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We Need Judicial Activism
Now that SCOTUS deliberation over the constitutionality of portions of Obamacare is going much worse than most liberals predicted, left-leaning pundits are screaming "judicial activism!" which is cute, though I understand the frustration. As Scott Lemieux reminded David Frum:
[C]onservatives on the court (and much more so off the court) do spend a lot of time railing against “judicial activism.” What the conservatives on the Court absolutely don’t do is oppose “judicial activism” in practice.
And this should not be surprising. As a practical matter, to refuse to rule in an "activist" fashion is to defer slavishly to precedent, whatever it might be, whether one believes precedent was based on "activist" reinterpretation or ignorance or error. Even then, interpretation of the implications of relevant precedent requires an interpretative framework. The least "activist" interpretative framework would be one in which judges attempt to interpret the relevant body of law as closely as possible to the intentions of the proximate lawmakers, whether they be legislators or other judges. Nobody does this. And why would they? It's stupidly arbitrary. What if the intention behind prior rulings was ignorant, or perniciously ideological, or harmful?
Were we to make slavish deference to precedent universal law, ala Kant, we'd end up with what a sort of path-dependent judicial drift--tiny but unavoidable interpretative mutations piling up until the law ends up in places no one finds desirable. Interpretative frameworks that push the law toward substantive ideals save us somewhat from the problem of arbitrary, path-dependent drift. But they create another kind of arbitrary drift, as rival frameworks push the interpretation of the laws in incompatible directions. This can, again, leave us in stupid places no one ever had in mind. The only rescue is the occasional "activist" saltative leap that either ignores or radically reinterprets precedent in order to restore to the law the coherence of principle, for a while at least.
"Originalism" is not a non-activist interpretative framework. An "originalist" framework applied to the interpretation of non-originalist precedent predictably generates "activist" decisions. That is why, as I've argued before, originalism is just one among many philosophies of the "living constitution", and does not differ in fundamental method from the progressive "second-bill-of-rights" philosophy, which attempts to reinterpret the law such that over time the accumulation of progressive precedent codifies certain basic rights unfortunately omitted from our antique constitution. Both philosophies seek to rewrite the law, as it now stands, better to conform to some external ideal. Originalists seem to think their ideal has more legitimacy than the judicial New Dealers because today's law bears an imagined evolutionary relationship to the thing they have in mind. The orginalist argument is somewhat like the argument that although men now wear baseball caps instead of fedoras, they should begin wearing fedoras because they used to wear them. But that is not actually a good reason to wear a fedora instead of a cap.
Anyway, if you're going to have a written constitution with strong judicial review, there's just no way around judges deciding some cases according to their personal ideological preferences, which is why everybody cares so much about the partisan affiliation of the guy who gets to nominate people to the SCOTUS. Norms of deference to precedent and legislative intent, which limit just how activist courts can be in practice, are healthy. But every now and then court majorities are going to spend down their fund of legitimacy in "activist" efforts to impose/block what they see as good/bad policy or establish/block what they see as a good/bad precedent, and this isn't at all a bad thing.
What is human dignity? Here's a primer, told through 200 years of great essays, lectures, and novels.
- Human dignity means that each of our lives have an unimpeachable value simply because we are human, and therefore we are deserving of a baseline level of respect.
- That baseline requires more than the absence of violence, discrimination, and authoritarianism. It means giving individuals the freedom to pursue their own happiness and purpose.
- We look at incredible writings from the last 200 years that illustrate the push for human dignity in regards to slavery, equality, communism, free speech and education.
