From the WSJ, an few important points to remember in the wake of Hamdan:
A single liberal retirement from the Court would thus put Hamdan‘s reasoning in jeopardy […]
[…] As a practical political matter, Hamdan tosses the debate over military commissions back to Congress. Our liberal friends keep assuring us that this is the key to restoring the “rule of law.” But there’s a reason the Founders gave Presidents the bulk of the Constitutional power to wage war, leaving to Congress mainly the power to declare war and then finance it. The executive branch can act with speed and decisiveness that a committee of 535 simply cannot. Presidents can also be held directly accountable by voters in a way that a diffuse Congress (and especially the Supreme Court) cannot.
That’s why the clamor after 9/11 was for the White House to act, and that is the period in which it established military commissions and set up Guantanamo. Now that we haven’t been hit again in nearly five years, liberals want us to believe that such executive authority is more dangerous than our enemies.
We thus certainly hope the Administration presses its case for military commissions to the Congress, including just how much due process protection the Members think al Qaeda detainees really deserve. An election is coming in which the prosecution of the war on terror will again be a major issue. By all means let’s debate the proper care and handling of Osama’s bodyguard.
[my emphasis]
In my first post after the Hamdan decision was announced I noted that, politically at least (and indeed, from the standpoint of pragmatism), the ruling would not harm the President—the jubilation and glee coming from the left notwithstanding. Because what Congressperson—aside from Pat Leahy and a handful of others playing to the anti-war progressivist base—would want to go on record declaring enemy combatants deserve the rights given to criminal defendants?
But that aside, what was most troubling about the ruling was the diminution of long-established executive power by judicial fiat—in short, SCOTUS, with one conservative defector, transferred Constitutional authority to manage a war to Congress by giving them a post hoc ability to question Presidential decisions as overstepping Executive authority, rendering it far safer for any future President NOT to act in the wake of attacks on the homeland until s/he has Congressional authority, something that will always be used as part of the partisan dance and leveraged for crass political purposes. Additionally, they gave themselves more power—[potentially] establishing a de facto treaty with al Qaeda and overstepping their jurisdiction. I leave it to you to ponder why those who continue to cite the Hamdan decision as a victory for the rule of law studiously ignore the majority’s having made an interpretive mockery of the Detainee Treatment Act.
Most disturbing about all this, however, is the initial observation made by the WSJ’s editorial writers: “A single liberal retirement from the Court would thus put Hamdan‘s reasoning in jeopardy.”
How can this be? How can it be that we’ve reached the point where highly-charged SCOTUS decisions often break along partisan / ideological lines? (And before you go noting Kennedy’s break, note, too, that Kennedy defected on Kelo, as well, expanding “public good” to mean “whatever a local municipality can justify by arguing that it will bring in more revenue”. And to be fair, I think Scalia guilty of the same flawed “reasoning” in Raich).
The answer to why this is now so, I think—how “reasoning” become so completely relativistic—is that we no longer have a unified strategy for how to interpret, with the idea of a Living Constitution often acting as a judicial shortcut for failed legislative initiatives, which has the practical effect of codifying a strained (and logically problematic) idea of interpretation and how it is made to work, allowing its proponents to move back and forth between readings that cite legislative intent and readings that deny the importance of that intent in new and different “contexts.”
But this de facto conception of interpretation as being justified by any convenient ground (only one of which, intentionalism, makes any coherent sense, particularly if by “interpretation” we agree that we are trying to decode the meaning of language agreed upon by consent) in effect renders “interpretation” as an event toothless. Because when the grounds for interpretation become any of the number of ideas about interpretation that have ever been argued or gained a kind of cultural vogue, then interpretation itself has become decentered and largely ineffectual—except on those occasions when either interpretive assumptions or interpreted conclusions happen to align.
But that, when it happens, is largely accidental—and I am increasingly bothered by the very idea that a particular judicial retirement can change the “reasoning” of a decision, especially when reasoning is predicated upon a (to my way of thinking, dangerously flawed) idea of what one is doing when one claims to be interpreting.
If nothing else, intentionalism as it pertains to setting guidelines for interpretation seems particularly important in the context of pronouncing on the Constitution. (Even textualists like Scalia who profess not to worry about intent—which as I’ve argued in other contexts should provide the common ground for interpretation—are actually engaged in intentionalist maneuvers, though they fancy themselves doing something else; conversely, proponents of a Living Constitution hermeneutic model are engaging in augmentation and creative writing). And until we have a consensus view among Justices about what it is they think they are doing when they claim to be interpreting, we are likely to see decisions break down more often than not along lines that mirror interpretive assumptions.
That these lines also tend to predict political affiliation is a function, I believe, of how our assumptions about language (often unconsciously) guide our ideological beliefs and, ultimately, our affiliations and allegiances.
And I think it is this, above all else, that had many legal conservatives—even those who have never really thought about the linguistic underpinnings of our beliefs—so concerned with Harriet Miers and (when his name was floated), Alberto Gonzales, as potential SCOTUS justices. That is, they struck many of us as far too “pragmatic” in their thinking, and we feared another Justice O’Connor, who oftentimes punted on tough decisions by taking the easy and politically correct route rather than allow her rulings to proceed naturally from her ostensible conservative legal principles, which would have necessarily led her to different conclusions. Or, to put it more frankly, she began with the politically / socially expedient ruling and reasoned backward in order to justify it.
This is not the state the Supreme Court should find itself in—otherwise we have yet another political arm of the government, one that carries the pretense of being apolitical. Which not only upsets the balance of powers, but it does so while pretending to remain true to its own mandate.
And in that sense, there are notable parallels between today’s Court and today’s media.
Full-disclosure: I’m still thinking much of this through, so keep that in mind as you respond. I’m interested to hear your opinions.
(h/t Terry Hastings and Allah)
When was it any different?
I don’t know how to briefly say this without sounding trite or over-simplistic, but does it bother anyone else we spend so much time interpreting a document written in English?
Yes and no. For practical purposes, the law requires a much finer-grained level of interpretation than, say, a shopping list. After all, if you get the law’s interpretation wrong, people go to jail, get killed, lose their property, etc.
Now that the Court’s applied Article 3 of Geneva to Gitmo, it’ll eventually be asked to define the terms of the article—for example, what qualifies as “degrading” or “humiliating” treatment. Enter the issue of foreign law. The four liberal justices will surely want to apply European concepts. But what about Kennedy? Will he be the fifth vote for that too?
Friends, he will.
What alarms me is the slide into flagrant partisanship that now exists. I can’t think of one statesman from either side of the aisle, one person who’d say, ‘Hold up, let’s think about the long-term ramifications of this proposed legal decision. After all, it’s ultimately going to effect both parties.’ Not one.
B Moe: No one agrees on what anything means anymore or they are intent on enforcing their own meanings at all costs. I applaud Jeff for fighting a rearguard action against relativism.
Integrity has not been a hallmark of the Supremes for a long, long time
Thus the necessity of getting one more good judge in there. The natural conclusion of continued control of the SCOTUS by “liberals’ is to relinquish our independence and turn justice on its head. You see how well they’ve done in Europe. Or the UN. You’d think it would act as a strong warning to us.
