Breaking: Supreme Court says Gitmo detainees must have access to US courts Update: Scalia: “The Nation will live to regret what the Court has done today.”

posted at 10:45 am on June 12, 2008 by Ed Morrissey

In a 5-4 decision, the Supreme Court ruled today that the unlawful combatants held at Guantanamo Bay in Cuba must have access to American courts to challenge their detention. The ruling eliminates three attempts by the Bush administration and Congress to establish military tribunals that would handle the adjudication of terrorist cases without involving access to the civilian justice system:

The Supreme Court ruled Thursday that foreign terrorism suspects held at Guantanamo Bay have rights under the Constitution to challenge their detention in U.S. civilian courts.

The justices handed the Bush administration its third setback at the high court since 2004 over its treatment of prisoners who are being held indefinitely and without charges at the U.S. naval base in Cuba. The vote was 5-4, with the court’s liberal justices in the majority.

Justice Anthony Kennedy, writing for the court, said, “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.” …

In dissent, Chief Justice John Roberts criticized his colleagues for striking down what he called “the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.”

Justices Samuel Alito, Antonin Scalia and Clarence Thomas also dissented.

This will probably derail the hearings that had just begun at Gitmo for six members of the 9/11 conspiracy. By granting the unlawful combatants habeas corpus, the court has now eliminated the main reason for the military tribunal system — and for that matter, Gitmo itself. If the detainees can access American courts, they may as well be held on American soil.

The previous two rulings that struck down the tribunals forced the government to quickly pass laws that allowed for them. The Supreme Court has basically ruled that the Constitution applies worldwide rather than just to the US and its residents, which makes it pretty difficult to go back to the well a third time. Also, with very little time remaining in the Bush administration, they will not have enough time to push through a third attempt to address the Court’s concerns — and this ruling appears to be much broader than the two that preceded this one.

It seems absurd to apply criminal law to unlawful combatants captured during hostilities abroad. Will they require a Miranda reading, too? Do we have to bring the soldiers and Marines who captured them to the trial? In our 232-year history, when have we ever allowed that kind of access to enemy combatants not captured inside the US itself?

Update: Bear in mind that we do not yet have the full opinion, and it may be less egregious than what we have heard thus far. However, the quote from Kennedy certainly suggests an expansive ruling.

Squid Shark says in the comments that the work-around would be to classify them as POWs and be done with it. That presents a few problems, too. It eliminates the status of unlawful combatant, which then encourages all forces to eschew uniforms, legitimate state backing, etc etc. The unlawful-combatant designation and its circumscribed rights in Geneva intended to penalize those who hide among civilians for their attacks. Are we now to forego that?

Update II: The opinion can be read here. From a cursory reading, the Court says that Congress cannot act to suspend habeas corpus except through the Suspension Clause, which requires an explicit act noting invasion or rebellion. Would infiltration suffice, or does Congress even need that much reason to invoke the Suspension Clause?

Scalia’s dissent is especially scathing:

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other Constitutional protections as well). It blatantly misdescribes [sic] important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.

The Nation will live to regret what the Court has done today. I dissent.

Update III: I’ve read through both dissents, and I have to say that I’m struck by the tone of Scalia and Roberts.  Not only do they dissent, they practically accuse the majority of deliberately misreading both law and precedent, especially regarding Eisentrager.  They point out that the dissent in that case explicitly noted that the decision gave aliens in detention by American forces outside of our own sovereign territory no habeas rights at all, and yet the majority used it to apply those rights in this case.  Roberts scornfully argues that the Court “cashiered” the military tribunal system before it had a chance to show that it addressed detainee rights properly.

I’d say that the end of this session couldn’t come quickly enough for these justices.


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Comment pages: 1 8 9 10

dave742 on June 13, 2008 at 1:07 PM

Yes, it does. Except that there is a later law that says you can’t sue the any individual government person for doing their job as they see it, or Bush/Co would have been sued over the border debacle a long time ago… Sovereign Immunity?

Key is however, the Lincoln DID ignore his own Supreme Court, for a number of years.

Romeo13 on June 13, 2008 at 1:15 PM

You take a position that no defender of executive power to interpret the constitution takes. You are an extremist. That’s fine. I hope Bush follows your advice. I have no problem watching the country continue on its slide into fascism while people here defend it. It is amzingly interesting to me.

Can you explain to me why giving a certain power to an elected offical who can serve no more than eight years, and perhaps only four, is “facism”, while giving that exact same power to people who are not elected, cannot be replaced, and have lifetime tenure, is NOT fascism?

Can you?

flenser on June 13, 2008 at 1:15 PM

I wonder if that is what that darn pig wants. I know I shouldnt feed him, but hes just so loud!

Squid Shark

I think the darn pig wants you to stop posing as something you are not, and to make a token effort to say something intelligent on the topic you are allegedly discussing.

If you’re a naval officer and budding lawyer then I’m Karl Rove. You know jack about the law and no naval personnel get to spend their days commenting on blogs.

flenser on June 13, 2008 at 1:20 PM

Some people just dont quit in their stupid.

I bid you all good day. right, it was lovely to have a civil discussion with you. Romeo, it is always a pleasure.

2 hours to the job I supposedly dont have.

Squid Shark on June 13, 2008 at 1:25 PM

Squid Shark on June 13, 2008 at 1:25 PM

Be careful of the Paulbot signs running across the road.

Limerick on June 13, 2008 at 1:30 PM

Here’s a question. Suppose that tomorrow the Supreme Court makes the following announcement.
“We have noticed a new penumbra in the Constitution, and we have interpreted it to mean the following.”

“All blacks in American must be immediately placed into concentration camps, in preparation for their eventual elimination. We hold that the executive branch must implement this, and that the legislative branch must appropriate money to finance it.”

What would the reaction be? It cannot be “That would be unconstitutional”, because everyone agrees that only the Court can say what is and is not constitutional. Should such a thing be resisted? On what constitutional grounds?

flenser on June 13, 2008 at 1:34 PM

2 hours to the job I supposedly dont have.

Ahh, my tax dollars at work. You are a credit to your (imaginary) uniform.

flenser on June 13, 2008 at 1:35 PM

I bid you all good day.

I’ll miss those valuable legal insights you’ve been providing.

flenser on June 13, 2008 at 1:38 PM

Limerick on June 13, 2008 at 1:30 PM

Ha, good times. I prefer nights because there are no Paulbots out :)

I have 4 hours of class in the morning and then I work till 2200 on shift, I dont have the patience for traffic.

Squid Shark on June 13, 2008 at 1:39 PM

You take a position that no defender of executive power to interpret the constitution takes. You are an extremist.

oooooh an extremist!!! alright!!

freedom is extreme

show me in the US CONSTITUTION where the president has to follow the ruling of the supreme court, and where the supreme court has the power to decide what the constitution means!!