The inherent worth of all human beings<p>Human dignity is the inherent worth of each individual human being. Recognizing human dignity means respecting human beings' special value—value that sets us apart from other animals; value that is intrinsic and cannot be lost.</p> <p>Liberalism—the broad political philosophy that organizes society around liberty, justice, and equality—is rooted in the idea of human dignity. Liberalism assumes each of our lives, plans, and preferences have some unimpeachable value, not because of any objective evaluation or contribution to a greater good, but simply because they belong to a human being. We are human, and therefore deserving of a baseline level of respect. </p> <p>Because so many of us take human dignity for granted—just a fact of our humanness—it's usually only when someone's dignity is ignored or violated that we feel compelled to talk about it. </p> <p>But human dignity means more than the absence of violence, discrimination, and authoritarianism. It means giving individuals the freedom to pursue their own happiness and purpose—a freedom that can be hampered by restrictive social institutions or the tyranny of the majority. The liberal ideal of the good society is not just peaceful but also pluralistic: It is a society in which we respect others' right to think and live differently than we do.</p>
From the 19th century to today<p>With <a href="https://books.google.com/ngrams/graph?year_start=1800&year_end=2019&content=human+dignity&corpus=26&smoothing=3&direct_url=t1%3B%2Chuman%20dignity%3B%2Cc0" target="_blank" rel="noopener noreferrer">Google Books Ngram Viewer</a>, we can chart mentions of human dignity from 1800-2019.</p><img type="lazy-image" data-runner-src="https://assets.rebelmouse.io/eyJhbGciOiJIUzI1NiIsInR5cCI6IkpXVCJ9.eyJpbWFnZSI6Imh0dHBzOi8vYXNzZXRzLnJibC5tcy8yNDg0ODU0My9vcmlnaW4ucG5nIiwiZXhwaXJlc19hdCI6MTY1MTUwMzE4MX0.bu0D_0uQuyNLyJjfRESNhu7twkJ5nxu8pQtfa1w3hZs/img.png?width=980" id="7ef38" class="rm-shortcode" data-rm-shortcode-id="9974c7bef3812fcb36858f325889e3c6" data-rm-shortcode-name="rebelmouse-image" />
American novelist, writer, playwright, poet, essayist and civil rights activist James Baldwin at his home in Saint-Paul-de-Vence, southern France, on November 6, 1979.
Credit: Ralph Gatti/AFP via Getty Images
The future of dignity<p>Around the world, people are still working toward the full and equal recognition of human dignity. Every year, new speeches and writings help us understand what dignity is—not only what it looks like when dignity is violated but also what it looks like when dignity is honored. In his posthumous essay, Congressman Lewis wrote, "When historians pick up their pens to write the story of the 21st century, let them say that it was your generation who laid down the heavy burdens of hate at last and that peace finally triumphed over violence, aggression and war."</p> <p>The more we talk about human dignity, the better we understand it. And the sooner we can make progress toward a shared vision of peace, freedom, and mutual respect for all. </p>
Scientists find that bursts of gamma rays may exceed the speed of light and cause time-reversibility.
- Astrophysicists propose that gamma-ray bursts may exceed the speed of light.
- The superluminal jets may also be responsible for time-reversibility.
- The finding doesn't go against Einstein's theory because this effect happens in the jet medium not a vacuum.
Jet bursting out of a blazar. Black-hole-powered galaxies called blazars are the most common sources detected by NASA's Fermi Gamma-ray Space Telescope.
Cosmic death beams: Understanding gamma ray bursts<div class="rm-shortcode" data-media_id="cu2knVEk" data-player_id="FvQKszTI" data-rm-shortcode-id="c6cfd20fdf31c82cb206ade8ce21ba3f"> <div id="botr_cu2knVEk_FvQKszTI_div" class="jwplayer-media" data-jwplayer-video-src="https://content.jwplatform.com/players/cu2knVEk-FvQKszTI.js"> <img src="https://cdn.jwplayer.com/thumbs/cu2knVEk-1920.jpg" class="jwplayer-media-preview" /> </div> <script src="https://content.jwplatform.com/players/cu2knVEk-FvQKszTI.js"></script> </div>
Is Bitcoin akin to 'digital gold'?
- In October, PayPal announced that it would begin allowing users to buy, sell, and hold cryptocurrencies.
- Other major fintech companies—Square, Fidelity, SoFi—have also recently begun investing heavily in cryptocurrencies.
- While prices are volatile, many investors believe cryptocurrencies are a relatively safe bet because blockchain technology will prove itself over the long term.