There’s a scene in the animated Peanuts “Race for your life Charlie Brown” when the different groups are racing down the river and the girls’ raft has decided against having a Captain and will not make one decision without a secret ballot. It’s a rather sly bit … the girls’ hearts are in the right place, but they become oblivious to the events around them and incapable of reacting to them.
We’ve lost our way, culturally, eh?
Definitions implicitly lack meaning. The ravages of Modernism wreaked Postmodern compensations that perhaps have made republican democracy impossible, and all just in time for Islamic fascism.
This all makes being a geezer very gratifying.
TW: gratifying, as in gotterdammerung. Queue the Rhine maidens.
Has Postmodernism made republican democracy impossible?
This makes being a geezer very gratifying.
TW: gratifying, as in queue the Rhine Maidens.
The Congress shall have power . . .
To constitute tribunals inferior to the Supreme Court;
To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;
To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
To make rules for the government and regulation of the land and naval forces;
I am not sure I agree anymore. It seems to me the attempt to find a “finer-grained level of interpretation” is what is leading to the “getting the interpretation wrong”. I may be just splitting hairs semantically, but I think a confusion between interpretation and definition is a large part of the problem. I am still trying to sort it out myself, though, so I may just be full of shit.
When we lose our common understanding of the fundamental concepts that hold socirty together, we pave the way for organs like the SCOTUS to empower itself far beyond the role for which it was originally intended. Given a certain amount of power, most people want even more.
Also, we open ourselves to having powerful media organs like the New York Times declare itself a branch of the government. Because that’s effectively what they did. If we can’t agree on the meaning of ‘treason’, it becomes impossible to commit.
Think of it: if we allow the NYT to go unpunished, we are tacitly conceding their power to make our national security decisions despite their being unelected. By not standing by the meaning of a single word–treason–we’re participating in our own demise.
tw: is. It depends on what you mean by is.
Jeff, I know we don’t agree on the effects of this, but I think there’s one point here that’s factually wrong: when you say “they gave themselves more powerâ€â€establishing a de facto treaty with al Qaeda.” The Third Common article isn’t phrased as an agreement with other powers in a conflict — it’s an agreement among the signatories that they won’t mistreat captives or other non-combatants. If they had interpreted the al-Q people as POW’s under Common Article Four you’d have a case — but they don’t. If they had, they’d be insisting not just on humane treatment, but also on things like paying them a stipend. Hell, by insisting that the conflict is not of an “international character”, they’re not even allowing for the possibility that al Qaeda could be a party to a treaty among nations.
Maybe “international” in this context was supposed to mean “crossing borders” rather than “existing, occurring, or carried on between two or more nations”, but even Justice Thomas agrees that the majority reading is a plausible one; in any case, I can’t see any reading that implies a mutual treaty between the USA and al Qaeda.
Now, as far as the jurisdiction issue, I can see that, but as Ann Althouse noted, the SCOTUS has had a history of finding a way to not give up jurisdiction without ever explicitly ruling on Congress’ power to remove things from their jurisdiction. (And what did you expect? These guys aren’t disembodied angelic Avatars of Rationality, they’re people, just like us. They’re jealous of their own prerogatives.)
On the other hand, as actus pointed out (gack, I’m agreeing with actus again), it’s pretty durn clear that Congress has the power to establish both courts and crimes in this context. The majority decision couldn’t have been more clear if Stevens had written in red ink “just get Congress to define your military tribunals and you’re covered.”
It just doesn’t seem appropriate to imply misfeasance or malfeasance, given the facts.
I don’t think there’s ever been a court with a single interpretive strategy. So I don’t know about ‘no longer.’ If anything though, what has broken what was close to a monopoly has been conservative concern with textualism—attacking the legal process purposivists.
Damn, stepped on my punchline.
It just doesn’t seem appropriate to imply misfeasance or malfeasance, given the facts. If we’re adopting a textualist approach to interpreting the text — which I agree on as a guideline, although I don’t believe in “the” meaning of any text — then when the interpretation is plausible, it seems to militate for an understanding of the issue as rational and honest disagreement.
Good God, he’s making sense again. Who are you and what have you done with Actus?
The thing is, people try to treat interpretation like a deterministic machine — a goal with which I’d agree, but an idealization of a real process taking place in the arguments among real people.
Not a war power. Nothing in this clause refers to war, and in the day it was unremarkable practice to have judicial-like decisions being handed down by military commanders where warfare was the context. Grade: F
Also not a war power; these kinds of things are expected to be done before war powers need to be exercised. Grade: F
See above. Grade: F
Still not a war power, but at least you’re in the ballpark. I’ll give you a C- for this one.
GPA: 0.4
Ouch.
Convince me that you know the meaning of the word “treason” and that what the Times did conclusively meets it, and we’ll talk. In any case, if what you’re saying is true, it happened about the time of the Thomas Jefferson administration.
Who constituted those tribunals?
I don’t know what you mean by ‘war power,’ but these do have the advantage of actually being text in the constitution. See, one can use conclusory reasoning when your conclusion is the citation of text that helps you. But not when you’re making up something thats not in the text.
It seems to me that the founders intended Constitutional jurisprudence to be essentially conservative–conservative in its philosophical and not necessarily political sense. Hence the relative difficulty of amending, life long SCOTUS appointments. The Constitution was never intended to be a moving target or political football.
Intentionalist or originalist strategies of interpretation fit best with this essential conservatism.
On the other hand, we are political animals. Hence, the President “should” have broad power to influence the court through appointments, with congressional “oversight.” Cough, cough.
I think both the President and the Congress are falling down in the job. The political process should illuminate the critical issues so that we the people can understand and ultimately chose. The courts should reflect, athough indirectly, our ideas about jurisprudence. Do we the people favor originalism? I think we do, but our political leadership has been somewhat weak.
Not a war power.
Come on, McGeehee, nothing in Article One says anything about those powers being only in peacetime. Remember Congress had to write and pass the UCMJ; military courts get their jurisdiction under these clauses, not under the Executive.
Unfortunately, it can be a little hard to tell the difference between favoring originalism and textualism, and favoring decisions that come out the way we want them to.
It’s also limited by its own terms to conflicts occurring within the territory of a High Contracting Party. Why? If it’s just a pledge not to mistreat prisoners, where those prisoners are captured should be irrelevant.
The article’s clearly aimed at civil wars occurring within signatory nations. It would be perverse if a government could adopt the Conventions for conflicts with other nations and then not have them apply during conflicts with its own people, on whose behalf it acted when ratifying the treaty. Where does Al Qaeda fit into that framework?
And if the answer is that it doesn’t matter what the spirit of the law is, only the letter, then how about Thomas’s argument that, strictly speaking, the conflict with AQ isn’t occurring in the territory of “one of the High Contracting Parties.” It’s occurring in the territory of multiple High Contracting Parties. Such a technical reading surely isn’t in the spirit of the article—but who cares? We’re talking about letter of the law here, baby. Let’s dig it.