I hope Bush follows your advice. I have no problem watching the country continue on its slide into fascism

and what do you think is happening with this judicial tyranny??? hmmmmm?? please.

And if Chavez announces tomorrow that he does not have to follow the Venezuelan Supreme Court, I acount on you to defend him.

so its ok to people like you to have a judicial tyranny…oh yeah as long as a court says it, its OK!!! just like killing babies is constitutional

get a clue, we live in a FASCIST JUDICIAL STATE

right4life on June 13, 2008 at 1:59 PM

Truthfully we need Congress to stand up for itself. Expecting the President to stand up for Congress reminds me of back in college when I was President of the Homecoming Dance Committee and the sub-committee on decorations had one of its members (the one submitting the budget) attempt a coup with her own plans being substituted for for the committee’s decoration plans, (she simply substituted her desired purchases for the ones decided on in the committee- and was using her connections in the Student Government to get her budget approved before I saw it).

Nobody on the committee wanted to get in a confrontation though, so I was left as the President defending the decoration committee’s decisions- despite the fact I didn’t agree with decoration committee’s plan, and without any support from the committee whose authority I was defending.

It was a terrible mess.

The reason everybody is so disgusted with Congress is because Congress refuses to take responsibility for anything. Congress has not just acquiesced to usurpations of its powers by the Executive and Judicial Branches, Congress has deliberately foisted upon the other two branches its Constitutional responsibilities. In the process Congress has created a system that inevitably leads to massive corruption ans a subversion of democratic principles.

Sackett on June 13, 2008 at 2:37 PM

flenser:

Can you explain to me why giving a certain power to an elected offical who can serve no more than eight years, and perhaps only four, is “facism”, while giving that exact same power to people who are not elected, cannot be replaced, and have lifetime tenure, is NOT fascism?

In my view, one component of fascism is concentration of power. Besides all the other powers that have now been assumed by the executive, you also want the executive branch to interpret the Consitution. Having the Supreme Court interpret the COnsitution is part of separation of powers, which you don’t seem to support. Also, I think it is more appropriate to allow those trained in the law interpret legal matters instead of ex-Hollywood actors and failed businessmen.

right4life:

this judicial tyranny

I don’t view the courts interpreting laws/Constitutions/treaties/etc as tyranny. I views it as their job. If the president interpreted the Constitution, why couldn’t we talk about executive tyranny, or dictatorship. If you have an ounce of honesty in you, you know that is exactly what you would say if Chavez decided to assume the role of interpreting Venezuela’s constitution.

If Obama gets elected, will support Obama assuming the role of interpreting the Consitution? Or will your stance change iin that case?

dave742 on June 13, 2008 at 2:57 PM

“The problem is, the whole system of precedent and judicial law will come apart at the seems. If a supreme court ruling means nothing, than precedent means nothing.

Down goes the system

Squid Shark on June 13, 2008 at 8:21 AM”

No, in this case the Court did exactly what you fear. First they ruled in an area the COnstitution precluded them from ruleing in, Next they overturned a century of precident. As hard as this concept might be to accept, the Court, as a co-equal branch, is every bit as bound by the Constitution as the Congress or the President. They simply do not get to make it all up. Their decision was illegal under the Constitution and the Constitution trumps the Court.

Apparently McCain is hitting the decision hard today as is his minnie-me, Senaotr Graham.

When the dissent in a decision calls it illegal, you know the decision is not only controversial but flawed.

If the folk responsible for the rule of law, the courts, hold themselves above that rule of law, then the system of justice is already broken.

God I wish the President had some balls and would take a stand.

JIMV on June 13, 2008 at 3:11 PM

I don’t view the courts interpreting laws/Constitutions/treaties/etc as tyranny.

why am I not surprised?

I views it as their job

where did they get this ‘job’?? hmmmm?? they took it upon themselves. an act of tyranny

If the president interpreted the Constitution, why couldn’t we talk about executive tyranny, or dictatorship.

you know each president must recites the following oath, in accordance with Article II, Section I of the U.S. Constitution:

“I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States

so yes, he has to defend the constitution, unlike the supreme court, which took that power to themselvs in an act of tyranny

you just want an all-wise oligarchy to hand down rulings from sinai. you just hate freedom an democracy.

If you have an ounce of honesty in you, you know that is exactly what you would say if Chavez decided to assume the role of interpreting Venezuela’s constitution.

why do you keep talking about the venezualen constittuion??? who cares, I do not even know what it says, do you? and what relevence does it have to this discussion? we could talk about the nazi constituion for all the good it does.

If Obama gets elected, will support Obama assuming the role of interpreting the Consitution?

yeah because that is what a president is supposed to do, at least he is elected and accountable unlike those tyrannical jack-booted, black-robed thugs.

Also, I think it is more appropriate to allow those trained in the law interpret legal matters instead of ex-Hollywood actors and failed businessmen.

that ex-hollywood actor sure made people like you look like fools! and the failed businessman didn’t do too badly at that either before he lost his nerve.

right4life on June 13, 2008 at 3:12 PM

and davey, why don’t you answer me about where in the US CONSTITUTION you pretend to love, is the power given the supreme court to interpret it??

hmmmmmmm??

right4life on June 13, 2008 at 3:13 PM

God I wish the President had some balls and would take a stand.

he should just say what Andrew Jackson did..

let Kennedy enforce his ruling…

right4life on June 13, 2008 at 3:15 PM

Those court judges need drug testing because they are on crack.

tx2654 on June 13, 2008 at 3:21 PM

Having the Supreme Court interpret the COnsitution is part of separation of powers, which you don’t seem to support.

It’s part of a separation of powers which is not included in the Constitution. The Supreme Court says that they have this power. You offer no reason for believing them, but for rejecting a similar claim on the part of the President or Congress.

In my view, one component of fascism is concentration of power

Nonsense. Fascism is distinguished by unaccountable power. Hitler and Mussolini did not have to answer to anyone. Who does that most resemble, an elected official or a justice on the Supreme Court?

If Obama gets elected, will support Obama assuming the role of interpreting the Consitution? Or will your stance change iin that case?

But I’m not supporting an President getting such power. I’m just pointing out how absurd it is for you to want such power to exist. If such power is going to exist then of course I’d prefer Obama to have it. We can always get rid of him when he abuses it. We can’t do a thing about the Court, which is why the other branches like to defer to it.

flenser on June 13, 2008 at 3:21 PM

“JIMV:
Blast it, does no one know the law here. Or the Constitution. The law being considered is the Military Commissions Act of 2006, passed by Congress.
The Supreme Court decided the constitutionality of the MCA, which is their job. Simply passing the MCA does not automatically make it constitutional. The court decision regarded constitutionality:”

No, the court has no jurisdiction in this issue. They ignored a Constitutional limit on their power. The Court only has the force of law when that court acts IAW the Constitution. When they assume powers they simply do not have, the exceed that limit and their resulting decision is not legal.