Presentation slide from Sanja Kon's presentation on the evolution of money at 2020 Web Summit
Credit: Sanja Kon<p>The move came shortly after the payments company Square invested $50 million into Bitcoin, and after Fidelity announced that it was opening a Bitcoin fund into which qualified purchasers could invest <a href="https://www.bloomberg.com/news/articles/2020-08-26/fidelity-launches-inaugural-bitcoin-fund-for-wealthy-investors" target="_blank">(minimum investment: $100,000)</a>. Together, this institutional backing might have something to do with Bitcoin's recent surge back to near its 2017 price peak of $19,783. (Bitcoin is listed at 19,384.30 as of Dec. 3.)<br></p>
Presentation slide from Sanja Kon's presentation on the evolution of money at 2020 Web Summit
Credit: Sanja Kon<p>But more importantly, it suggests cryptocurrencies might soon have the opportunity to prove themselves in real-world use cases. After all, skeptics have long doubted the ability of cryptocurrencies to go mainstream as a form of everyday payment. But people seem increasingly comfortable with digital payment systems.</p><p style="margin-left: 20px;">"The entire world is going to come into digital first," Schulman said at Web Summit, adding that PayPal's services already go hand-in-hand with cryptocurrencies. "As we thought about it, digital wallets are a natural complement to digital currencies. We've got over 360 million digital wallets and we need to embrace cryptocurrencies."</p><p>Sanja Kon, vice president of global partnerships at the cryptocurrency payments processor company UTRUST, also spoke at Web Summit about the increasing adoption of digital payments:</p><p style="margin-left: 20px;">"Physical cash is becoming more and more obsolete. And the next step in the evolution is digital currency."</p><p>Kon noted some of the inherent advantages of cryptocurrencies, namely ownership. </p><p style="margin-left: 20px;">"For many people, this is really the main benefit of cryptocurrency: Users owning cryptocurrencies are able to control how they spend their money without dealing with any intermediary authority like a bank or a government, for example," Kon said, adding that there are no bank fees associated with cryptocurrencies, and that international transaction fees are significantly lower than wire transfers of fiat currency.</p><p>Kon said cryptocurrencies have unique growth opportunities in areas where people aren't integrated into modern banking systems:</p><p style="margin-left: 20px;">"With cryptocurrencies and blockchain, with the use of just a smartphone and access to internet, Bitcoin and cryptocurrencies can be available to populations of people and users without access to the traditional banking system."</p>
Bitcoin as 'digital gold'<p>Still, it could take years for people to start using cryptocurrencies for everyday purchases on a large scale. Despite this, many cryptocurrency advocates see digital currencies, particularly Bitcoin, as a way to store value—digital gold, essentially.</p><p style="margin-left: 20px;">"I don't think Bitcoin is going to be used as a transactional currency anytime in the next five years," billionaire investor Mike Novogratz recently told <a href="https://www.bloomberg.com/news/articles/2020-10-23/novogratz-says-bitcoin-is-digital-gold-not-a-currency-for-now?srnd=markets-vp" target="_blank">Bloomberg</a>. "Bitcoin is being used as a store of value. [...] "Bitcoin as a gold, as digital gold, is just going to keep going higher. More and more people are going to want it as some portion of their portfolio."</p><p>There are obvious parallels between gold and Bitcoin: Both are mined, do not degrade over time, are finite in supply, and aren't directly tied to the value of fiat currency, making them <a href="https://www.reuters.com/article/us-gold-inflation/gold-as-an-inflation-hedge-well-sort-of-idUSKCN1GD516" target="_blank" rel="noopener noreferrer">relatively invulnerable to inflation</a>. The obvious objection is that the price of Bitcoin, and cryptocurrencies in general, is far more volatile than gold.</p><p>But for investors who believe the inherent value of cryptocurrency technology will prove itself over the long term, these price fluctuations are just bumps on the long road to the future of currency. </p><p style="margin-left: 20px;">"It's no longer a debate if crypto is a thing, if Bitcoin is an asset, if the blockchain is going to be part of the financial infrastructure," Novogratz said. "It's not if, it's when, and so every single company has to have a plan now."</p>
A new study finds that some people just want privacy.
- Despite its reputation as a tool for criminals, only a small percentage of Tor users were actually going to the dark web.
- The rate was higher in free countries and lower in countries with censored internet access.
- The findings are controversial, and may be limited by their methodology to be general assumptions.