Charlie (Colorado):
I agree. My kind of originalism is mostly practical. “Intent” is hard to know, but once we’re agreed on what it is, we’ve got rules–even if they’ve somehow strayed far afield from “real” intent.
I’m mostly concerned that we have a shared understanding of our most important rules, and that we have an orderly and republican process for changing them.
And I think we’ve got some problems. I’m not competent to judge the ins and outs of Hamdan, but Roe is a good example of terrible jurisprudence in my book.
Because he’s wrong to just call it a pledge. Its mutually binding between signatories as to how they’ll act in each other’s territories.
I think we should take a historical perspective on this. I’m not sure how “gotterdammerung” it is.
This sort of thing has happened before in American history. Any time that a political movement has taken over from another, the Supreme Court has always been an instrument of defense for the old regime.
* For example, John Marshal (a Federalist) fought long and hard against the Jeffersonian Republicans (today known as Democrats).
* Roger Taney tried to stop the growing Free Soil movement with the Dred Scott decision.
* In the 1930s, the Supreme Court fought back against the New Deal. And so forth.
This has lead to some spectacularly bad decisions. However, there has always been a way to work around this, and I suspect there will be one this time. If a Republican wins in 2008, there will be more changes to the Supreme Court, and the tide of history will move on.
If not, there’s 2012, 2016, and so forth. If the Left is in decline, eventually they will lose control of the government.
The key is to key the conservative movement on track, and to rescue it from its moments of weakness. Time heals all wounds, and wounds all heels.
One day, if he’s really lucky, actus will be writng inaccurate headnotes for West Publishing.
This post is essentially about starting from the same set of assumptions as a way to rectify the drift of the court into pure politics.
Pointing out the difficulty of identifying intent as it pertains to establishing ground rules is not a reason for repudiating it as the goal of interpretation. It is an excuse to do something easier but less rigorous and inherently more dangerous with respect to founding principles.
Allah, far be it from me to argue with Deity — well, actually, no, but it’s a nice line — but you’re trying to palm an ace here. First off, unless some of the detainees were capable of bilocation or were captured exactly on an international border, each one was captured in the course of activities taking place in no more than one signatory, and since I think both Afghanistan and Iraq were signatories, I’m willing to bet it’s exactly one. If, as I argue, the decision does not assume that al Qaeda is a nation in itself, then every one of them occurred in the context of a collection of illegal combatants, not under the aegis of a legitimate power, engaged in insurrection or civil war within the territory of a legitimate power. So I don’t know that I find Thomas’s argument unquestionable.
But then, if you’re going to take Thomas’s argument as an authority, then you have to take it whole — and while he didn’t find the majority’s opinion convincing, he did find it plausible, and had to rely on deference to the executive as a way to go through the horns of the implied dilemma.
As far as I recall, there’s no textual basis for the notion that the SCOTUS should defer to the Executive — rather the opposite. Maybe Thomas could have made an Article Two argument — but he didn’t.
If the tax powers, or the establishment of post roads, or the census, take place in wartime—do those then constitute war powers?
This is what i luvs about the internets.
Well, it’s a reason for doing something that is possible. And it may just be more—to some, a necessary more— formal: after all, the text of law has passed bicameralism and presentment. Has the intent?
So what do you do when two groups arrive honestly at different interpretations of what the intent was? It would seem that, if the goal is to eventually arrive at some decision, then you have to establish some sort of tie-breaker — which we have: we settle it by a vote of the Justices of the Supreme Court.
How can we tell your argument about “intent” from “the decision didn’t go the way I’d like”? I’m not claiing that is your motivation — but how can we observe the difference?
Oh, at least try to make an argument here. No, they don’t particularly constitute war powers — but are you seriously going to argue that Congress doesn’t have those powers in war time? Does the Constitution require the militarization of the Post Office in time of war?
I don’t think so. But if you’re arguing that Congress doesn’t have the power to establish subsidiary courts and procedures in war time, they you pretty much have to conclude they lose all their powers during wartime. (It’s not completely implausible: that’s the way the Romans did it.)
By the way, I’m leaving for the San Luis Valley in a little while, so I’ll be away from the computer for anything from 6-7 hours to three days. Just so you know, if I don’t come back to this for a while.
It’s aimed at how they’ll act in their own territories, namely, in cases of civil war. Stevens admitted as much. Since all the signatories are nations, one signatory “acting” in the territory of another signatory almost always implies a conflict between nations—i.e., an international conflict, which is beyond the scope of Article Three. Not always, of course; Iraq is a good example of one country acting in another’s territory without hostile intentions (although of course most people in your camp, actus, would deny that that’s true), but Afghanistan circa 2001 ain’t Iraq circa now. In fact, it pays to re-read the beginning of Article Three:
There were three parties to the conflict when the Gitmo gang were captured: the U.S., Al Qaeda, and the Taliban, the then-government of Afghanistan. Bush himself concedes that the Conventions apply to the Taliban notwithstanding the fact that the U.S. never officially recognized it. So we’ve got a conflict occurring in the territory of a High Contracting Party … that is of an international character. Not every party to it is a sovereign nation, but so what? Nothing says they have to be.
The point here, of course, is that it’s easy to make this article read how you want it to read. I don’t want filthy terrorists to enjoy the protections of rules they won’t play by themselves. Stevens and actus do, for whatever reason. So it goes.
What do you do? Nothing. Not everyone will agree on what the intent was. But at least they’ll be forced to make arguments that appeal to intent in order to justify their reasoning.
…none of which prevents the Supreme Court from established a consistent (and linguistically coherent) strategy for doing what they are doing.
By examining the reasoning behind the decision. Some arguments will appeal to intent; others won’t. Instead, they will “expand” on intent by citing new circumstances that require judicial augmentation and leeway.
I’m looking for a consistent and coherent approach to interpretation. Once established, the rest takes care of itself.
If the Justices are “too human” to abide by the guidelines in a good faith effort to reach their decisions that way—even knowing the difficulties—they shouldn’t be on the bench.
actus,
I’m not sure I follow you, but we may just be in violent agreement.
Constitutional Amendments clarify or redefine the intent of we the people. Once the rules are changed, this new intent has ultimate authority.
Regular “bicameral” legislation is circumscribed, or should be, by the Constitution, or not, because the Constitution is silent, or intentless, on the matter at hand.
Hamdan seems to offer the latter. What most of us, I think, object to is short circuiting the former–i.e. legislating from the bench.
Where on earth did you even get that idea, anyway? What was there in my initial comment that led you to such an incredible interpretation? The off-kilterness of your question is what led me to reply the way I did.
My point is that it’s not a war power unless it is a power, the use of which is made necessary by the fact there’s a, you know, war on.
The only two powers Actus mentioned that came close were the ones on which I gave him a C-minus—the ones Jeff referenced in his post as a matter of fact.
The Constitution specifically allocates those powers to Congress, but every other true war power is by definition executive.
The countries don’t have to be in conflict. We’re acting in Iraq, but thats not a conflict we have with Iraq. Supposedly we’re there at their invitation.