“The primary issue determining whether the GITMO detainees are entitled to challenge their detention after the passage of the Detainee Treatment Act of 2005 and Military Commissions Act of 2006 is whether the detainees have a constitutional right to do so.”
“The practical effect of [the MCA provisions that you cite] is ‘to permanently deny aliens the right to challenge before an independent legal body the reasons, if any, for their imprisonment.’ As there can be no realistic argument that the MCA does not apply to the GITMO detainees’ habeas petitions, the stage is set for the Court’s resolution of whether the GITMO detainees have a constitutional right to challenge their detention, absent statutory authorization.”
Deva Solomon, William Mitchell Law Review, 34 Wm. Mitchell L. Rev. 5155, 2008
“Special Issue: Journal of the National Security Forum: Part III: Can Government Indefinitely Detain Individuals Accused of Being Enemy Combatants?”

This does not address the Article III section 2 problem. It defines what it considers the issue of the law to be but ignores the restriction on the Court to consider it. Too many lawyers believe anything at all is subject to litigation. When it is trivial we call it a nuisance suit, When it comes from the Supreme Court it is an illegal opinion. The court had no jurisdiction….the decision was illegal.

“The MCA did not decide the Constitutionality of its own text. The Supreme Court is in charge of that. They found that “§7 of the Military Commissions Act of 2006 (MCA), 28
U. S. C. A. §2241(e) (Supp. 2007), operates as an unconstitutional suspension of the writ.”
The key issue was the interpretation of Johnson v. Eisentrager.”
Dave742 on June 13, 2008 at 10:57 AM”

This is all based on the idea that the provisions of the Constitution Article III section 2 has no legal power over the court. Why do you believe that?

JIMV on June 13, 2008 at 3:24 PM

The US Constitution, Article III, Section 1 and 2.

Judicial powers

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

Section 2 – Trial by Jury, Original Jurisdiction, Jury Trials

(The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.) (This section in parentheses is modified by the 11th Amendment.)

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Nothing there about the Court having the sole power to speak on the meaning of the Constitution.

flenser on June 13, 2008 at 3:25 PM

“Nothing there about the Court having the sole power to speak on the meaning of the Constitution.
flenser on June 13, 2008 at 3:25 PM”

They are also squeezing their eyes tightly shut and refusing to consider this bit:

“In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

Congress made a specific exception and regulation excluding the Court from reviewing this yet they did it anyway. Their resulting opinion was, therefore, illegal and has no effect under the law unless the Congress whose power was stepped on and the President who’s obedience to the opinion will cost us lives and turn all future wars into legal jokes, obey.

Congress is useless and has been for years but the President has nothing to lose by doing the right thing.

JIMV on June 13, 2008 at 3:40 PM

Breaking: Supreme Court says Gitmo detainees must have access to US courts Update: Scalia: “The Nation will live to regret what the Court has done today.”
Jun 12, 2008 10:45 AM by Ed Morrissey
911 Comments » | 10 Trackbacks

weird
.

I FEAR FOR MY COUNTRY TODAY!

shooter on June 13, 2008 at 3:44 PM

Congress made a specific exception and regulation excluding the Court from reviewing this yet they did it anyway.

anything that threatens the power of those jack-robed thugs is unconstitutional don’t ya know?

Congress is useless and has been for years but the President has nothing to lose by doing the right thing.

would that bush had the guts…now if he standing up to those racist bigoted anti-illegal immigration types, he would in a heartbeat….

right4life on June 13, 2008 at 3:54 PM

jack-robed

sorry….black-robed, jack-booted…

right4life on June 13, 2008 at 3:54 PM

I am not a lawyer, so I will cut and paste. Here is the argument for judicial review in the judiciary:

“The Constitution does not expressly grant the power of judicial review. Indeed, the Constitution does not expressly grant to any branch of the federal government, including the courts, the power to interpret the Constitution. The power of judicial review- the power of federal courts to refuse to give legal effect to the action of other government actors because those actions are inconsistent with the Constitution is implied from other provisions of the Constitution.
With respect to judicial review of federal statutes, the classic arguments justifying this implied power are found in Marbury v. Madison and The Federalist No. 78. Enough has been written describing in detail the Marbury and The Federalist No. 78 justifications for judicial review that little purpose would be served in another detailed explanation of those justifications. Therefore, I will briefly sketch out the basic argument of those two sources supporting the implication of a power of judicial review.
Marbury required the Court to decide whether it had original jurisdiction to grant a writ of mandamus ordering Secretary of State James Madison to deliver a commission of office to several plaintiffs, including Marbury, who had been appointed to serve as justices of the peace for the District of Columbia and Alexandria. The Court interpreted section 13 of the Judiciary Act of 1789 to grant the Supreme Court original jurisdiction to issue writs of mandamus to officers of the United States-such as the Secretary of State. But according to the Court, section 13, as interpreted, purported to grant jurisdiction to the Court that was not within the judicial power of the United States set forth in Article III. The Court had to decide whether to follow the statute and accept jurisdiction or follow the Constitution and dismiss for lack of jurisdiction. To dismiss for lack of jurisdiction would require the Court to disregard a statute enacted by Congress.
The Court chose to disregard the statute and held that original jurisdiction did not exist to grant the writ of mandamus against Madison. But why did the Court disregard the statute? What, in the Court’s view, gave it the authority to refuse to follow a duly-enacted statute? These were not just idle questions. That courts would refuse to apply statutes they thought inconsistent with the Constitution was not a foregone conclusion; other countries with written constitutions do not allow (or historically have not allowed) the type of judicial review recognized in Marbury.
The argument for judicial review begins by recognizing that federal courts exist to decide cases involving real disputes between litigants over alleged violation of legal rights. In deciding cases, courts are required to apply law to facts to determine if legal rights exist and if so, whether they have been violated. To do this, judges must know what the law is. Because a law’s meaning is not always (or even often) obvious on its face, to know what the law is often requires the judge to interpret the law. “Those who apply the rule to particular cases, must of necessity expound and interpret that rule.”
All this is eminently logical, but it still does not lead inexorably to a power of judicial review. While true that courts must apply law, a statute passed by Congress pursuant to the procedures specified in the Constitution (passage by both Houses and presentment to and signature of the President, or override of the President’s veto by two-thirds majorities in each house) is also, at least on its face, law. The only move that could lead to judicial review is to treat the Constitution not only as law, but as law that is superior to regular (statutory) law.
This is precisely the move that The Federalist No. 78 and Marbury made. Judges are free to disregard a statute when it conflicts with the Constitution because the Constitution is superior to ordinary statutes. When a statute conflicts with the Constitution, the statute must give way. The power of judicial review, then, is really nothing more than a simple choice-of-law rule.
The primary objection to judicial review has historically been that it is undemocratic (or, perhaps more accurately, anti-republican) in that it allows unelected, life-tenured judges to ignore statutes passed by Congress and apply their own interpretation of the Constitution. This is a serious objection. The founding generation of Americans considered self-government and popular sovereignty to be “paramount” concerns. The notion of judicial review by unelected, life-tenured judges raised a real concern of judicial supremacy: “vesting [of] controlling power in an appointive aristocracy.” As Michael Paulsen has noted, such a vesting would be “contrary to the whole idea of republican government. [It] would have been a knock-down argument against ratification.”
The Constitution bears out this concern about self-government by placing primary lawmaking power in a legislature comprised of representatives of the people and states, whose governments are themselves established and controlled by the people of those states. While this lawmaking authority is subject to checks and balances (e.g., the presidential veto), by placing lawmaking power in the people’s representatives, the Constitution places that power in the people’s control. Ultimately the people are sovereign.”
Capital University Law Review
Fall, 2005
34 Cap. U.L. Rev. 153
ARTICLE: DO AS WE SAY AND NOT (NECESSARILY) AS WE DO: THE CONSTITUTION, FEDERALISM, AND THE SUPREME COURT’S EXERCISE OF JUDICIAL POWER
NAME: John Tuskey*

