Saturday, May 14, 2011

This is why we call them "the Ruling Class"

In its infamous Kelo ruling, a 5-4 majority of U.S. Supreme Court justices declared that you, Joe Citizen, no longer possess the right (guaranteed in the Constitution) to secure home ownership -- not if local governments simply want to take it from you and give it away to another private party (usually some politically connected corporation or other favored cronies). They thus expunged, de facto, the constitutionally mandated rationale of "public use" from the "takings" clause of the Fifth Amendment: Now, seizure of property could be for somebody else's private use -- as long as local politicians rationalized that such naked theft served some sort of vaguely described "public purpose."

The latest spectacle in judicial evisceration of the U.S. Constitution was provided this week by the Indiana Supreme Court. In a 3-2 ruling, the court decided that if a police officer enters your home illegally, you have no right under the Fourth Amendment to resist:
Overturning a common law dating back to the English Magna Carta of 1215, the Indiana Supreme Court ruled Thursday that Hoosiers have no right to resist unlawful police entry into their homes.

In a 3-2 decision, Justice Steven David writing for the court said if a police officer wants to enter a home for any reason or no reason at all, a homeowner cannot do anything to block the officer's entry.

"We believe ... a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence," David said. "We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest."

David said a person arrested following an unlawful entry by police still can be released on bail and has plenty of opportunities to protest the illegal entry through the court system. . . .

This is the second major Indiana Supreme Court ruling this week involving police entry into a home.

On Tuesday, the court said police serving a warrant may enter a home without knocking if officers decide circumstances justify it. Prior to that ruling, police serving a warrant would have to obtain a judge's permission to enter without knocking.
Note the excuse offered by the court: Resisting illegal entry is "against public policy" and "modern Fourth Amendment jurisprudence." What is "public policy"? Why, it's whatever politicians now say it is. And what is "modern Fourth Amendment jurisprudence"? Why, it's the obliteration of what the Fourth Amendment meant when the Framers wrote it.

Make no mistake: These rulings are part and parcel of the century-long effort by Progressives to annihilate the U.S. Constitution. Since the days of Woodrow Wilson, they have seen the Constitution as an impediment to their power to "do good." Systematically dismantling the Constitution therefore has been a central objective in their social-engineering efforts.

The Framers sought to root the Constitution in "natural law"; as one scholar describes it, "the idea that there are rational objective limits to the power of legislative rulers. The foundations of law are accessible through human reason and it is from these laws of nature that human created laws gain whatever force they have."

By contrast, the "legal positivism" movement, which has its roots in the utilitarian philosophy of Jeremy Bentham, holds as its basic premise "that there is no inherent or necessary connection between the validity of a law on the one hand, and ethics or morality on the other. Therefore, in legal positivism, the law is seen as being conceptually separate (though of course not separated in practice) from moral and ethical values, and it simply sees the law as being posited by lawmakers, who are humans." Another authoritative source declares that "positivism is the view that law is a social construction." While positivists disagree about many things, that premise -- that law is a matter of social convention -- opens the door for the kind of relativism we see underlying the court decisions I mentioned.

The stampede from "natural law" underpinnings of the Constitution to complete relativism accelerated with the "legal realism" movement, popular in the early Twentieth Century and identified with such noted figures as Justice Oliver Wendell Holmes, Roscoe Pound, Justice Benjamin Cardozo, and Justice Louis Brandeis. The Supreme Court justices, in particular, issued rulings from this vantage point that serve as important precedents to this day. As one source notes, "legal realists advance two general claims: 1) Law is indeterminate and judges, accordingly, must and do often draw on extralegal considerations to resolve the disputes before them. 2) The best answer to the question 'What is (the) law?' is 'Whatever judges or other relevant officials do'."

It's not my purpose (nor within my qualifications) to comment further on jurisprudence. My only point here, briefly, is to take passing note of the kind of theories that could have led to anti-constitutional decisions such as those in Indiana and in Kelo. And in doing that, I hope one thing becomes clear:

Such theories are nothing more than formalistic rationalizations to allow the Ruling Class to exercise arbitrary, unlimited power.

The project of the Framers was to limit the power wielded by governmental officials: to constrain it so that it conformed to "natural law," by which individuals existed as ends, with certain "inalienable rights" to life, liberty, property, and the pursuit of personal happiness. This entire worldview is anathema to our self-appointed elites, which presume to dictate to the rest of us (i.e, their inferiors) how we ought to live our lives, and toward what ends. That is why Prof. Angelo Codevilla correctly labeled these elites "the Ruling Class" in his indispensable essay.

We can see, naked and exposed, the outlook and objectives of our Ruling Class in these court "rulings." While progressives upend, even destroy, our lives with their grand technocratic schemes, we are commanded to sit still, take it, and not fight back. So, what remedy then remains for the hapless citizen who is manhandled by some governmental invader who bursts into his home, without a warrant, in the dead of night? The Indiana court has given the rogue officer the legal right to do all this, then mock his victim by saying: "So, go ahead and sue me!"

I worry that these corruptions of our constitutional order are pushing the citizenry to the point of open defiance and rebellion. If our rights are no longer guaranteed and upheld by the courts, if we no longer have legal recourse address to these outrages, then what options still remain open to us?

The Ruling Class should be forewarned: Americans are not the kind of people who sit still, take it, and don't fight back.