I don’t think Geneva treats non-state actors as parties.
I’m not so sure about that.
But Hamdan is, in a way, the opposite of legislating from the bench. It’s telling Congress to go legislate in this area.
No. More than that.
It’s not the location of the detainees or their “activities” that’s material, it’s the location of the “conflict.” If Iraq and Afghanistan, like Bali and Beslan and London and Madrid, are all part of a global war on terror then Thomas’s point about it occurring within multiple territories isn’t just semantic.
To be clear: I find his point strained and untrue to the spirit of the article. But so is Stevens’s. There’s a clear, if poorly articulated, impulse in Article Three that it shouldn’t apply to all combatants. If that doesn’t mean Al Qaeda, then who does it mean? By the article’s own terms, an insurrectionist group that obeyed the rules of war but fought in a non-signatory territory would be entitled to no protection while Al Qaeda gets the whole enchilada. Astounding.
Why do I have to take his whole argument? He made a good point, I cited it. I don’t want to marry the guy. And yes, he did find Stevens’s reading plausible—but his own reading is plausible too. How should the Court decide which should prevail? It could do as I’ve done and look to the spirit of the law to break the tie. Or, it could decide which result it wants to reach and then reason backwards. (Which I’ve also done.) Sounds like they want the latter route.
No textual basis, but there’s certainly case law. They could have invoked the political question doctrine, they could have (to take a more extreme example) used the old Curtiss-Wright case as precedent. It’s funny to me how “checks and balances” has become code for the Court above Congress and Congress above the president. I was always taught they were separate and co-equal, and that each had great latitude in its own sphere. The right to define the word “international” within a treaty governing our foreign relations would seem to me to fall within the acceptable sphere of executive power, but we can agree to disagree on that.
The standards for that are clearly not met here
But treaties take 2 branches to enact. And a third to, like the rest of the law, interpret.
Actus,
Again, I’m not competent to judge the legal arguments. True, Hamdan seems to offer a Constitutional remedy, but as I understand it, the remedy is for its own tortured reasoning. Along the line of “look, we painted ourselves into a corner..here’s how to cut in a door.”
Many contest the logic that got the court there in the first place, and many, it seems worry about the precedent, regardless that there might be a short term fix for the administration on one front.
Call them pirates and have congress reenact the piracy statutes in effect during the first hundred years of our republic.
Captain = judge, officers = jury. Short drop, shorter rope.
Simple, I know. But it’s how we’ll handle this in the end.
I haven’t put a lot of time in studying the milblogs for in-depth reaction to this decision. I know that if I was running patrols I’d be pushing ROE to the limit in order to avoid taking prisoners.
Nothing worse for morale on the battlefield than catch and release, except for ROE that allows fleeing enemies sanctuary across a line on a map.
TW=”hall”. Our Supremes have emulated the kids in the hall.
speaking of which: Centcom reports 7 killed and 0 captured. No coalition casualties.
TW: evidence of cause/effect?
Prove it. I’m not saying it’s not — nor even that I wouldn’t agree with you, arguing for myself — but Jeff’s underlying argument is that they aren’t just coming to a different conclusion, but that they are failing in their responsibilites.
Fine. but what if “international conflict” means “conflict among nations”? Are you prepared to argue that “terror” is a state actor? Or that al Qaeda is? (And if the second, are you prepared to argue that two islamic totalitarianists who have no contact and are “copycatting” “real alQaeda” are part of that state? It would seem that that way lies madness.)
Because you’re arguing that there is a real truth underlying the whole thing. If the argument is true when it leads to conclusions you want to cite, it’s still true a paragraph later. Or, at least, if you’re insisting that you’re making a rational argument based on the text, you pretty well have to buy into the meaning not changing.
And that’s essentially Thomas’s argument (the “deference” argument.) But, given Article One, can you really say conclusively that the original intent was to give that power exclusively to the Executive? If not, well, all the majority opinion says is that to satisfy the terms of the treaty, you need a statement by the Legislative.
You seem to be arguing that this is not just in disagreement with what you’d have said, but that it’s wrong. And I just want to know how you can tell?
So your complaint is that the Supremes didn’t apply your favorite critical theory making their arguments?
Just like the critical theory crowd has done?
Ah. Who is gonna bell that cat, brother mouse?
I’d bet a hundred dollars that if you were to wake Stevens in the middle of the night and put a gun to his head — assuming he survived the shock, he is a little old man, after all — he would tell you he’d done exactly that: followed the guidelines of legal practice. That had been his intent.
Now what?
Well, I’d guess that it was an appearance that your intent was to derogate Actus’s argument on the basis that those weren’t “war powers” and thus weren’t applicable. What makes that interpretation of your intent “incredible” other than the sudden sickly recognition that if you meant that you were being silly, but that if you didn’t, your criticism of actus was vacuous?
Jeff, you say:
Saying we “no longer have” implies that you believe we once did have such a strategy. I’m no Constitutional scholar, but given, eg, Marbury v Madison, the Cherokee removal, Dred Scot, “Jim Crow” and Brown v Board of Education,
I’m curious when you think this Golden Age happened?
No, I didn’t leave for the SLV yet. I ended up taking a 3-hour nap.
Of course it was my intent to only take a half-hour nap.
“The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”
The “unified strategy for how to interpret” lay down quietly in the shade of that dreadful penumbra some forty-one years ago and shows no signs of even faint willingness to rise once more. Hamdan is just the most recent effort by the court to reduce its stature. There is certainly a rationale to the decision but “reason” plays little apparent part within the rationale.
I wonder how Hamdan’s attorneys have explained this 185 page model of obfuscation to him? Do they tell him that his status has been clarified and that they know precisely what the next step should be? Or would they dare to tell him the truth?
No. It’s not that it’ my favorite critical theory. It’s that it’s the only one that makes sense linguistically.
Well it ain’t gonna happen if people who have training in interpretive theory don’t make the arguments, is it?
Intent to follow the guidelines of legal practice—which at this point allows for interpretive practices that exceed originary intent—are not the point. The point is did he apply an intentionalist reading to the text? These are different things.
I don’t know why you believe bad decisions can’t be based on intentionalist readings.
But before the linguistic turn—and before the new critics / agrarians, in particular (30s and 40s)—interpretive theory was almost always intentionalist in nature. So pre Wimsatt and Beardsley’s “The Intentionalist Fallacy,” would be my guess, if what you’re after is for me to pinpoint an historical moment where we began linguistically losing our bearings. Ironically, the New Critics’ textualism is what Scalia claims he adheres to. But if you read my link to the discussion with a steamed dumpling, you’ll see why I believe he’s mistaken in describing his own interpretive stance.
And I’m not calling the era before formalism a golden age. This isn’t a “Leave it to Beaver,” Eisenhower, Pleasantville argument. And I’m not an idiot who sees conservative golden ages in the glow of retrospect.
Instead, it is a suggestion that a change in the idea of what we are doing when we interpret has had an actual impact on how the Constitution is read and interpreted. And there has been a change in interpretive maneuverings over the last 60-70 years—including radical changes in the wake of Derrida’s Hopkins lecture in 1966.