As for judicial tyranny, there is a check for that:

“the generally accepted legal view derived from the plain language of Article V is that the Court has no authority to question the substance of constitutional amendments. If the procedural requirements of Article V are properly followed, the amendment is valid. n46 The reason for this is simple. The amendment process is the sole check on judicial power to interpret the Constitution. Thus, if the judiciary could review the substance of constitutional amendments, it would wield unchecked ultimate power”
American University Law Review
August, 2005
54 Am. U.L. Rev. 1487
ARTICLE: THE FEDERAL MARRIAGE AMENDMENT: TO PROTECT THE SANCTITY OF MARRIAGE OR DESTROY CONSTITUTIONAL DEMOCRACY?
NAME: Joan Schaffner

If you think the Supreme Court decision is a bad one, start the ammendment process going and change it.

dave742 on June 13, 2008 at 4:19 PM

The Constitution does not expressly grant the power of judicial review. Indeed, the Constitution does not expressly grant to any branch of the federal government, including the courts, the power to interpret the Constitution.

bingo.

constitutional amendments are meaningless, because the supreme court gets to interpret what they mean…like they did in kelo…which gutted the 5th.

we live in a fascist judicial tyranny

right4life on June 13, 2008 at 4:25 PM

right4life:

bingo

Yes, the Constitution does not expressly grant the power of judicial review to the Supreme Court. However, there is over 200 years of history that occured since then, and this history has resulted in the Supreme Court having this power. This is “eminently logical”, at least to most people. Most people would not want to live in a country where ex-Hollywood actors are the sole judges of Constitutionality.

we live in a fascist judicial tyranny

If that’s you’re interpretation of our system, I suggest you overthrow the government. I will join you, for different reasons. Once our goal is accomplished, though, there might be a power struggle between the two of us, so watch your back.

dave742 on June 13, 2008 at 4:35 PM

Scalia’s warning made me think of this great poem. Exit question–who, in the current political cast of characters is Ralph the Rover?

http://www.poetsgraves.co.uk/Classic%20Poems/Southey/the_inchcape_rock.htm

smellthecoffee on June 13, 2008 at 4:40 PM

This is “eminently logical”, at least to most people.

it wasn’t to Jefferson, but hey what did he know?

Most people would not want to live in a country where ex-Hollywood actors are the sole judges of

why don’t you leave then? how did you withstand the reagan terror??? I’d much rather have that ex-hollywood actor interpret the constitution than a nazi like ginzberg or souter. the country would also be much better off without fascists and their lackeys.

right4life on June 13, 2008 at 4:48 PM

Yes, the Constitution does not expressly grant the power of judicial review to the Supreme Court.

Nice of you to admit it.

However, there is over 200 years of history that occured since then

And for most of that 200 years, the court has not claimed to be the senior branch of government.

this history has resulted in the Supreme Court having this power.

No, history has done nothing of the sort. The court has claimed this power. Why should not Congress or the President claim the same power?

Most people would not want to live in a country where ex-Hollywood actors are the sole judges of Constitutionality.

Sez who? You don’t offer the slightest justification for confering this awesome power on lawyers, of all people. If we are going to give it to anyone, I’d prefer actors have it. Or electricians. Or auto mechanics. Anyone but lawyers.

flenser on June 13, 2008 at 5:24 PM

I am not a lawyer, so I will cut and paste.

Why not just say “I’m an idiot”? Did you read and understand what you pasted?

The founding generation of Americans considered self-government and popular sovereignty to be “paramount” concerns. The notion of judicial review by unelected, life-tenured judges raised a real concern of judicial supremacy: “vesting [of] controlling power in an appointive aristocracy.”

No kidding. It makes self government impossible.

flenser on June 13, 2008 at 5:28 PM

I do not believe the issue is Judicial Review. Although there is no real mention of it in the Constitution, it has been a part of the legal system for 200 years. The problem in this case is first, ignoring restrictions in Article III precluding this specific review, and second, overturning a century of precident without providing any sort of a real legal justification. As Chief Justice Roberts noted, the court did not act to protect terrorists but to extend judicial power into new corners of the law and earth.

Both are illegal.

JIMV on June 13, 2008 at 5:30 PM

As for judicial tyranny, there is a check for that

Constitutional amendments. And who gets to “interpet” the constitutional amendments, according to you?

Who watches the watchmen?

flenser on June 13, 2008 at 5:31 PM

Since dave never answered this question, I’ll ask it again.

Suppose that tomorrow the Supreme Court makes the following announcement.

“We have noticed a new penumbra in the Constitution, and we have interpreted it to mean the following.”

“All blacks in American must be immediately placed into concentration camps, in preparation for their eventual elimination. We hold that the executive branch must implement this, and that the legislative branch must appropriate money to finance it.”

What would the reaction be? It cannot be “That would be unconstitutional”, because you insist that only the Court can say what is and is not constitutional. Should such a thing be resisted? On what constitutional grounds?

flenser on June 13, 2008 at 5:34 PM

Remember, these are the same lefties who cried for years when the ‘partisan’ Supreme Court overturned the Partisan Florida Supreme Court in Bush v Gore…

It is only judicial activism when it afects them and for some reason, they seem to believe they are immuned from a conservative court playing fast an loose with their rights.

