Elena Kagen and the Primacy of the Law

The title of this post does not refer to a book or law review article written by the Supreme Court nominee. It refers to something that she does not understand.

There are two books that the nominee should read:

Bureaucracy , by Ludvig von Mises (the full text is on line at von Mises Institute.), and

The Law, by Frederic Bastiat. (a very short book written in 1850 in France. See other references to Bastiat on this blog).

Since I do not have time to give justice to this topic, I will give only two quotes. Please refer to the two short books, which say it all far better that this writer ever could.


"Primacy of the law means that no judge or officeholder has the right to interfere with any individual’s affairs or conditions unless a valid law requires or empowers him to do so. Nulla poena sine lege. No punishment unless ordered by a law. It is precisely the inability of the Nazis to understand the importance of this fundamental principle that qualifies them as antidemocratic. In the totalitarian system of Hitler Germany the judge has to come to his decision according to das gesunde Volksempfinden, i.e., in accordance with the sound feelings of the people. As the judge himself has to decide what the sound feelings of the people are, he is sovereign on his bench like the chieftain of a primitive tribe." von Mises, Op. Cite

"Justice Means Equal Rights." Bastiat, this is the title of a section of The Law.

The point is that the law is not decided with reference to personal goals for society. Otherwise, why aren't my own goals based upon my own ideology as good as anyone's? BHO's and presumably his nominee, Elena Kagen's ideology is Hegelian Dialectic Materialism. Mine is free enterprise and freedom in general. Theirs leads to forced redistribution to makes everyone equal. My leads to everyone, rich or poor, being treated equally under the law. Now is the time for choosing which direction to go.