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The Six Axioms of Politico-Judicial Logic

These six axioms provide all you need to know to navigate the landscape of current debates about judicial decisions:

1) The heart wants what it wants.

2) The heart has a right to what it wants—as long as the harm principle [1] isn’t violated.

3) A political or social outcome that is greatly desirable is also ipso facto constitutional.

4) A political or social outcome that is greatly undesirable is also ipso facto unconstitutional.

5) A judicial decision that produces a desirable outcome is (regardless of the legal reasoning involved) proof of the wisdom of the Founders in liberating the Supreme Court from the vagaries of partisan politics so that they can think freely and without bias. The system works!

6) A judicial decision that produces an undesirable outcome is (regardless of the legal reasoning involved) proof that the system is broken, because it allows five unelected old farts to determine the course of society.

From these six axioms virtually every opinion stated on social media about Supreme Court decisions can be clearly derived. You’re welcome.

change_me

Alan Jacobs is a Distinguished Professor of the Humanities in the Honors [2] Program at Baylor University [3] in Waco, Texas, and the author most recently of The Book of Common Prayer: A Biography [4].

Follow @ayjay [5]

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#1 Comment By John On June 30, 2015 @ 10:31 am

I would say that this is true among mainstream media publications where journalists and editors write a bottom-line summary for an audience that doesn’t have a JD, and thus true among people who simply link to these articles to crow or complain.

But if you want something deeper (e.g., the history of this issue in jurisprudence, how convincing the opinion is in light of relevant precedents, etc.), you can find it online, usually for free from JDs on Twitter with time on their hands. Being a JD myself, I’d much rather read SCOTUSBlog, LGM or Volokh than the New York Times or Washington Post.

#2 Comment By Patrick On June 30, 2015 @ 11:27 am

@John, I’ve been paying attention to Volokh and other sites. It seems to me that Robert’s ACA decision was reasonable and consistant with his judicial philosophy (which is a conservative philosophy). When I read things in the popular conservative press expressing equal outrage to the ACA decision and the gay marriage decision I feel forced to peg the writer as a poltical hack. George Will actually did this. He wrote a scathing column concerning the ACA. However on Fox News Sunday he appeared to walk it back and be much kinder to Roberts than he had been.

#3 Comment By Ben On June 30, 2015 @ 11:51 am

Thomas Jefferson’s statement on property rights could be your seventh: “I am increasingly persuaded that the earth belongs exclusively to the living and that one generation has no more right to bind another to it’s laws and judgments than one independent nation has the right to command another.”

#4 Comment By ADL On June 30, 2015 @ 1:18 pm

“I am increasingly persuaded that the earth belongs exclusively to the living and that one generation has no more right to bind another to it’s laws and judgments than one independent nation has the right to command another.”

I’m not familiar with the context of this quote, but I doubt that Thomas Jefferson was claiming to be against a written constitution, which by definition implies that previous generations have the right to bind future generation’s to their laws and judgments.

#5 Comment By Jonathan On June 30, 2015 @ 2:21 pm

Terrible title, would have skipped if I didn’t see a more compelling framing on Twitter, “A fail-safe guide to Twitter opinion on Supreme Court Decisions”

#6 Comment By philadelphialawyer On June 30, 2015 @ 3:51 pm

ADL:

“Writing to Madison from Paris, where, he [Jefferson] said, they were immersed in a course of reflection ‘on elementary principles of society,’ he remarked that he was led to a consideration of the question ‘Whether one generation of men has a right to bind another’ a question ‘that seems never to have been started either on this or on our side of the water.’ ‘I set out on this ground which I suppose to be self-evident,’ observes Jefferson, ‘that the earth belongs in usufruct to the living, that the dead have neither powers nor rights over it. * * * On similar ground it may be proved that no society can make a perpetual constitution or even a perpetual law. * * * Every constitution, then, and every law, naturally expires at the end of nineteen years. If it be enforced longer, it is an act of force and not of right. * * * This principle that the earth belongs to the living and not to the dead is of very extensive application and consequences in every country, and most especially in France. It enters into the resolution of the questions: Whether the nation may change the descent of land holden in tail? Whether they may change the appropriation of lands given anciently to the church, colleges, orders of chivalry and otherwise in perpetuity? Whether they may abolish the charges and privileges attached on lands, including the whole catalogue ecclesiastical and feudal? It goes to hereditary offices, authorities and jurisdictions; to hereditary orders, distinctions and appellations; to perpetual-monopolies in commerce, the arts and sciences; and a long train of et ceteras; and it renders the question of reimbursement a question of generosity and not of right.'”

Bergh: Writings of Thomas Jefferson, Vol XVI, pages (vii-ix).

Taken from Jefferson’s letter to Madison, 6September1789, written in Paris…

[6]

As for constitutions, Jefferson goes on to say:

“It may be said that the succeeding generation exercising in fact the power of repeal, this leaves them as free as if the constitution or law had been expressly limited to 19 years only. In the first place, this objection admits the right, in proposing an equivalent. But the power of repeal is not an equivalent. It might be indeed if every form of government were so perfectly contrived that the will of the majority could always be obtained fairly and without impediment. But this is true of no form. The people cannot assemble themselves; their representation is unequal and vicious. Various checks are opposed to every legislative proposition. Factions get possession of the public councils. Bribery corrupts them. Personal interests lead them astray from the general interests of their constituents; and other impediments arise so as to prove to every practical man that a law of limited duration is much more manageable than one which needs a repeal.”

So, it sounds as if TJ was indeed speaking against written constitutions. Of course, quoting Jefferson is a lot like quoting the Bible or Shakespeare in that, in all their voluminosity, you can find a lot of things that are not merely inconsistent but flatly contradictory.

#7 Comment By ADL On June 30, 2015 @ 9:22 pm

@ philadelphialawyer says:
June 30, 2015 at 3:51 pm

> I stand corrected. TJ sure was prolific.

#8 Comment By Andrew On July 2, 2015 @ 3:41 am

It’s more revealing than that, Professor Jacobs, indicating merely the fashionable opinions of those on social media on the judiciary. It’s Exhibit A of the failure of mass democracy and how the rule of law will always eventually fall to what a 51% majoritarian collection will want at any given time. The Founders knew it; some of them might have been surprised it would take us 226 years to produce such a glaring example of autonomous individual judgment in Kennedy and the others over self-government. We had a couple decent centuries, and set it all up to boost the republicanism part and severely limit the mass democracy part, but in the end democracy always wins.

#9 Comment By Reflectionephemeral On July 2, 2015 @ 9:47 am

To be fair, points 3-6 account for Justice Scalia’s opinions as well.

Compare Adarand v Pena with Obergefell v. Hodges on the original understanding of the 14th Amendment; or Utility Air v EPA with King v Burwell on the importance of literal adherence to statutory text. All along insisting that a contrary view is not merely mistaken, but somehow illegitimate.

So, this post should probably be read in tandem with the recent Gawker article, “Scalia Is a Twitter Egg”