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Category Archives: Capricious Governance

On Fox’s Brit Bair, I normally just watch the panel segment. Recently one of the commentators, Bob Fournier, bemoaned the public’s growing mistrust of government and other institutional pillars, such as the healthcare industry. In summary, he said it is understandable, but unhealthy (for the republic).

Maybe. Read More »


The media has managed to vilify Robert Bork to such an extent that his recent passing was hardly a blip on the continuum. Bork was one of the best legal minds in the country during his time and argued before the Supreme Court on many occasions. As Solicitor General, he was also the central figure in bringing down Richard Nixon around the Watergate affair and convicting no fewer than 48 administration officials of crimes.

After returning to Yale Law School from government, Bork continued his lifelong work of saving the Constitution from activist judges: those who render opinions based on politics and personal instincts and experiences, vs. the Constitution. He began this effort in earnest in 1971 with a publication in the Indiana Law Review. He later published, The Tempting of America and after his death, Saving Justice. Both books made the case for what is now known as “originalism.”

Here is the gist of originalism. After some recent Court decisions, it is worth knowing what this means.

  • “A legitimate Court must be controlled by principles exterior to the will of the Justices.”
  • The Court must “accept any value choice the legislature makes unless in clearly runs contrary to a choice made in the framing of the Constitution.”
  • A “judge must stick close to the text and the history” and their fair implications, and not construct new rights.

Bork’s last written words were these:

“It bears endless repeating that we are now being ruled in some of our most crucial cultural and moral issues by judges who have acquired the power, but certainly not the authority, to take these decisions out of our hands… They continue their attack on the basic structure of the law by filling the categories of law and politics. Originalism provides hope that the constitutional structure of our country will be maintained.”

The inspiration for this post and some of its text was sourced from National Review, July 2013, Charles J. Cooper

When it comes to the members of Congress and the Executive, so long as they do no harm to the economy or to our national security, and do not further usurp what is left of our freedoms, I am not particularly bothered by who is in the chairs. I advocate politically only when I see any of this going off the rails, which it tends to do on a regular basis.

Hanlon’s Razor: “Never attribute to malice that which is adequately explained by stupidity.” When I look at Washington, I see both at full throttle most of the time. When I look at the parties, they wax and wane between the two by my lights, but as a decades-long student of history, I see more malice from the left and more idealism for its own sake, and more political stupidity from the right.

On idealism: “Idealism is fine, but as it approaches reality, the costs become prohibitive.” We have progressed beyond this tipping point. “Dubya” was responsible for it and Obama hammered down the throttle. And here we are.

The blather and Sturm and Drang around the “Cliff” has become white noise, both sides playing chicken with something they created in the first place, both seeing everything through a political calculus. I am not an advisor to the GOP, but I do have a piece of advice for them: If you do not want to become a permanent political extension of the left, say this to the American public, “Raising taxes on those who now already pay most of the taxes is nothing more than an appeal to class warfare. It will accomplish next to nothing regarding deficit spending. On the other hand, we could eliminate 50% of current positions in the federal government with little to no impact on current services. We are open to broadening the tax base, but will not go along with any such proposal which does not simultaneously and permanently reduce spending $1.50 for every $1.00 in new taxation.” Then let it ride.

The election is over. You blew it (and I backed you). More elections are coming and all you can do is hold to your principles while you figure out how to be politically smarter.