JIMV on June 13, 2008 at 5:57 PM

Okay, I’ll rise to bait. I really want to see a thread with 1000+ comments on it here that does not revolve around Creationism. It will reaffirm my belief that HA is political blog and not a religion blog.

Since dave never answered this question, I’ll ask it again.

Suppose that tomorrow the Supreme Court makes the following announcement.

“We have noticed a new penumbra in the Constitution, and we have interpreted it to mean the following.”

“All blacks in American must be immediately placed into concentration camps, in preparation for their eventual elimination. We hold that the executive branch must implement this, and that the legislative branch must appropriate money to finance it.”

What would the reaction be? It cannot be “That would be unconstitutional”, because you insist that only the Court can say what is and is not constitutional. Should such a thing be resisted? On what constitutional grounds?

flenser on June 13, 2008 at 5:34 PM

There would be a standing issue, there would be a ripeness issue, there would be a action in controversy issue, you would need litigants, you would need etc…
This argument reminds me of the old arguments and hypotheticals about the infallibility of the Pope spoken by those that don’t understand the concept of ex cathedra.

This decision deals with something that is within the power of the Courts. The Issue dealt with in this case is whether a court may hear a habeas petition of a detainee in Guantanomo Bay. The Supreme Court is within its powers to direct lesser courts in the Federal judiciary to hear Habeas petitions. The Supreme Court is the supreme authority for the federal judiciary, therefore it seems to be within its powers to decide whether or not its subordinate courts should hear habeas petitions.
The rub comes later, if after hearing the habeas petition the district court in question can order the executive to either a) accuse the detainee of some action that warrants detention, b) designate the detainee as a POW to be held till the end of hostilities, or c) discontinue detention of the detainee. The issue becomes then whether or not the executive will follow the directive of a district court.

New_Jersey_Buckeye on June 13, 2008 at 6:08 PM

Flenser:

“Why should not Congress or the President claim the same power?”

Why don’t I?

If you think that Bush should have the power to interpret the Constitution, I think he should at least be able to voice his opinion. I am sure he knows the issue pretty well in order to make such a momentous decision. So let’s have Bush debate this Constitutional issue with the majority judges from the Supreme Court. Let’s have this occur on live TV. If Bush should make this decision, surely you agree he must know the legal issues well enough to make a convincing argument. Let’s have this debate. It would make great TV. At least for me. It would be the comedy of the century.

“Did you read and understand what you pasted?”

I think so. After the part that you quote, there is a section that starts out “The Constitution bears out this concern…” Please read that.

“And who gets to ‘interpet’ the constitutional amendments, according to you?”

The Supreme Court does not, and they never have. Amendments usually pertain to specific issues and are pretty clear. I think you can write an amendment that very clearly overturns this case. Write it and start organizing. Be part of your government.

“Since dave never answered this question, I’ll ask it again.”

Your stupid question involves the Supreme Court writing a law, which does not happen. If a case containing the question you describe actually made it through the entire court system in order to appear in front of the Supreme Court in order to judge its Constitutionality, I think the Supreme Court would be the least of our problems. But let’s say the Supreme Court upheld the decision you describe. I think the decision would be so outrageous in the eyes of all Americans that some type of judicial emergency would be declared where a new Supreme Court could be appointed. I think this would have the full support of the American people. If you think the present case falls into this category, I suggest you write president Bush and suggeest he do exactly that, declare a judicial emergency and remove the entire Supreme Court and begin a process to appoint a new one. I would love it if that would happen. In this case, however, I do not think this action by Bush would have the support of the American people. I think your hypothetical is in a different category than the case being discussed here. Maybe not to an extremist, I guess.

dave742 on June 13, 2008 at 6:18 PM

This decision deals with something that is within the power of the Courts. The Issue dealt with in this case is whether a court may hear a habeas petition of a detainee in Guantanomo Bay. The Supreme Court is within its powers to direct lesser courts in the Federal judiciary to hear Habeas petitions. The Supreme Court is the supreme authority for the federal judiciary, therefore it seems to be within its powers to decide whether or not its subordinate courts should hear habeas petitions.

Except the constitution gives the Congress the power to limit the scope of this review, which it did. The court ignored it.

JIMV on June 13, 2008 at 6:31 PM

The key issue was the interpretation of Johnson v. Eisentrager.

dave742 on June 13, 2008 at 10:57 AM

After looking through the opinion for Munaf v. Geren I’ve concluded the issue was sovereignty, which the Supreme Court used to extend their reach to Guantanamo.

I would ask the learned legal scholars to explain why the Uniform Code of Military Justice, the military tribunals, and the Military Commissions Act of 2006 was not good enough for the Supreme Court?

rockhauler on June 13, 2008 at 6:32 PM

flenser:

“Why should not Congress or the President claim the same power?”

As for Congress, I don’t think it’s a good idea for the same people to write the laws and decide their Constitutionality. Of course they would always be Constitutional, and there would be no check on power.

As for the president:
I think Constitutionality decisions are the most important decisions the Supreme Court makes. If the president should have that power, why shouldn’t he also assume all the other Supreme Court powers? Maybe the president should be like Caesar, and all legal issues come to him for a decision, which he himself makes and afterwards seals the decision with a raised stamp from his emperor ring. That would be cool. Let’s get rid of the Supreme Court altogether, and tear up that nasty old Constitution.

dave742 on June 13, 2008 at 6:36 PM

Let’s get rid of the Supreme Court altogether, and tear up that nasty old Constitution.

dave742 on June 13, 2008 at 6:36 PM

If you want to tear up the Constitution, just keep the Supreme Court around, and fill it with liberals.

They’ve already done a pretty good job of trashing it. A Constitutional right to anal sex. How absolutely absurd and embarrassing.

misterpeasea on June 13, 2008 at 7:18 PM

If you think that Bush should have the power to interpret the Constitution

the president is explicity charged to uphold the constitution, unlike the courts. but the constitution doesn’t matter to fascist lackeys like you. all you care about is the results, which is the advance of a socialist tyranny.

least for me. It would be the comedy of the century.

yeah he’d make people like you look like the morons you are.

The Supreme Court does not, and they never have. Amendments usually pertain to specific issues and are pretty clear.

every hear of the kelo decision I mean duhhhhhhh the supreme fascists make it mean whatever they want to mean duhhhhhhh

you’ve proven that an ex-hollywood actor is much smarter than you or that egg-head harvard messiah….as Orwell said about people like you:

“One has to belong to the intelligentsia to believe things like that: no ordinary man could be such a fool.”

right4life on June 13, 2008 at 8:29 PM

That would be cool. Let’s get rid of the Supreme Court altogether, and tear up that nasty old Constitution

the supreme nazis already have.

right4life on June 13, 2008 at 8:31 PM

Your stupid question involves the Supreme Court writing a law, which does not happen.

