EU Pundit : Issues of the European Union: October 2015

America currently has numerous serious problems, many of which directly impact Europe, not the least of which are people in the legal profession who appear not to understand "the law".

Our statement above reacts to an article at cnsnews.com headlined Legal Scholars Urge Officeholders: Refuse to Accept Same-Sex Marriage Opinion as Binding Precedent.

To our great astonishment so-called "legal scholars" urge government officials in the United States to ignore U.S. Supreme Court decisions.

The entire basis of "law and order" in the civilized world, especially for people conservatively minded, is that law court decisions must be obeyed, even if they involve minor transgressions such as illegal parking or minor traffic violations.

Imagine if U.S. citizens and residents could select which laws to follow and which to ignore. There would be anarchy and chaos everywhere. We already have enough examples worldwide of the consequences of the breakdown of judicially imposed "law and order".

How can people within the legal profession seriously incite government employees to disregard U.S. Supreme Court decisions and thus to feel free to "pick and choose" the laws and court decisions that they choose to obey in the exercise of their paid and sworn duties?

They have a legal option: if government officials disagree strongly with what the laws and court decisions tell them to do, then they should look for another job.

Who has the legal right here -- according to law?

It is the U.S. Supreme Court which possesses Constitutional jurisdiction as the nation's highest court to have the last say on what is constitutional and what is not constitutional as a matter of law.

Individual citizens, also as government employees, are free of course to have their own "opinions" about U.S. Supreme Court decisions and the legal, political, economic and societal issues to which those decisions may relate, but they have ZERO jurisdiction to decide what is constitutional as a matter of law and what is not constitutional in any particular government-related matter.

In the government offices which they hold, government officials are sworn to uphold the nation's laws, and what those laws require is decided by the nation's highest court, and not by individual government employees either in their private or employment capacities.

One can be sure that the present ultra-conservative U.S. Supreme Court has issued many more decisions which are repugnant to liberal views than the decisions they have made which are opposed by those who oppose the Supreme Court's decision in the Obergefell v. Hodges decision.

Picking out one case that did not go their way as a case for disobedience is ludicrous. If what the "alleged" legal scholars write were true, then we could all just ignore any Supreme Court decision we chose. Just do as we please. LOL.

We say "so-called" and "alleged" legal scholars because the label "legal scholar" generally derives from some kind of authority of position granted to an individual by some organization or institution which is recognized as having the jurisdiction to grant that authority of position in contemporary American society.

But why give ANY credence to the decisions of those lesser institutions, including the titles they have granted, if the dictates of the much higher institution, the U.S. Supreme Court, are incited to be ignored?

What do we care what "title" some group has granted to ANYONE?

Thankfully, civilized society is governed by the sane consent of the governed to the main rules and orders of civilized life in a democratic nation such as the United States.

If that were not so, then people would feel free to challenge anyone and any institution, including the so-called "legal scholars" and the institutions who pay their salaries, to which the average U.S. citizen or resident has no "privity", i.e. they mean nothing to them, either in law or in fact.

Judge Learned Hand commented on "the spirit of liberty" as follows [formatted]:

"What do we mean when we say that first of all we seek liberty?

I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts.

These are false hopes; believe me, these are false hopes.

Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there, it needs no constitution, no law, no court to save it."

If the dictates of the highest court of law of the nation are not to be observed, then government and academic positions are equally non-sacrosanct from challenge and can be alleged to mean "nothing". Who says you are who you are? What is the authority? And why should we recognize THAT?

Those who choose to attack the pillars of society must recognize that in doing so, they also destroy the foundation upon which they themselves are sitting.

It reminds us of James Clerk Maxwell's poem (Maxwell was the founder of electromagnetism and one of the greats of modern science) which he wrote as his "notes" regarding the President's Address at the British Association, 1874. His comments on "petty promotion[s] in nebulous kingdoms of mist" are instructive:

"In the very beginnings of science,
the parsons, who managed things then,
Being handy with hammer and chisel,
made gods in the likeness of men;

Till Commerce arose, and at length
some men of exceptional power
Supplanted both demons and gods by the atoms,
which last to this hour.

