Kennedy v. Louisiana and Limiting the Supreme Court's Power

The progressive movement that began in the early twentieth century has followed a gradualist approach to the erosion of liberty. Its left wing makes extreme demands, and then its center argues for moderation, which means less erosion than the left demands. The process repeats so that the extreme demands are achieved through several small steps. As well, the progressives, starting with John Dewey, have been deceitful. They argue that they they idealize democracy and public deliberation, but then they advocate increasing centralization and bureaucratization of power, for instance the accretion of the Supreme Court's power over state law, that stifles democracy. These steps have the effect of restricting the majority of people's freedom, as in the economic realm, or of increasing the power of the progressive elite to impose the cultural values of the wealthy and Ivy League-educated onto the general public.

In Kennedy v. Louisiana, the Court held that a Louisiana law that provided the death penalty for a child rapist is cruel and unusual punishment and so unconstitutional. The New York Sun summarizes the Court's reasoning about cruel and unusual punishment as follows:

'Cruel and unusual punishment,' which is prohibited by the Eighth Amendment, derives its meaning from 'the evolving standards of decency that mark the progress of a maturing society.' These evolved standards, according to Justice Kennedy, require a distinction, 'between intentional first-degree murder on the one hand and non homicide crimes against individual persons, even including child rape, on the other.' Citing precedents, Justice Kennedy claims this distinction shows that the "severity and irrevocability" of child rape cannot be compared to murder 'in terms of moral depravity and of the injury to the person and to the public.'

Kennedy v. Louisiana is a chord in the progressive symphony. In the nineteenth century the Court did not have the power to apply the Bill of Rights to the states. In 1925, near the end of the Progressive era, in the case of Gitlow v. New York the Court ruled that the Fourteenth Amendment extended its power to review state law.

In 1965, in Griswold v. Connecticut, the Supreme Court held that Estelle Griswold, director of planned parenthood of Connecticut and Dr. Buxton of the Yale Medical School could not be fined for giving advice to patients encouraging them to use contraceptives even though the legislature of Connecticut had passed such a law. In the decision Justice Douglas wrote:

"specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen."

Thus, the Court went from not reviewing constitutionality of state law in the nineteenth century to reviewing it in the pre-World War II period and then to creating new rules not in the Constitution ("penumbras") in the post-World War II period that the Court then dictatorially imposed on the states. Paradoxically, Herbert Croly and other progressives of the early twentieth century argued that the Court had too much power in the nineteenth century and that democracy ought to supplant Court authority. Instead, progressivism has seen a vast extension of Court power and restriction of democracy. Despite their deceptive claim to support democracy, progressives have hailed this process. Progressives' values have emphasized extension of the First Amendment to revolutionaries (the speech involved in Gitlow involved Gitlow's advocating overthrow of the government, which New York had illegalized) and birth control. Progressives have repeatedly emphasized results like these over democracy.

In Kennedy v. Louisiana the Court claims the authority to reinterpret the Constitution in light of the evolving standards of decency that mark the progress of a maturing society. Yet, there is nothing in the Constitution that gives the Supreme Court that authority any more than the Constitution suggests that its penumbras have Constitutional force. The Supreme Court has simply re-interpreted the Constitution in a way that arrogates power to itself and that is profoundly anti-democratic. The fact that the "progressive" movement has never complained about this pattern evidences its elitism.

The Supreme Court views itself as an arbiter of decency, yet the Supreme Court has no qualification to function as such an arbiter. In Roe v. Wade the Supreme Court held that states could not illegalize abortion. Yet, according to ABC News, 57 percent of Americans oppose abortion solely to end an unwanted pregnancy. In other words, the majority of Americans do not think that the Supreme Court's judgment is decent. Nor should the Supreme Court imagine that it somehow reflects the moral standards of the majority of Americans. Some justices, schooled in elite universities and indoctrinated in politically correct ideology, have values that deviate sharply from the majority of Americans. If so, then the Court has become an arbitrary possessor of power, a factional dictatorial force that represents the "Blue" half of the country, not an interpreter of the Constitution. Perhaps it is time to restrict this anti-democratic, factional force.

An amendment to the Constitution could limit the Court's power to apply the Constitution to the states. If progressives believe in democracy, then they should favor this proposal, because enhancement of the power of the states would significantly enhance democracy. Such an amendment might state that the Constitution, except where it states to the contrary specifically, does not apply to the states. Then, the states will be free to decide what "penumbras" they wish to adopt, and which Supreme Court penumbras they find morally reprehensible.

Freedom of Information Act Request for Barack Obama's Birth Certificate

I have written and will mail on Monday two Freedom of Information Act requests to the State of Hawaii for copies of Barack Obama's birth certificate as per Larwyn's suggestion. Pamela Geller of Atlas Shrugs argues that there may be no problem with Mr. Obama's birth certificate, but the State of Hawaii and Mr. Obama have an ethical obligation to come clean on this matter.

Mark Bennett, Attorney General
Department of the Attorney General
State of Hawaii
425 Queen Street
Honolulu, Hawaii 96813

Dear Mr. Bennett:

This is a freedom of information act request for the birth certificate of Barack Obama, born August 4, 1961. Because Mr. Obama is a public figure and because of the importance of this information to the public welfare the ordinary rules of confidentiality do not apply. I will be happy to pay your normal processing fee.