From a legal perspective (which is not my field), some locate the beginning of the Living Constitution movement at around that time.
Jeff,
Scalia as New Critic. Great observation. I know that I tend to give the best new critics a pass because their interpretations were so rich, and often historically rooted, but set free from the rigor of a very strict formalism. But still tied to Western metaphysics. But it’s a slippery slope to Derrida.
I applaud your principled stand for a rigorous and coherent iterpretive theory in our jurisprudence.
The lefts arguments in all things Constitutional, and Judicial, stems from an enherent unrelenting distrust and susspician of the Executive, a position that have no choice but to follow, since they are out of power.
– Thus they will seek, in every manner possible, to uproot the generally accepted interpretations, extend the powers of the two former, and just as aggressively limit the powers of the former.
– In this they trully have no choice. The effectiveness of this tendentious agenda is entirely up to the response of the majority, and in any event, entirely to be expected. I’ve come to the point where I do not see it as treasonous, nor un-patriotic, as much as desperately necessary.
– It must be a real day to day bitch, having to neffariously, without any real conviction only sheer political desperation, to work against the survival of your own country. I don’t envy their plight, but neither do I feel remorse or pity for them.
– What you see going on today is the legacy of lazy Conservative politics in the last 30 years.
How does this explain the warren court? Wasn’t that at the time of liberal control of the legislative and executive? Or at least, the executive, as some of the legislative was still the illiberal dixiecrat?
Fog. Blather. Rinse. Repeat.
Or maybe it’s only because my back hurts.
Let’s start over. Why do we have a Constitution anyway?
Because the Founders were intimately familiar with the situation where there were effectively no rules for the Boss. What that leads to is a situation where life isn’t predictable—where you don’t know, when you walk out of the house in the morning, whether to expect to be arrested by the Secret Police, handed a million dollars by the Welfare Fairy, or just to get to go to work.
In a situation that isn’t predictable you can’t *build* anything. If gravity isn’t constant you can’t decide how big the timbers in the house should be; if the rules aren’t predictable you can’t decide what behavior will lead in the direction of the result you seek. And if the rules change whenever the Big Guy has a toothache, or gets laid, or finds a mouse hair in his tapioca, you have no way of predicting what they’re gonna be.
So the Founding Fathers wrote the Constitution. It’s pretty simple. It’s written fairly permanently, in ink on parchment. It’s hard to change. It makes things predictable, and if things are predictable you can build things—in this case, mostly social things, but, then, I’m including money changing hands as “social”. If the rules are gonna be pretty much the same tomorrow as they were today and yesterday, you can predict. You can make plans.
Of course the Constitution is “living”. Of course it has to change with the times. Same with laws. But the Constitution is written. It has to be interpreted, because the plain words as written don’t cover everything—there is, for example, no mention of Mr. Hamdan in it. And yes, our interpretations have to be fairly flexible, and yes, they will inevitably change with the times and social mores whether we intend (!) that or not.
But if there isn’t any consistent standard for interpetation, the document might as well not exist. There’s a discussion on one of the USENET lists I follow about some feminist who’s discovered an “interpretation” of Newton’s Principia as a “rape manual.” I suspect *m*nd* might approve. I think it’s stupid, myself, and a perfect example of a situation where the “meaning” of the “text” is dependent on the emotional reaction of the person to the sight of the “marks”. Whether it’s valid or not, “true” or not, is irrelevant. It isn’t consistent and can never be; therefore it isn’t predictable, and if it isn’t predictable you can’t build anything using it.
So I don’t really, truly give a flying damn about what the method for interpretation might be, what its name is or who wrote the seminal paper. What I do care about, and really the only thing that matters, is that the method chosen has to be consistent and predictable—that the result arrived at by Wild-Bear-Shits-In-Woods Nebelwanger, Justice of the Peace for the Sixth District of the Nobigwangtucket Indian Reservation, is at least similar, at least related to what Justice Wilburwibble of the Supreme Court will come up with. The rest of all this is semantic overload.
Regards,
Ric
Charlie(C), Allah, Jeff, tmj, Old Dad, Ric, Rick, others
You’ve all written thoughtfully on the subject, and with concern as to both process and result.
Not to get too basic here, but the very idea of three branches of government, described and chartered by a document of some antiquity, each with a role, each with terms and conditions of operation, each subsequently extending and enhancing the detail of their charters – is inherently challenged in what was described and intended.
While adulteration, malfeasance and egregious behavior have occurred in each of the three branches, and in the interpretation of the original intent; such is perhaps necessary and in perverse ways, helpful in keeping our republic alive.
I do not cheer the perversion of Article III (judiciary), a very brief article, where it infringes on Article II (executive), also brief. However, reality intrudes where definitions do not exist and must be developed. I do not doubt that the definitions and interpretations will be gotten wrong in fist and subsequent instances, but such is the nature of getting definitions correct – best efforts and iteration.
Jeff laments the illusory nature of permanent judgment. As do I. In the Hamdi case, it is likely that key portions of the judgment will not stand even brief tests of time. Congressional action, subsequent rulings, unchallenged executive interpretation are each likely to erode key elements.
The immediacy of current endeavors illustrates exactly why neither an Article I (legislative,) nor Article III (judiciary) body should be engaged in the tasks of the executive. By definition, the executive must decide and execute with urgency unmatched by either of the other branches of government. The two-hundred+ year battle to enlarge the powers of legislative and judicial branches, with numerous egregious successes is tried and often beaten back in time of war.
Apparently this is not so in this series of conflicts, couched as an ambiguous larger “war.†While the Bush administration has done well in many aspects of both domestic and international policy, as well in persecuting terrorism, there have been weaknesses as well. Chief among the weaknesses is defining the current series of conflicts in a less ambiguous way than “War on Terror.†While a “code word/phrase†to many, the term is not sufficiently explicit to satisfy the literal minded, many of which are on the left, and/or are engaged in the activities of the judiciary (lawyers, judges, prosecutors.) Being politically correct and defining the war in better terms is problematic.
Allah has gut reactions about granting our enemies status which they do not grant us. While I sympathize, I think that we can clear the low standards of our enemies without compromising our effectiveness and ruthlessness.
Similar to Jeff’s caveat, I am still reflecting on how this should be viewed, and what level of action or rhetoric is necessary.
But did the inventors of Scrabble in their wisdom, when they laid down the rule that no proper nouns could be used, MEAN to include proper nouns which had become popular shorthand for common nouns or verbs, like “xerox” and “kleenex”? And if we do not rely on their intent in this case, mustn’t we simply abandon any attempt to understand the rules, due to our lack of a coherent interpretive strategy?
When I hear talk of interpretation, it reminds me of Marcotte’s translations, giving too much power to the interpreter and usually expanding and muddling the borders. It seems we should really be seeking definition, as in bringing into focus.
Translation is an interesting example. Classics like “The Brothers Karamazov” need a good new translation every 40 years, at a minimum, or else the tone of the English translation as it becomes slightly archaic starts to obscure and confuse the tone of the original. Of course, some translations become powerful versions in their own right, like the Scott Moncrieff “Remembrance of Things Past”, which is not obviated by subsequent translations, good as they are. And then there’s that Bible book. You might say they’re living documents, as it were.
