The Rule of Law and a Supreme Court Nominee

Disclaimer: I am not a lawyer. I am writing only from my reasoning ability and personal observations which have given me my opinions, my understanding of law. I am not a scofflaw. I respect the law.

What is the “rule of law”? Many speak of it with iron and steel in their voices, like it clangs in the big brass bell between their cheeks, THE RULE OF LAW!!!!!!!!! Oh, MY! What deep and booming clangs ring out to deafen your ears! THE—RULE—OF—LAW.

The “Rule of Law” is really the “Rule of Language”, which is ultimately the rule of lawyers; they speak the language of law better than most because they have had concentrated study of it for several years so that they can charge you a nice fee for reading for you the law that they have written in their language. Language has a lexicon, the words. A grammar, for putting the naming words together with action words, words describing the nuances of that action, and words descriptive of the naming words. And many of the words are of “ancient” currency, Archaic, OE. The “Rule of Law” is actually the “Rule of Rules”, for rules are more readily amendable.

The writers and signers of the U.S. Constitution took as their source for that document’s authority from what they called “self evident truths”. Another name for “common sense”? I am doing the same in my interpretations of the meaning of the rule of law. “SELF-EVIDENT” is not a substantial footing for truth. A statement of “truth” is also its evidence of “truth”? We since have had a highly developed discipline of science from which to derive definitions.

There is no rigidity in the substance and use of language. The rule of such an unpredictable, dynamic and multicultural medium of understanding, where cultures of communities vary widely by demographic variables over the codes of comunication — ultra-complexity is the rule. The “rule of law” falls so easily from the lips of those who would deceive you into an ideology that they hold in mind but would not care to explain. They know what they mean, and they say “The rule of Law” in that peculiarly sonorous way. If they hold the keys to the meaning of the legalese that they have mastered, you are locked out of that exclusive, and nearly secret, community.

Please show more respect for the word, “law”. We are subject to the laws of nature. It requires engineering and engineers to repeal what laws of nature they can. Gravity. The lift of the airfoil against gravity. Playing one force against another. Now that’s the rule of law in action that I can comprehend; I am not an engineer.

We are subject to the laws of thermodynamics, which I have made an attempt to comprehend. It leads me to try to understand the concept of “entropy” and its consequences for civilization. Though I am not a physicist, a scientist, I am forcibly subjected to all those complexities of this universe if I want to continue to live in it, me, my family, my country-men.

Please respect the word, “law”. We should, strictly speaking, speak of the rule of “rules”. The “Golden rule”. Rules of etiquette. Rules of the road. Rules are changeable. Our laws are amendable. The death penalty is here not there, there not here.

So we come to the question of the Supreme Court nominee who is to apply the (drumroll please) “RULE OF LAW!!!!!” We want a “strict constructionist”, some kind of iron-willed, mind-of-steel, unbending conservative girder of hard-rule JUDGE. Not susceptible to “empathy”. But I see “empathy” as a crucial substance lubricating the vagaries of the language of the law that can be so misunderstood. The empathic response will be there because we are human, and laws must be made to express the humanity involved in writing, promulgating, enforcing and obeying the law.

We make laws which are really rules, legislators’ best-practices codified to govern all our interactions, leaving aside our personal verbal and non-verbal expressions and private choices, for the most part.

There is enormous room for all coniderations of the person of the judge to enter any judgments to be made, even in the highest court in the land because the language of the lawmakers is so imperfect in its maleability.

Is “law” made from the judge’s bench? Probably. Laws, as written by even the best, suffer from all sorts of lexical and semantic ambiguities.

One recent example, the “law” that was drawn up to give billions of dollars to the bailout of the Wall Street frauds is an example of poor legislation. The strictures on any use of that money was so poorly specified in the language of that law that everyone was angry. Did we enjoy the rule of that law? Never. And those who perpetrated that fraud are the villains of this society who got off scott-free.

I simply want all those people in nationally responsible government positions to just plain stop trying to foist off on the vetting procedures for Supreme Court appointees their ideological loaded language to describe the duties, functions, and skills of a Supreme Court Justice. They should know better. So many things they want to write off as criteria for judgment of what a fine Supreme Court Justice would embody are nothing but code words for their own biases for or against the person. Empathy. Temperament. Experience. And so on.


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