Eating the Rule of Law

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Eating the Rule of Law

At the heart of lib­erty is the right to define one’s own con­cept of exis­tence, of mean­ing, of the uni­verse, and of the mys­tery of human life.

Jus­tice San­dra Day O’Connor, Planned Par­ent­hood v. Casey
Quoted by Jus­tice Anthony Kennedy, Lawrence v. Texas

I have never heard of a law that attempted to restrict one’s “right to define” cer­tain con­cepts; and if the pas­sage calls into ques­tion the government’s power to reg­u­late actions based on one’s self-​defined “con­cept of exis­tence, etc.,” it is the pas­sage that ate the rule of law.

Jus­tice Antonin Scalia, Lawrence v. Texas (dissenting)

I have long thought that this exchange from the Lawrence v. Texas case per­fectly sum­ma­rizes the dif­fer­ence between lib­eral and con­ser­v­a­tive judi­cial philoso­phies. We can see this being played out almost daily in the ongo­ing saga of how the law should treat “trans­gen­der” peo­ple. Accord­ing to Jus­tices O’Connor and Kennedy, “the right to define one’s own con­cept of exis­tence” – pre­sum­ably includ­ing the right to define one’s gen­der, regard­less of bio­log­i­cal real­ity – is “at the heart of lib­erty.” So, when the first trans­gen­der case comes before SCO­TUS, it is clear that Jus­tice Kennedy (unless, God will­ing, he retires first) will rule that a man who thinks he’s a woman has the “right” to shower in front of women and girls.

On the other hand, Jus­tice Scalia’s view, which I hope is shared by a major­ity of the court, is that there is no law that restricts a man’s right to believe he is a woman, but that this belief has no bear­ing on the government’s power to reg­u­late actions, such as pro­hibit­ing a bio­log­i­cal male from using the women’s locker room or bath­room. The rule of law clearly requires that laws be self-​consistent and have a log­i­cal lim­it­ing prin­ci­ple. Oth­er­wise, no one would know what the law is, and worse, a per­son could be found in vio­la­tion of a sub­jec­tive law based on some­one else’s opin­ion rather than on his own actions.

So, in order to main­tain the rule of law, there must be some objec­tive def­i­n­i­tion of “man” or “woman.” Hav­ing rejected the sci­en­tific def­i­n­i­tion of “man” (an X and a Y chro­mo­some) and “woman” (XX chro­mo­somes), lib­er­als must scram­ble for an alter­nate def­i­n­i­tion. They seem to have set­tled on the fact that a man who feels more com­fort­able dress­ing and act­ing “like a woman” is really a woman, and vice versa. But these are the same peo­ple who have argued for years that men and women are “equal” (i.e. “the same”) and that gen­der roles are “socially con­structed.” How can that be?

The answer is that lib­er­als are per­fectly com­fort­able “eat­ing the rule of law” as long as they get to pun­ish those who dis­agree with them.

At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.

Justice Sandra Day O’Connor, Planned Parenthood v. Casey
Quoted by Justice Anthony Kennedy, Lawrence v. Texas

I have never heard of a law that attempted to restrict one’s “right to define” certain concepts; and if the passage calls into question the government’s power to regulate actions based on one’s self-defined “concept of existence, etc.,” it is the passage that ate the rule of law.

Justice Antonin Scalia, Lawrence v. Texas (dissenting)

I have long thought that this exchange from the Lawrence v. Texas case perfectly summarizes the difference between liberal and conservative judicial philosophies. We can see this being played out almost daily in the ongoing saga of how the law should treat “transgender” people. According to Justices O’Connor and Kennedy, “the right to define one’s own concept of existence” – presumably including the right to define one’s gender, regardless of biological reality – is “at the heart of liberty.” So, when the first transgender case comes before SCOTUS, it is clear that Justice Kennedy (unless, God willing, he retires first) will rule that a man who thinks he’s a woman has the “right” to shower in front of women and girls.

On the other hand, Justice Scalia’s view, which I hope is shared by a majority of the court, is that there is no law that restricts a man’s right to believe he is a woman, but that this belief has no bearing on the government’s power to regulate actions, such as prohibiting a biological male from using the women’s locker room or bathroom. The rule of law clearly requires that laws be self-consistent and have a logical limiting principle. Otherwise, no one would know what the law is, and worse, a person could be found in violation of a subjective law based on someone else’s opinion rather than on his own actions.

So, in order to maintain the rule of law, there must be some objective definition of “man” or “woman.” Having rejected the scientific definition of “man” (an X and a Y chromosome) and “woman” (XX chromosomes), liberals must scramble for an alternate definition. They seem to have settled on the fact that a man who feels more comfortable dressing and acting “like a woman” is really a woman, and vice versa. But these are the same people who have argued for years that men and women are “equal” (i.e. “the same”) and that gender roles are “socially constructed.” How can that be?

The answer is that liberals are perfectly comfortable “eating the rule of law” as long as they get to punish those who disagree with them.