How to Argue Against Madmen and Avoid Judicial Politics

May 16, 2023 by David Fowler

How to Argue Against Madmen and Avoid Judicial Politics
“Judicial politics” is the law of those who G.K. Chesterton would have called “madmen.” His description of madmen (below) is perfect! But what do you do when the world, including most of your Christian friends, think you are the madman? And how do you argue against those—foe or friend—who have gone mad and don’t know it? 
Last week, I wrote this about judicial politics:

Judicial politics represents a godless view of the cosmos and of law . . . [b]ecause under this approach all law comes from human beings. . . . 

[T]here is no law about human nature or human relationships that the Court must confront and take into consideration . . . . There is no transcendent law outside of the justices’ own heads to constrain or guide their conclusions.

I contrasted judicial politics with what an argument of law is:
An argument of law would encompass older decisions and the common law on which they were decided. An argument of law rests on the proposition that the Court must confront realities it does not create, which is what common law is according to those who framed our Constitution, and its impending decision must be made in light of those realities. (emphasis supplied).

Why Chesterton Would Say Judicial Politics is Madness

Chesterton not only offers a great definition of a madman but explains why arguing with him is madness—you will lose!
If you argue with a madman, it is extremely probable that you will get the worst of it; for in many ways his mind moves all the quicker for not being delayed by things that go with good judgment. He is not hampered by a sense of humour or by clarity, or by the dumb certainties of experience. He is the more logical for losing certain sane affections. Indeed, the common phrase for insanity is in this respect a misleading one. The madman is not the man who has lost his reason. The madman is the man who has lost everything except his reason. (emphasis supplied)1

Ever since Descartes’s “I think, therefore I am” became detached from a universe created, sustained, and superintended by God, nothing was left but pure reason. We “lost everything except . . . reason.” We became madmen!

An argument of law says, “No, that’s not true.” It says, as I said, we are “confronted with realities” we did “not create.” The Christian would add that those realities also reveal the glory of the Triune Creator.

But without the God the Bible speaks of from cover to cover, the madman says “experiences” are just “dumb” (they do not speak of or reveal the glory of God). Therefore, they are devoid of any meaning or directed toward any intelligible end; they just happened, i.e., they are just “certainties” of experience.

Madmen in the Christian Policy Ranks

After the draft of the U.S. Supreme Court’s decision reversing Roe v. Wade was leaked last year (Dobbs), the leader of a Christian policy organization sent a host of others policy and legal leaders this great question: 
Let’s go further [than just returning abortion to the states.] How can we begin pressing the court to not just overturn Roe, but recognize an affirmative right to life under the Constitution, grounded in the right to life asserted in its foundational document, the Declaration of Independence? Don’t tell me why we can’t. Tell me how we can.  
I loved his last line. 

So, I gave him an answer rooted in the common law that serves as the lexicon for our Constitution and the 14th Amendment. I explained how that lexicon said the “unborn” were “persons.” Therefore, I asserted, we should argue that the 14th Amendment prohibits states from denying “unborn persons” life without due process of law or the equal protection of the laws prohibiting murder. This is how life could be protected nationwide.

That argument was flat out rejected by a leading member of the group who is a lawyer: 
Really respect David’s thoughts here.  I would argue that where we differ is that he describes how the legal system ought to work and I am explaining how it currently works.  Both views are helpful.

“Helpful,” yes, but effectively he said judicial politics is how the legal system “currently works,” and there is no point trying to fix anything. 

How Might Chesterton Have Responded

If I could be so bold, Chesterton with his biting wit might have said something like this: 
Judicial politics depends solely on the reason of judges detached from anything other than their own minds, and therefore it is a mad game played by madmen. If you agree to play, it is extremely probable that you will get the worst of it.

Because Christians have been getting “the worst of it” for a long time, I’m not interested in arguing along with madmen, but against them and their madman games.

How Do You Argue Against Madmen

You start filing briefs like the one at this link that makes madmen respond to legal arguments.

By that brief, you make the judge (who may be a madman too) respond to and explain why your legal argument is wrong. 

Moreover, you make the lower court federal judge explain why the U.S. Supreme Court’s never-overruled precedents that you cite as support for your legal argument are wrong and make the other side and the judge explain why those extant precedents should not be followed.

If you read just the first page of the brief, you will probably learn something you were never told; I sure wasn’t informed of it, and I went to law school!

Explaining My Argument Against Madmen

I would encourage you to read the brief I linked to, but to help you understand it, I have tried to spell it out in layman’s language:
1. The brief attacks the parental rights arguments of the ACLU that have succeeded against the transgender laws in Arkansas and Alabama by using two key SCOTUS decisions from last June—Bruen and Dobbs—to connect their reliance on the Constitution’s “text and history” to interpret its provisions—to the common law right of all “persons” to be protected from “personal injury” as set forth in Williams Blackstone’s Commentaries on the Constitution (1765).
Then, I connect that common law to SCOTUS Justice William Story (an early towering constitutional and legal figure) who, in his Commentaries on the Constitution (1833), wrote that “[t]he whole Structure of our … jurisprudence stands upon the original foundations of the common law.” 
From there, I connect that common law foundation to our Constitution to the 5th and 14th Amendments.  
Finally, I ask the ACLU to demonstrate what language in the “text” of the 14th Amendment and its “history” abrogated the common law as the “foundation” of “our jurisprudence” and abrogated (1) a child’s right to be protected from personal injury and (2) a doctor’s duty to preserve a person’s physical health, not injure him or her.
2. It attacks the argument of the ACLU and LAMBDA Legal for a vacuous and autonomous claim to parental rights devoid of any substance and allows a judge to ask them to explain why parents can consent to injuring parts of their child’s body that are healthy under the guise of “healthcare” but can’t otherwise physically injure their child or authorize someone else to do so.
3. It should stir up the medical community if it is paying attention and put it in the position of needing to articulate what healthcare is:  that which restores health to a sick body or that which can destroy an otherwise healthy, properly functioning body?  

Am I a Madman?

I may be a madman for speaking the truth about the mad world in which we live, and the madness of those in the Christian community who have embraced and resigned themselves to madness “as how things currently work.” But as one faithful lawyer colleague said to me, “A mighty oak is just a nut who held his ground!” 

By grace, I intend to hold my ground. I hope you will join me. 

Standing together a mighty forest may grow. From it solid materials can be harvested to construct new cathedrals for the glory of God to replace those ecclesiastical facilities built on shifting sand that madmen will tear down.
1 G. K. Chesterton, Orthodoxy

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