TW: “church”, as in “the Catholic Church is the final arbiter of the true meaning of the Bible.” Or, if you buy into that whole Reformation and Enlightenment thing, not.
I’m jumping ahead here and not reading any of the other posts before commenting – because I have a few thoughts rolling around in the noggin that I want to set down before I forget them. So, forgive me if these ideas have been discussed at length already. I know, a blog commenter faux pas . . .
Over the last 50 – 75 years, Americans have seen a fundamental shift in the way they perceive judges and courts. I believe this has been pushed by liberals as well as by the legal profession – to view judges as heroic figures and as leaders, and to view the Supreme Court as the ultimate source of U.S. morality and legitimacy, rather than a co-equal branch of government with a specific function.
This has resulted in a shift in the way Americans perceive the role of jusitces on any court, but particularly the supreme court. Instead of viewing justices and courts as passive institutions whose job it is to follow the rule of law and settle disputes, Americans now percieve Courts as active institutions as a force for change in society, whose job it is to advance an agenda.
This shift in perception of the role of Courts in our system of government is so pervasive as to reach legal academics and thus, attorneys. Thus, attorneys and judges have to a large degree internalized this idea of the Court’s role as hero and defender.
Indeed, the legal profession’s view of itself as bastion of change / heros of the little guy can be seen in the ABA, an institution that has turned from a professional association into a liberal lobby group.
Accordingly, many judges no longer look to the rule of law, precedent, and intent when coming to a decision. Rather, they look to outcome, and reason back.
As this trend has developed, it has magnified. Once the Court took this power to itself, people realized the importance of getting justices of a certain ideology on the Court (depending of course, on your point of view). Once that happened, the divide grew and the justices became more willing to start from the end point of outcome. Thus, the importance of appointing someone of the right ideology became even more important – again, magnifying the problem.
Unfortunately, I don’t see a way back, at least for a long, long time.
I think people have been picking judges for their ideologies for a long time. Since the founding.
Well, when Alfred Butts sold the rights to James Brunot, he let Brunot change the rules, because Brunot bought the rights. And Brunot said that he didn’t care how you define a word.
So presumably, the players have been given the authority to determine for themselves how to define a word, because no original intent exists.
So to use your analogy, this would be like an issue which is not dealt with by the constitution, and therefore the Supreme Court has no right to find any decision made by the other branches of the government unconstitutional.
I hope this helps.
What if it was Osama and not his bodyguard?
actus! Your date is here!
Actus,
“I think people have been picking judges for their ideologies for a long time. Since the founding.”
Well, generally the President always picked people from his own party, and for political reasons. but, that is not the same as picking someone who you believe will pursue the outcomes you want on the Court. I believe that is new.
Both because people have a much different idea of what the Supreme Court is and because the power of the supreme court is much, much different today than it was. In other words, I think there is a big difference between nominating someone for the supreme court b/c he is a federalist and friends with a senator that you need to do a favor for, then picking someone, like Ginsberg, b/c you know she is going to always vote to advance a liberal agenda regardless of the actual law.
This is not to say that prior to the last 50 years the Court did not engage in political decisions motivated by ideology, but that was rare, maybe a handful of cases in the history of the Court. Today, it is 5 – 10 cases a year in which the Court is actually taking political decisions onto itself and wherein the decisions seem to be reached based upon outcome rather than rule of law.
I’m saying that this is not entirely the Court’s fault, obviously society views the Court differently, as does congress and the executive. 150 years ago congress would not abide the court’s usurption of power. Today, congress welcomes it b/c it takes difficult political questions away from congress. 75 years ago FDR responded to what he believed was the Court’s usurption of power by proposing his court-packing plan. Today, for some reason, we believe that the Court is infallible, and the ultimate power in the country. Even the idea of “9” justices is enshrined. The idea of adding to or taking away from that number would never be raised today. However, it was not always 9 and does not have to be 9.
– GB
Look at how jefferson reacted to Marshall’s court. They both had different visions of the country and the constitution.
Not really. Look at Lochner and its progeny. Well into the new deal the four horsemen of the apocalypse continued to impose their economic vision into the constitution.
I am no fan of ‘penumbras’ and ‘emenations’ or such like, in which the Supreme Court is trying to extend and embellish the Constitution beyond its bounds. Similarly, guessing at legislative *intent* is one of trying to read scads of documents and then apply it to the final law and see if that law has any bearing on what was actually talked about before the law was written. Somehow the idea that good intentions can lead to bad law that is unconstitutional just doesn’t come up.
Very few rights and powers are actually handed to the Federal Government, and those are the things seen as beyond the capability of single States or Individuals to handle for the Nation on their own terms. Thus the National Powers are limited to those granted to them by the People. This should not be a hard concept to understand: the People grants powers *to* government, not the other way around. This is solidified by Amendments IX and X, which hold all rights not granted government to be those of the States and the People.
So when inter-state commerce, which is fully mentioned as a Congressional role is applied to intra-state commerce, one needs really look and ask: where did they get *this* power from that is not specifically mentioned as theirs? Got a problem with the National Market for goods and services, deal with it at a National level. Starting with the ability to tax medications at the National level and then use that power to limit them and then proscribe such even for intra-state production and use is an expansion of the original power given in Amendment XVI in 1913 to the present. By making everything done at a personal level, even within one’s own home, a Federal issue that can be regulated via inter-state commerce and taxation powers, the Supreme Court goes against the explicit wording of the document they are sworn to uphold.
Or perhaps the People in 1909-13 really *did* intend to have Federal regulation all the way down to the things grown for self-use on one’s own property?
In the Hamdan case the Court actually does not apply the entire framework of the Conventions to those within it. The US, in particular, did *not* sign nor ratify the 1977 expansion to include terrorist organizations, so that is not an allowable reading of the prior Conventions language which only addressed States and those organizations that are unrecognized States. That is the exact framework of the Geneva Conventions as the US has signed up to, and has specificially and categorically not signed to allow terrorist organizations those same benefits. Thus the High Contracting Parties, within this framework as the US has actually *signed* to, is to apply only to those organizations that have taken territory, planted a flag, established a means of redress, established a uniformed military, recognizes the framework of diplomacy, holds all those under its control accountable to laws and treaties and, generally, acts as a Nation, even though it may be unrecognized as such. al Qaeda has specifically and categorically denounced being a part of the Conventions and, indeed, does not want to become a Nation held accountable for its actions. Even when its people are acting within a war zone of a Nation, al Qaeda gets zero benefits from the Geneva Conventions.
By not falling within the entire framework of the Conventions as the US has signed on to and understands it, they get NO benefits. “Illegal Combatants” is a pleasingly distracting term for those that are not held accountable, not beholden to a government, not under any form of recourse, hold to no conventions on warfare and, in general, refuse to wear a uniform and become a soldier for a Nation. The proper term for such dishonorable sorts is “Barbarians”. And by al Qaeda not falling into the conception of States as started in Westphalia the only law that can even begin to apply to them is that set by Congress for the US Armed Forces. And if they do *not* do so, then one must go quite some further back to address these individuals, perhaps even back to Roman Law, although I am quite sure that the Viking laws incorporated into the Common Law should suffice if nothing more modern can be found.