I’m speechless. And that rarely happens.

flenser on June 13, 2008 at 8:38 PM

“And who gets to ‘interpet’ the constitutional amendments, according to you?”

The Supreme Court does not, and they never have.

Sweet Jesus, do you know ANTHING about the subject we are discussing? Do you actually mean to tell me that the Supreme Court never makes rulings on the the First Amendment? The Fourth? The Fifth? The Second?

My four year old nephew knows more about this subject than you do. All you know is that you don’t like the evil Rethuglicans.

flenser on June 13, 2008 at 8:42 PM

jack-robed
sorry….black-robed, jack-booted…

right4life on June 13, 2008 at 3:54 PM

I thought it was a nice touch. :)

jerrytbg on June 13, 2008 at 10:02 PM

flenser on June 13, 2008 at 8:42 PM

Take a deeeep breath!! Unbelievable!!

jerrytbg on June 13, 2008 at 10:05 PM

flenser:

Supreme Court never makes rulings on the the First Amendment? The Fourth? The Fifth? The Second?

Sorry, honey. I’m used to thinkig of the bill of rights as part of the Constitution. I think they appeared soon after. It’s hard to keep pace with you geniuses. PLease put up with me.

right4life:

yeah he’d make people like you look like the morons you are

Well, I guess to you Bush is an intellectual. Impressive.

dave742 on June 13, 2008 at 10:15 PM

flenser:

Supreme Court never makes rulings on the the First Amendment? The Fourth? The Fifth? The Second

As for the balce of amendments after the bill of rights, I think the are pretty self-explanatory. Two term limits? Voting age of 18? Any questions? Do you think you would be able to write an amendment like that ovreturning this case that is just as simple? I think you can. I have faith in you.

dave742 on June 13, 2008 at 10:19 PM

I’m loaded. Sorry for the typing issues.

dave742 on June 13, 2008 at 10:20 PM

I’m loaded. Sorry for the typing issues.

dave742 on June 13, 2008 at 10:20 PM

OOOOOK

jerrytbg on June 13, 2008 at 10:26 PM

JIMV:

Blast it, does no one know the law here. Or the Constitution. The law being considered is the Military Commissions Act of 2006, passed by Congress.

The Supreme Court decided the constitutionality of the MCA, which is their job. Simply passing the MCA does not automatically make it constitutional. The court decision regarded constitutionality:
…..
dave742 on June 13, 2008 at 10:57 AM

Show me where the Constitution authorizes the Supreme Court to determine the Constitutionality of the laws passed by Congress, or of the acts of the President.

Many people think the Supreme Court has that power, but they have no more power than the Constitution gives them. And the Constitution does not give them that power.

In other words, you are dead wrong.

It’s understandable, though lamentable, that you don’t know better. But continued ignorance is willful ignorance.

theregoestheneighborhood on June 13, 2008 at 11:01 PM

Here is Fred Thompson on the issue:

In reading the majority opinion I am struck by the utter waste that is involved here. No, not the waste of military resources and human life, although such a result is tragically obvious. I refer to the waste of all those years these justices spent in law school studying how adherence to legal precedent is the bedrock of the rule of law, when it turns out, all they really needed was a Pew poll, a subscription to the New York Times, and the latest edition of “How to Make War for Dummies.”

http://www.townhall.com/Columnists/FredThompson/2008/06/13/a_supreme_error?page=full&comments=true

JIMV on June 13, 2008 at 11:24 PM

I do not believe the issue is Judicial Review. Although there is no real mention of it in the Constitution, it has been a part of the legal system for 200 years. The problem in this case is first, ignoring restrictions in Article III precluding this specific review, and second, overturning a century of precident without providing any sort of a real legal justification. As Chief Justice Roberts noted, the court did not act to protect terrorists but to extend judicial power into new corners of the law and earth.

Both are illegal.

JIMV on June 13, 2008 at 5:30 PM

I think the problem IS Judicial Review. To be precise, I think the problem is that the Supreme Court’s questionable claim of Judicial Review is completely without constraint. The Supreme Court has claimed the role of Final Authority on the Constitution, and there is no check or balance to constrain them.

Clearly, as you point out, Congress specifically removed from the Supreme Court or any other federal court except the D.C. Court of Appeals any power to review habeas corpus for the enemy combatants at Gitmo. But because the Supreme Court [thinks it] is the Final Authority on the Constitutionality of all laws, not even an explicitly Constitutional law restricting the role of the federal courts as Congress unquestionably is authorized by the Constitution to do makes a bit of difference. They just declared the law restricting them is unconstitutional.

And just like that, they can ignore the law.

Not that it would be a resolution I would hope for, but by specifically ignoring that Congress restricted their jurisdiction, the Supreme Court itself has become a lawbreaker, and each of these five justices could be conceivably impeached.

Not that Congress would dare to do it….

theregoestheneighborhood on June 13, 2008 at 11:32 PM

theregoestheneighborhood on June 13, 2008 at 11:32 PM

But they should and can’t the President have them arrested or at least ignore the ruling?

jerrytbg on June 13, 2008 at 11:40 PM

Not that it would be a resolution I would hope for, but by specifically ignoring that Congress restricted their jurisdiction, the Supreme Court itself has become a lawbreaker, and each of these five justices could be conceivably impeached.

As Jefferson noted “”We have… [required] a vote of two-thirds in one of the Houses for removing a judge; a vote so impossible where any defense is made before men of ordinary prejudices and passions, that our judges are effectually independent of the nation. But this ought not to be.” –Thomas Jefferson: Autobiography, 1821. ME 1:120″

As Andy Jackson found, the only way to fix a court out of control is to ignore their rulings, something out gutless politicians today would never, ever do.

JIMV on June 13, 2008 at 11:42 PM

I’m loaded. Sorry for the typing issues.

The typing issues are not the problem. The thinking issues are. You’re a total idiot.

As for the balce of amendments after the bill of rights, I think the are pretty self-explanatory. Two term limits? Voting age of 18? Any questions?

I’d like to blame this on booze, but you were writing the same sort of junk earlier today. Pot?

flenser on June 14, 2008 at 12:46 AM

the Supreme Court itself has become a lawbreaker, and each of these five justices could be conceivably impeached.

They are expert judges of the political scene. They know what they can get away with. They don’t pass any law, I mean, “interpet the constitution”, unless they know that there are enough people in the Senate to watch their back.

flenser on June 14, 2008 at 12:49 AM

I’m used to thinkig of the bill of rights as part of the Constitution.

All Constitutional Amendments are part of the Constitution.

