Justice Breyer Really Hates the Rule of Law

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I've mentioned it many times before, but Justice Breyer -- defender of the indefensible -- has always had it in for the written words of the Constitution. He tries to couch his distaste for our highest written law in reasonable-sounding legal theories, but in the end they are simply a disguise for his true legal theory: that judges get to make up whatever they want as they go along.

A good example is his justification from his last book, Active Liberty, for restraint on the use of money in political campaigns: because, he said, the goal of the First Amendment is to enhance democracy, we can therefore restrict speech (such as by telling people they can only spend a certain amount of money on speech) in order to enhance democracy (on the assertion that if there's too much speech by some people, it drowns out the speech of others).

So to Breyer, the law literally doesn't mean what it says: the law is used to give us guidelines on values, and then we can ignore what the law actually says in order to further those same values. This is, of course, tyranny: it puts all of our rights not in our own hands, but in the hands of judges who have complete authority to determine not whether we do have certain rights, but whether we should.

This was made clear again yesterday, when, on Fox News Sunday, while plugging his new book, Breyer informed viewers that we could ignore the text of the Second Amendment because the person who wrote it didn't really mean it*: Madison was only trying to get the Constitution ratified, Breyer said. The "just kidding" method of constitutional interpretation apparently means that when the Constitution clearly says "the right of the people shall not be infringed," it really means "unless we're don't really believe in that right, in which case, go ahead and ignore it."

And this, of course, is Breyer's actual view of all rights: simply trust the government and the democratic process. This is fine if, like Breyer, you believe that government is essentially good and can be trusted. But Madison, and Jefferson, and most other Founders realized that is folly, and so did two things: created a federal government that was limited in scope to push most decisions closer to the citizens being affected by them, and restricted the government from enacting any laws violating certain essential liberties. And the right to keep and bear arms -- which Breyer says can be fully and completely denied to law-abiding citizens -- was one of those.

Breyer may love the law, but he despises the RULE of law. He wants with all his might to destroy it. He is working his damndest to give us the rule of men. In Breyer's world, it doesn't matter if the Constitution does not allow the government to force you to buy insurance, to take away your guns, to do literally anything at all, as long as it promotes Breyer's view of American values. In a just world, your rights would matter more than anything else in a court of law: no government could take what is rightfully yours. Breyer's world is unjust.

*Never mind that we know the authors of the 14th Amendment really did mean to include the individual right to keep and bear arms as one of the privileges and iimmunities of U.S. citizenship, and yet Breyer still held that that right wasn't protected by the 14th Amendment ... most likely while writing this book.

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<pudge/*> (pronounced "PudgeGlob") is thousands of posts over many years by Pudge.

"It is the common fate of the indolent to see their rights become a prey to the active. The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt."

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This page contains a single entry by pudge published on December 13, 2010 10:40 AM.

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