Congress does, indeed, grant War powers upon declaration of same to the Executive. But holds, on its own, the Letters language for establishing a system of warrants, enemies and cargos with any attendent hauling vessels, to be under its purview. That is the Congressional power to exercise its Commerce powers via Treaty on the High Seas and elsewhere. That has not been used since the Civil War and still exists as a Power even though not used and every other Nation has signed it away due to the Treaty of Paris outlawing Privateers. That would be unconstitutional and only the methods giving for Amending the Constitution would allow such a prohibition. Treaties are at the same level *as* the Constitution, but may only regularize those things within the scope of the two Branches involved and not abrogate anything they are allowed.
I do not see the Constitution as a living entity. It gives form and structure to the Government by its limited allowances and guarantees the greatest freedom and equality under the law to all of the People. When new areas arise that are outside the scope of the Constitution, the People and their States are to figure out how to deal with it. If the problem is National in scope, then it is best to Amend the Constitution to hand that limited responsiblity to the Federal Government so as to clearly and succinctly demaracate what it can and cannot do. I have vast problems with the 1930’s programs that wanted everything to be done on a National level and much handing of responsibilities for same to the Federal Government. As a temporary response to limited time circumstances, such as war, it is a necessity, but one that needs be absolutely stopped once that time is over. The Depression era movement to a mighty Nation State to compete with Communist and Fascist and Imperialist States was a misguided attempt to rescue the Nation when it was already changing its course financially, and only needed some minor adjustments to the financial system.
Why we hold onto these things and expand them and put more upon the Government is beyond me.
Actus,
Are you talking about any case other than Marbury? I don’t think this argument holds up to historical scrutiny.
No, that ended more or less after the court-packing scheme of FDR. Again, showing a much different view of the Supreme Court then we have today. I cannot imagine any politician attempting to so radically alter the S.Ct today.
However, we could argue who is right and who is wrong when it comes to the interpretation of the commerce clause, and whether the “four horsmen” were actually correct versus whether the liberals who used outcome centered reasoning were right. I.e., are tomatos that I grow in my backyard, for my personal consumption, really part of inter-state commerce that can be regulated by the federal government?
But, the point is, at that time, people did not look at potential nominees to see how they would rule on specific issues back then, they looked to political affiliation generally (which was not nearly the same thing as today, since there were liberal republicans and conservative democrats – i.e., you could have a very conservative jurist who was still a democrat), who the potential nominee knew – i.e., what Senator you were doing a favor to; and competence. Probably in that order. There was no thought of getting a “strict constructionist” versus a “living constitution” adherent.
And, if you disagree, please cite me some example of a justice, prior to say 1950, being picked for some ideological litmus test. It simply did not happen. And, this is b/c the very way we perceive the Court’s role has changed fundamentally. And, in my opinion, not for the better. Indeed, even a liberal should agree – b/c if the Court ends up majority conservative for hte next several decades, liberals probably will not be happy with the Court making decisions that really ought to be left to congress.
– GB
“regardless of the actual law” is ridiculous question-begging. You say my justices ignore the “actual law”, I say yours do. But beyond that, your point kind of flabbergasts me. You’re saying it’s better to pick judges as a matter of political patronage and back-scratching, than because you agree with their views?
I’m looking at how Jefferson did not appoint marshallians to the court, but Jeffersonians.
1 switched sides. The others—the 4 horsemen of the apocalypse—never did. They moved from being in the majority to dissents.
Justice Holmes and Brandeis were both picked because they were thought to be progressives.
Actus,
What???? Not even sure how to respond to this as it relates to our discussion. Of course Jefferson was going to nominate “jeffersonians”. That is not the same thing as a democrat prez nominating a “living constitution” type today.
As I tried to explain – 1) I don’t agree with you that the economic decisions relate to the kinds of things I am talking about and 2) the very fact that FDR attempted to pack the court shows a completely different attitude toward the court then exists today, thus buttressing my point.
I don’t necessarily agree that they were picked for there ideologies in the same or even a similar way to today’s nominees, but perhaps I was using a bit too broad of a brush in my argument. However, are you arguing that the Court is operating the same as it ever has? That justices were always picked for ideology? That ideology is not used much, much more today than in the past in regards to appointments? That the Court is not viewed very differently then it was viewed in the past? I’m not sure what your argument is.
If it is that everything is hunky-dory with the Court, then I hope to not find you (as a liberal) bewailing conservative decisions if this President or the next conservative president appoints several more justices.
I, for one, would rather not have the Court making decisions outside of their realm – i.e. deciding political issues (i.e., finding new constituional “rights” such as gay marriage). Even beyond the fact that I dislike the tyranny of the unelected Court versus the elected legislature, the more decisions that the courts engage in that they really have no business, the more credibility the courts lose, which is a bad thing for the rule of law. Indeed, I can see a future wherein the other branches of government begin to simply disregard unpopular decisions. Once that happens, the rule of law will be done.
– GB
Why not? Jefferson would nominate people that had his views of a constitution, his views of a constitution subject to majoritarian powers, rather than a guarantor of rights. Of judicial deference, rather than the Marshallian vision of the “the province and duty of the judicial department to say what the law is.”
Those weren’t just economic decisions. They were about national power, about individual and corporate rights to be constitutionally free from regulation.
It was years into depression and chaos. Anymore, we don’t see the court so obstructing what we have decided is the way to avoid a clear crisis.
I don’t think its hunky dory, but I don’t think things are that different than what they were.
THen you’re a big fan of Hamdan and Kelo: both of those decision handed power over to legislatures. Kelo moreso, as it reduced the power of the judiciary to decide what is a ‘public use’ and handed that over to our elected representatives. Welcom to majoritarianism.
Actus,
Sorry, I was referring to them as economic decisions as shorthand, as they mostly had to do with regulating the economy and the commerce clause. Of course the decisions dealt with how much the federal government would be allowed to grow beyond the actual constitution at the expense of the states. Again, tomatoes in my back yard that I grow for my own use somehow are inter-state commerce. If that isn’t outcome determinitive, I don’t know what is, it simply defies common sense.
Don’t know what you mean by this. There are credibile arguments that the new deal actually prolonged the depression, but I really doubt that any argument could be made that the Lochner decision or others like them either created or prolonged the depression. The new deal certainly did not bring us out of the depression – WWII did. So, don’t know what that argument is you are making here.
I would say that “obstructing” in your sense is the same as “power grabs” to a conservative, which would be decisions ike Kelo and potentially gay marriage in the future would be. Which could certainly require some act, such as court packing, to stop a crisis in the minds of many.
I have no problem with majoritiarianism when there is not a specific constitutional provision at issue.