Let me know if there are any other bits of high school civics I can help you out with.

flenser on June 14, 2008 at 12:52 AM

Theregoestheneighborhood:

Show me where the Constitution authorizes the Supreme Court…

We’ve been throught that already. Read the thread.

There is no check or balance to constrain them

Yes there is. It is called amendments. Write an amendment that reverses this decision and go out there and get the votes to get it passed.

flenser:

All Constitutional Amendments are part of the Constitution.

Yes, honey. Thank you.
I believe you know what I was getting at. When the criticisms fall to this level, I know you have nothing of substance left to say. I guess we will meet again.

dave742 on June 14, 2008 at 8:24 AM

Several commenters have made the statement that the High Court is acting in a Fascist or tyrannical manner, yet when I suggest that appointees to the Court be chosen by legal rather than political means, I am told that it would cause a corruption of power through an oligarchical tyranny.

What!!

OldEnglish on June 14, 2008 at 9:15 AM

Well, I guess to you Bush is an intellectual. Impressive.

dave742 on June 13, 2008 at 10:15 PM

just curious, do you think your associates degree from a local junior college is the same as a Yale MBA??

right4life on June 14, 2008 at 10:57 AM

Several commenters have made the statement that the High Court is acting in a Fascist or tyrannical manner, yet when I suggest that appointees to the Court be chosen by legal rather than political means, I am told that it would cause a corruption of power through an oligarchical tyranny.

What!!

OldEnglish

What?, indeed.

How does chosing justices by “legal” rather than “political” means do anything about the fact that they are unelected and unaccountable? In other words, that they are tyrants?

(They are currently chosen by “legal” means. I think you meant something different.)

flenser on June 14, 2008 at 3:27 PM

dave

I believe you know what I was getting at.

No, I don’t. What you seem to have meant was that, in your mind, the later amendments to the Constitution were somehow different to the earlier ones. If that’s what you were trying to say then you really need to stop talking and exposing yourself as an imbecile.

I guess we will meet again

Unless they ban you for abject stupidity.

flenser on June 14, 2008 at 3:32 PM

(They are currently chosen by “legal” means. I think you meant something different.)

flenser on June 14, 2008 at 3:27 PM

You’re right. In my original post I suggested appointment by their peers. Sorry for the confusion. My point being that, since we have a tyranny anyway, why not one formed by the Legal Profession, rather than one by partisan politics.

Can’t be any worse, can it?

OldEnglish on June 14, 2008 at 5:55 PM

Theregoestheneighborhood:

Show me where the Constitution authorizes the Supreme Court…

We’ve been throught that already. Read the thread.

I did read the thread. You never showed where the Constitution authorized the Supreme Court to be the interpreter of the Constitution.

Because it’s not there.

You did do a length cut-and-paste of the history of judicial review, but once again, the entire history of judicial review that you yourself posted didn’t show where it was authorized by the Constitution.

Don’t bother saying, “Read the thread,” as if you had answered the question previously.

There is no check or balance to constrain them

Yes there is. It is called amendments. Write an amendment that reverses this decision and go out there and get the votes to get it passed.
….
dave742 on June 14, 2008 at 8:24 AM

The Supreme Court just ignored the Constitutional provisions allowing Congress to restrict their jurisdiction. They can just as easily interpret any Constitutional Amendment as conflicting with other Constitutional provisions and refuse to honor it.

Think it wouldn’t happen?

When McCain Feingold restricted political speech contrary to the First Amendment, the Supreme Court ignored the First Amendment in the interests of avoiding the appearance of corruption in politics
When the Florida Supreme Court was confronted with a Florida Constitutional Amendment overwhelmingly approved by popular vote and according to the valid amendment process in Florida, they overturned the law on the basis that the people who voted for it didn’t really understand what they were voting for. Before Friday, I would have thought the U.S. Supreme Court was above that sort of thing, but clearly they are not.

Judicial review as used by the Supreme Court allows them to overturn any law Congress makes. It allows them to stick their nose into military matters and the treatment of enemy combatants, and declare they must have a trial as if they were simply accused of a crime. It allows them to ignore the fact that only the President has jurisdiction over over the military.

Or is separation of powers only to be desired when the Supreme Court is the one restricting the power of the other two branches of government?

theregoestheneighborhood on June 14, 2008 at 8:16 PM

My point being that, since we have a tyranny anyway, why not one formed by the Legal Profession, rather than one by partisan politics.

Or we could do away with tyranny altogether and try having the sort of system the people who wrote the Constitution envisaged. Any objection to that?

flenser on June 14, 2008 at 11:24 PM

Though the military will never quit until told to do so, I have to ask this question:
“Why should a man, however valorous, stand and die while right and left, fore and rear, his fellows deserted him?”
– From Steven Pressfield’s “Gates of Fire
If our country is no longer with the military in this fight, as evidenced by two of three branches of government, then what’s the point? But then again, my mission in life right now is to prove both of those branches wrong, to prove wrong the weaklings of our government, and defeat this enemy, the same enemy Leonidas fought.
“First then, no matter what, the Spartans Americans will never accept your terms. This would reduce Greece the United States to slavery. They are sure to join battle with you even if all the rest of the Greeks free world surrendered to you. As for Spartan American numbers, do not ask how many or few they are, hoping for them to surrender. For if a thousand of them should take the field, they will meet you in battle, and so will any other number, whether it is less than this, or more.”

Send_Me on June 15, 2008 at 12:32 AM

Send_Me on June 15, 2008 at 12:32 AM

I share your passion. After 9/11 I prayed over what God wanted me to do, how could I serve Him in this fight? He sent me (of all places) to law school…you don’t know me, so you don’t know how funny it is that this is how it’s working out, and how He cleared every obstacle once I took a step of faith outside my comfort zone in obedience. Anyway, my point is (rambling here I know…) that He is raising up His own army, and we all must do our part. Thank you for being willing to be sent.

JustTruth101 on June 15, 2008 at 1:09 AM

just curious, do you think your associates degree from a local junior college is the same as a Yale MBA??

right4life on June 14, 2008 at 10:57 AM

G. W. has an MBA from Harvard. Not too shabby.
And flew (accident free) a supersonic interceptor that had a high accident rate.

McCain had 5 accidents – only 2 his fault.

Gore flunked out of two different graduate schools.

G. W. may have trouble speaking, but not flying nor graduating.

fred5678 on June 15, 2008 at 2:36 AM

Will this decision affect how our soldiers treat enemy combatants during future engagements??

“Shoot to kill, no prisoners!!!”

fred5678 on June 15, 2008 at 2:38 AM

Any objection to that?

flenser on June 14, 2008 at 11:24 PM

No. None at all. Will never happen though – not while pandering to the lowest common denominator (Democracy).