Sincerely,

Mitchell Langbert

Janice Okubo
Department of Health
State of Hawaii
1250 Punchbowl Street Room 326
Honolulu, Hawaii, 96813

Dear Ms. Okubo:

This is a freedom of information act request for the birth certificate of Barack Obama, born August 4, 1961. Because Mr. Obama is a public figure and because of the importance of this information to the public welfare the ordinary rules of confidentiality do not apply. I will be happy to pay your normal processing fee.

Sincerely,

Mitchell Langbert

Pamela Geller and the Obama Birth Certificate

Pamela Geller of Atlas Shrugged (hat tip Larwyn) cites Israel Insider about the missing Obama birth certificate. There is uncertainty about the authenticity of the copy of Barack Obama's birth certificate produced on Obama's fight the Smears site. Geller's correspondent Joe has analyzed the birth certificate and found a potential seal, though Israel Insider questions it. Geller concludes that the seal is really there and suggests:

"I believe the Obama campaign would deliberately keep such a question alive to diminish the veracity of the real scandals Obama is guilty of (Rezko, Auchi, Wright, Nation of Islam, Malley, Powers, Odinga, corruption, lies etc."

Perhaps Mr. Obama should make the birth certificate available and Republicans should emphasize a range of criticisms. There are many to choose from.

Two Ways To Organize a Society

Two ways to organize society are equity and achievement. Under the equity principle there can be economic inequality only if it is associated with equal opportunity and if the inequality optimally benefits the disadvantaged. Under an achievement theory, society is best off if it is organized so that the quantity and quality of achievement is optimized. Thus, a nation like Athens would certainly not qualify under the equity principle because there was slavery, but it would qualify under the achievement principle as one of the great societies in history.

Principles like these are not easily tested empirically. Only through history can we judge whether societies that operate under one optimizing rule or the other have worked best. One problem is execution. Few societies (ancient Sparta is one) have been able to establish equal opportunity. If they could, the result would likely be unsatisfactory. The poorest and the wealthiest people in society would possibly be much worse off precisely because of equality of opportunity. This is because achievement is the source of progress and achievement is possible only if there is inequality.

In his book Creativity: Beyond the Myth of Genius* Robert W. Weisberg of Temple University argues against the idea that creativity results from genius or luck. Rather, creativity results from focused application of ordinary thinking based on well-developed expertise. Creative works are not "set breaking" and do not constitute "revolutions", but rather build on prior inventions and pre-existing knowledge bases. Weisberg writes that to encourage creativity in the young "we should emphasize development of deep expertise in a particular domain"**. As well, motivation to create plays a role. To motivate people to be creative "exposure at an early age to subject matter in the arts and sciences, structured in such a way as to appeal to the young, can result in a child's naturally developing an interest in some area. At a later age exposure to mentors can play multiple roles." Even with respect to prodigies: "these skills will not express themselves without strong support from the environment, especially the family, as we saw...in the case of Mozart and Picasso. Thus, even the most talented must have the right environment if their talent is to bear fruit."

If Weisberg is right, then achievement depends in part on unique opportunities. It is impossible to provide the same nurturing to all, nor would it be desirable. To create a society where all have the opportunity to be Mozart, it would be necessary to exclude anyone's being a Picasso. To create a society where Mozart would not be entitled to the rewards of Mozart's work would likely de-motivate him. But even the worst-off member of society benefits to a large degree from Mozart's creative genius (or Puff Daddy's).

It is true that the achievement theory leads to distributional inequity. Some achieve more than others, and this in part is due to skills developed in the family at an early age. But does that mean that the achievement theory is inequitable? It may be that the worst off is best off in a society that stimulates achievement through the recognition of basic rights.

In addition, there is the question of pragmatic execution. What have been the outcomes of societies organized along the lines of equity and what have been the outcomes of societies organized along the lines of achievement? When the equity principle was first brought to public awareness in the eighteenth century there was considerable injustice. (It also is true that few societies had been organized along any lines but tribal at that time.) Throughout the nineteenth century, societies such as England and America that were organized on the achievement principle were attacked as inequitable. Yet, in the twentieth century, societies that were organized on the equity principle, such as the Soviet Union, Nazi German and Red China, committed far worse atrocities than any in the eighteenth and nineteenth centuries. Today, the United States and England have increasingly been organized along equity principles, but the two societies are less, not more, equitable than they were under the achievement principle.

Thus, there is a gulf between the theory of equity and the results of the equitable philosophy because human nature and human power needs do not coincide with the cool rationality of a philosopher's anticipating outcomes under a "veil of ignorance". Thus, the resolution of the dispute between equity and achievement needs to be reviewed empirically and experimentally, not through philosophical speculation.

Achievement may be defined as a creative act that merits social recognition. The social recognition evolves because the creative act is helpful to at least a portion of society. The best way to motivate socially useful action is through fair reward. Because there is no true way to determine the fairness of rewards, and because human reason is inevitably self-serving and biased, the fairest way is to let the marketplace determine them.


*Robert W. Weisberg, Creativity: Beyond the Myth of Genius. New York: W.H. Freeman and Company, 1993.

**As well, this contradicts the idea that basic skills are unimportant to creativity, a fundamental precept of progressive education.