I actually don’t have a problem w/ Hamadan to the extent it says that there is no current authority to conduct military tribunals and that the President has to get such authority from congress. Where the Court overstepped it’s bounds was in its misreading of the geneva conventions and in applying those to AQ. – that was the kind of decision based entirely on outcome determinative idealogical reasoning that destroys the credibility of the Court and the rule of law.
As to Kelo, it was wrong in that it took an extremely clear constitutional provision and completely eviscerated it – again going well beyond the Court’s constitutional authority and using a prefered outcome to interpret the constitution.
I probably could not disagree with your reading of the history of the Court and how the country views the Court, much more than I do.
Moreover, your argument seem to indicate that everything is hunky-dory with the Court’s decisions as long as the outcomes you support are being found. The problem with this approach is that it grants power to the Court that the Court should not have.
When there is a strong majority of conservative jurists on the Court, liberals will regret this exalting of the Court – but most conservatives will have little sympathy for them, as they generally created this beast.
My point is that I would rather that the Court be limited to its actual judicial role, rather than the Court being the end all and be all of the American government. I am pretty confident that someday soon the left is going to be very unhappy at what they created in the current power and reach of the Supreme Court.
If we are going to claim that the constitution only means what 9 justices say it means at any point in time, then we really don’t have a rule of law. We have a rule of whoever the 9 justices are at any point in time.
But, that is where we are. There really is not much that can be done about it without years of re-educating the public as to what the proper role of the Courts is, as well as getting lawyers to drop their “hero” complex (most lawyers, particularly criminal defense and plaintiff’s lawyers, think they are saving society), and get the ABA to turn away from a liberal interest group and back into a professional organization.
The argument i’m making is that the court was frustrating what the elected branches thought was the solution to the depression. I don’t think we have the same sort of crisis today.
Not really. I don’t think things are hunky dory; I’m rather agnostic on Kelo; I think a pretty similar, in terms of process, court gave us Lochner as well as the overturned it.
And if there is a point to what i’m saying, its that it wasn’t the left that created this. Its something we’ve had for a while.
Perhaps a good project for them would be to educate the public.
Anthony Kennedy deserves some of the heat he’s been taking for this, but let’s not get carried away. We can thank him for not joining Stevens’ opinion—in particular, Kennedy’s refusal to sign up for Stevens’ overreach regarding the Geneva convention means that the case nothing more than one of statutory interpretation* (and, as it happens, a political opportunity for Republicans). There are enough other opinions that can be used to hang the “activist” tag on Kennedy, such as Roper, but this isn’t one of them.
*Consider the contrast between Stevens’ view that Common Article 3 of the Geneva conventions was applicable, solely by virtue of the US’ being a party to the Conventions, and Kennedy’s view that Congress’ act made Common Article 3 applicable to the tribunals that were authorized by the AUMF:
“It seems appropriate to recite these rather fundamental points because the Court refers, as it should in its exposition of the case, to the requirement of the Geneva Conventions of 1949 that military tribunals be “regularly constituted” ante, at 69–a requirement that controls here, if for no other reason, because Congress requires that military commissions like the ones at issue conform to the “law of war,” 10 U. S. C. §821. Whatever the substance and content of the term “regularly constituted” as interpreted in this and any later cases, there seems little doubt that it relies upon the importance of standards deliberated upon and chosen in advance of crisis, under a system where the single power of the Executive is checked by other constitutional mechanisms. All of which returns us to the point of beginning–that domestic statutes control this case. <i>If Congress, after due consideration, deems it appropriate to change the controlling statutes, in conformance with the Constitution and other laws, it has the power and prerogative to do so. (Emphasis added).
And don’t knock Kennedy too hard for Kelo—the result in Kelo is correct, but the rationale incorrect—it should have been decided under the Connecticut constitution’s actual takings clause, rather than the imaginary takings clause of the 14th Amendment to the US constitution, an approach which would probably have left the taking undisturbed.
Let’s not become like the Left (that is, outcome-driven and unprincipled) in our approach to jurisprudence. Conservatives’ principled approach to constitutional and statutory interpretation is mostly unknown among the Left (there are a few exceptions, none of whom are on the Supreme Court). There’s still hope for Kennedy—he may yet be able to turn away from the dark side; his opinion in Hamdan shows that there is still much good in him.
Jeff, what politics IS is the effort to prioritize one’s assumptions (or beliefs, or priorities, or agenda).
You can’t take the politics out of interpretation. Politics IS interpretation. Or rather, politics is about the enforcement of interpretation. It’s a means of enacting beliefs – whether they’re as noble as emancipation, or as base as Tammany graft. Politics is about building coalions of support for a set of shared priorities, which in turn are justified by a set of shared assumptions.
To think otherwise – to think that we can write some kind of playbook for Constitutional interpretation that relieves us of the need for politics on the Supreme Court – is, history will show, naive in the extreme. To ask a question like this:
… is to suggest that you’re ignorant of the fact that the Court has always been an ideological battleground.
Nonsense.
I can have a political view without pretending that the constitution agrees with me.
It is naive to think the Constitution has meaning? Because if it is as vague and malleable as you imply it is basically a meaningless document, is it not? I think the whole problem comes with viewing the Constitution as somehow alive. The Constitution is a fence, that constrains a living government.
It’s not naive. It’s difficult. Which are two entirely different things.
Sadly, it has become fashionable to hide this fear of doing the difficult work of coherent interpretation by affecting a hermeneutic sophistication and saying things like “You can’t take the politics out of interpretation. Politics IS interpretation.”
There will always be biases. That is human nature. But it is simply wrong to go from that rather unremarkable observation to the idea that, just because we have biases, we cannot strive to look at things and judge them outside our biases. That is the ideal. And it is the judicial ideal.
My suggestion—that intepreters begin from the same set of interpretive assumptions (that is, they all agree on what it is they are after when they set out to interpret)—is a way to make that ideal far more workable and consistent.
It really is that simple. It doesn’t remove politics, to be sure. But it constrains them by a kind of treaty that proceeds from the idea that the Constitution is the foundational document of governance, that it has meaning, and that it is the role of the judiciary to use the Constitution as it was written and ratified (its intent) as its frame of reference when making decisions.
Jeff, I appreciate your vision for its clarity and internal consistency. The history of American jurisprudence certainly could have gone that way, and probably was like that before Marshall. British courts, for instance, can’t overturn laws. And American courts couldn’t until Marbury v. Madison. Marshall’s opinion in that case is fascinating, and worth a read at least once a year because it is so crucial for understanding what American courts do.
You can make a great case for arguing for a limited holding off of Marbury–one that doesn’t imply the power of judicial review. Jefferson, in fact, favored that reading. But it wasn’t to be.
In America, the courts have the power to say what the law is, and that includes the power to throw out the wrong kinds of law. That awesome power, which of course is not found in the Constitution, is inherently inconsistent with the sort of self-restraint in interpretation that your system would call for.
Much wrong is done with that power, even with good intention. Brown and Roe, for instance. But it’s the path our country has taken, for good or ill, since Marbury.
We say we like debate and compromise, but we are a country of winners and losers, with courts as the referee. And too often, combatants as well.
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