assumes a number of metaphysical views, but I do think they're correct views. I'd even go as far as saying that, while Augustine is correct in saying that we'll be more free in the resurrected state, it's also true that God's rule will be more complete because everything will conform to it in every sense rather than just in some (as now, where God's providential will is fully achieved, but his moral will is not).

So we're understanding these terms in vastly different ways.

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