I regard the Anglo-American Justice system with horror and grim humour.
Earlier, we looked at power and the press, this time let’s look at the judiciary.
The reactionary is always a Machiavellian. She devotes her attention to reality, not form. So, for instance, I call USG “USG” because that’s what the people who work there call it. I feel that if you’re interested in learning about USG, you’ll learn a lot more here and here than here. (Memo to the Washington Post Company: while it’s fine to begin a domain name with “who,” follow it with a dash, or a word that doesn’t start with “r.”)
To the reactionary, USG is an unlimited government – a true sovereign under the classical law of nations. Everything that happens in the United States (if not the entire world) is either caused by USG, or allowed to happen by USG. If there is some domain of human affairs in which USG does not intervene, this is too is USG’s choice. There is certainly no domain from which any force, other than USG’s own will, precludes it.
Therefore, USG deserves full credit for anything good that happens in the United States, and bears complete responsibility for anything bad. Who invented the Internet? Whoever it was, USG caused it to be done. Why did USG’s financial system collapse? USG mismanaged it.
It is a truism of reactionary political science that every government which is truly sovereign contains some individual or committee which holds the imperium maius – absolute power, subject to no contradiction. In USG, this committee is the Supreme Court.
While in the 20th century, the Court’s imperium is maius without a doubt – not even FDR could quite break it – it is also extremely weak. This is not a contradiction in terms. Custom limits the Court’s imperium to the slowest, most reactive process in slow, reactive USG: the law. Who has the final word in this process controls USG, but only in the end. The Court’s sceptre cannot be used for proactive, executive action.
Thus, while the Court holds imperium maius, just as Augustus did, it cannot actually use this power as Augustus used it – eg, it cannot declare a state of emergency and rule by decree. At least, any attempt at classical imperial government by the Court would violate the true and ancient customs of the Beltway. I still think it would probably work, but there is a significant chance of just breaking the instrument.
Moreover, the Court is weakened as an institution by its nomination process. While the political arm of USG can be broadly described as vestigial – most of the real power is in the civil service, the press and the universities, all of which are strongly shielded from “politics” – the White House retains some genuine responsibilities. One is nominating judges.
Given the pendulum of party politics, in which each side must sully its reputation in turn by serving as figurehead of the good ship USG, and the biological facts of life expectancy (note that Judge Sotomayor’s diabetes reduces her expected term by 15 years), this creates a Court on which the most important fact is not the identity of the members, but their partisan ratio – as in any legislative body. Any truly studly Court would choose its own replacements, like the Israeli Supreme Court.
It so happens that Judge Sotomayor is replacing Justice Souter, a typical late 20th-century Justice – an Outer Party nonentity who betrayed those that brought him to power, and became a consistent Inner Party vote. Thus, the replacement does not change the partisan ratio, and again is interesting only as an illustration.
(This pattern of systematic treason (there’s really no other word for it) is a legacy of the era in which Inner Party domination was so total that the Outer Party had no scholarly institutions at all. With new institutions such as the Federalist Society, it probably won’t happen again. The Outer Party has no shortage of sound, talented ideologues. This, in itself, is a problem for the Modern Structure – though not yet a major one.)
Judge Watson and Attorney General Chin are not formalists. Chin says that he will not just “read the text” but pay attention to the “flashing lights” saying “Muslim ban.”
legal formalism is the simplest thing in the world: Judges ought to be professionally, ethically and legally bound to apply the law to the best of their ability, not apply whatever moral standards they have, or make decisions because it gives them 15 minutes of fame or because they are part of a poltical gang and are thus helping their fellow gang-members out.
A political formalist is someone who believes that political form (who we think has power) should match political reality (who in fact has power). The essence of Moldbug’s formalism, is that with a clear, articulate – indeed certain – set of rules that all parties agreed to which defines people, property and power, then you have certainty of decision. And certainty of decision, the removal of politics, will eliminate conflict and thus violence.
The AP article also highlights that crucial reactionary theme of Imperium in Imperio.
“What a ruling in 4th Circuit in favor of the administration would do is create a split in authority between federal courts in different parts of the country,” he said. “Cases with splits in authority are cases the U.S. Supreme Court exists to resolve.”
Split in authority, who,whom?
It is very clear that the President has the legal authority and historical precedent for this order.
In a state where authority is not vested in one man who acts as ruler, judge and general, who can override any and all other persons in the sovcorp, then you get politics.
And then, you get this.
So, the lives of the American people will now be in the hands of nine “unelected lawyers.”
You Boy! Least you git da sign on da dotted line when U become a serf in shit for some big shot corporation, but here! Motherfucker! You git told wat to do boy by dem folks in da black robes. It be like a case of yessa sir! No sir! Three bags and full sir!