OldEnglish on June 15, 2008 at 5:02 AM

“Shoot to kill, no prisoners!!!”

fred5678 on June 15, 2008 at 2:38 AM

See previous comments.

Send_Me on June 15, 2008 at 10:22 AM

No. None at all. Will never happen though – not while pandering to the lowest common denominator (Democracy).

The Founders created a democratic Republic in which all power was vested in “the People”. So your contempt for democracy does you no credit. The alternative to rule by the many is rule by the few, aka tyranny. America today suffers from many ills. A surfit of democracy is not one of them.

It’s a mystery to me how you can acknowledge that the court wields unaccountable power, and conclude that the solution is not less unaccountable power, but more of it.

I don’t like being ruled by the judges our legislatures give us. I’d like even less being ruled by the judges the ABA would give us.

flenser on June 15, 2008 at 4:11 PM

flenser on June 15, 2008 at 4:11 PM

My contempt for Democracy is based upon the level of intelligence to be found among the majority of people. I do not wish to be ruled by those who can barely sign their own name, let alone run their own lives.

As for the Supreme Court, since it seems that we must have one, I would prefer consistency of purpose. Politics seeks to install an ideology that is in tune with a particular Party’s agenda, even if it means changing/trashing the foundation document in order to achieve this. If said document were under the purview and protection of a select group, devoid of politics, this would not happen. In this case, the document would be the tyrant, not the group.

In the end, The Law is the biggest tyrant of all, since it governs us all.

OldEnglish on June 15, 2008 at 7:47 PM

In the end, The Law is the biggest tyrant of all, since it governs us all.
OldEnglish on June 15, 2008 at 7:47 PM

In a sense, you sound like a New Testament theologian. The law cannot cover everything, but legislators try to accomplish this by enacting more laws, which removes liberty from the many to rein in the few, hence the problem with legalism. Adams said, “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” I’d argue that it’s not our Constitution that is the problem, but rather the American people. I agree with the Scottish political thinker, Andrew Fletcher, who said, “Give me the making of the songs of a nation, and I care not who writes its laws.” Look at our culture, our music, our values, and you’ll see who we are as a people. If people were perfect, we’d need no law. With that in mind, I’d challenge you to show me a better system of government than our own.

Send_Me on June 15, 2008 at 8:43 PM

Send_Me on June 15, 2008 at 8:43 PM

Your point about the problem lying with the people backs up my assertion that “the basics” should not be interfered by “the people”, but should remain sacrosanct. The form of government implemented in the US is probably the best on this planet, but, it is constantly being eroded by its own people moving more and more to the left in a series of changes to the moral basics of life.

My suggestion that appointment to the Supreme Court be taken out of the hands of “changeable” politicians is an attempt to create a more stable system of law which, although made for the lawless, should be a comfort to the lawful, rather than a tribulation.

OldEnglish on June 15, 2008 at 9:18 PM

My suggestion that appointment to the Supreme Court be taken out of the hands of “changeable” politicians is an attempt to create a more stable system of law which, although made for the lawless, should be a comfort to the lawful, rather than a tribulation.
OldEnglish on June 15, 2008 at 9:18 PM

So you’re implying that others from the legal profession should choose the supreme court judges?
I have, perhaps, a more feasible solution. Since the judges are recommended for appointment by the POTUS, and approved by Congress, why not focus more on Congressional elections? The obvious ineptness of the Senate in legal matters during the Alito and Roberts’ hearings was self-evident in their lack of intelligent questions. As a response, I’d say we should repeal the 17th Amendment, hence giving the States control of their own Senators again. This would require voters pay more attention to local and state politics, which gets pushed to the wayside very quickly. This would promote more accountability, hence making our system work and prevent corruption and incompetence. Under the old system, if a Senator acted out of line with his constituents, then the people could put pressure on their State Legislators, who would then pressure the Senator with threats of recalling him.

Send_Me on June 15, 2008 at 9:39 PM

Send_Me on June 15, 2008 at 9:39 PM

Your suggestion is sound, in theory, but I still have a problem with the actualities of asking “The People” to be more involved at a local level. True, people should be involved, but few bother to venture beyond the usual sound-bytes, slogans, and slurs. I get the impression that, at an ever increasing rate, people are becoming less and less interested in stability, and more desirous of instant fixes that do not take into consideration the longer term effects.

Thinking people look for stability in life, and a system that allows for that must include a stable legal code.

OldEnglish on June 15, 2008 at 9:56 PM

True, people should be involved, but few bother to venture beyond the usual sound-bytes, slogans, and slurs.

The Closing of the American Mind” by Allan Bloom
The Death of Satan” by Andrew Delblanco
The Death of Common Sense: How Law is Suffocating America

Send_Me on June 15, 2008 at 10:31 PM

Send_Me on June 15, 2008 at 10:31 PM

Thank you very much for the links. I particularly like the sound of No:3. I shall peruse them as soon as I am free.

OldEnglish on June 15, 2008 at 10:39 PM

My suggestion that appointment to the Supreme Court be taken out of the hands of “changeable” politicians is an attempt to create a more stable system of law

The people you want to hand it over to are far more radical and dangerous than “the People”. It was the sort of people you want to give more power to who gave us Roe and this current ruling. The legal profession are the problem, not the solution.

Spend some time on the law blogs and see how those people think. It’s sobering, even frightening. Read “Bench Memos” at National Review.

flenser on June 16, 2008 at 6:27 PM

My contempt for Democracy is based upon the level of intelligence to be found among the majority of people. I do not wish to be ruled by those who can barely sign their own name, let alone run their own lives.

And you wish to be ruled by lawyers? Ye Gods! I’l take those people who cannot sign their own name, thanks.

If said document were under the purview and protection of a select group, devoid of politics, this would not happen.

You’ll be telling me you believe in the tooth fairy next. Where do you propose to find this “select group, devoid of politics”? In the law schools?

I repeat, I’d sooner pick the Court at random from the ranks of plumbers and electricians. They usually have at least one foot in the the real world.

The Law is the biggest tyrant of all

There is no freedom without law. Seemingly paradoxical, but true.

flenser on June 16, 2008 at 6:33 PM

There’s something creepy about people who hate and fear their fellow man more than the state.

flenser on June 16, 2008 at 6:35 PM

Send_Me on June 15, 2008 at 10:31 PM

Just a warning for others on “the Death of Common Sense,” the author starts with a great premise, provides great examples, then comes to the most mind-staggeringly wrong (or at least sideways) conclusion possible – give bureaucrats more power.

Not in so many words, of course, but the primary focus of the conclusion is on examples of how public sector officials could make better decisions with less restrictive rules. Not, say, ya know, getting out of the way or anything.

The tragedy of a communitarian trying to figure out why bureaucracy is stifling freedom.

Merovign on June 16, 2008 at 8:00 PM

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