Yet they did not abolish the gods,
but they sent them well out of the way,
With the rarest of nectar to drink,
and blue-fields of nothing to sway.

From nothing comes nothing, they told us
naught happens by chance, but by fate;
There is nothing but atoms and void,
all else is mere whims out of date!

Then why should a man curry favour
with beings who cannot exist,
To compass some petty promotion
in nebulous kingdoms of mist?

But not by the rays of the sun,
nor the glittering shafts of the day,
Must the fear of the gods be dispelled,
but by words, and their wonderful play.

So treading a path all untrod,
the poet-philosopher sings
Of the seeds of the mighty world
the first-beginnings of things;

How freely he scatters his atoms
before the beginning of years;
How he clothes them with force as a garment,
those small incompressible spheres!

Nor yet does he leave them hard-hearted
he dowers them with love and with hate,
Like spherical small British A[...]
in infinitesimal state;

Till just as that living Plato,
whom foreigners nickname Plateau,
Drops oil in his whisky-and-water
(for foreigners sweeten it so);

Each drop keeps apart from the other,
enclosed in a flexible skin,
Till touched by the gentle emotion
evolved by the prick of a pin:

Thus in atoms a simple collision
excites a sensational thrill,
Evolved through all sorts of emotion,
as sense, understanding, and will

(For by laying their heads all together,
the atoms, as councillors do,
May combine to express an opinion
to every one of them new).

There is nobody here, I should say,
has felt true indignation at all,
Till an indignation meeting
is held in the Ulster Hall;

Then gathers the wave of emotion,
then noble feelings arise,
Till you all pass a resolution
which takes every man by surprise.

Thus the pure elementary atom,
the unit of mass and of thought,
By force of mere juxtaposition
to life and sensation is brought;

So, down through untold generations,
transmission of structureless germs
Enables our race to inherit the thoughts
of beasts, fishes, and worms.

We honour our fathers and mothers,
grandfathers and grandmothers too;
But how shall we honour the vista
of ancestors now in our view?

First, then, let us honour the atom,
so lively, so wise, and so small;
The atomists next let us praise,
Epicurus, Lucretius, and all.

Let us damn with faint praise Bishop Butler,
in whom many atoms combined
To form that remarkable structure,
it pleased him to call his mind.

Last, praise we the noble body
to which, for the time, we belong,
Ere yet the swift whirl of the atoms
has hurried us, ruthless, along,

The British Association
like Leviathan worshipped by Hobbes,
The incarnation of wisdom,
built up of our witless nobs,

Which will carry on endless discussions,
when I, and probably you,
Have melted in infinite azure
in English, till all is blue."

- James Clerk Maxwell,
Notes re the President's Address
at the British Association, 1874

We posted previously about developments in transatlantic digital privacy.

It is interesting in this regard to note that the landmark Electronic Communications Privacy Act (ECPA viz. CalECPA) in the State of California, USA, has just been signed into law by Governor Jerry Brown.

CalECPA provides that a warrant is required for a great variety of digital searches and seizures by law enforcement agencies and similar bodies.

Read California Now Has the Nation's Best Digital Privacy Law in an article by Kim Zetter at WIRED, who writes:

"The landmark Electronic Communications Privacy Act bars any state law enforcement agency or other investigative entity from compelling a business to turn over any metadata or digital communications—including emails, texts, documents stored in the cloud—without a warrant. It also requires a warrant to track the location of electronic devices like mobile phones, or to search them.

The legislation, which easily passed the Legislature last month, is the most comprehensive in the country, says the ACLU."

Read the article here.

See EDRi for the newest developments in Europe on protecting digital freedom.

We are not always in agreement with the sources we cite, but one should be aware of what is going on in these areas of law, which impact everyone.