Slap
I disagree: constitutional jurisprudence is really just that easy. The administrator’s position has failed to address the nature of judicial authority. Once again an apparently legally trained interlocutor has failed to discuss that thorny problem of justifying the power you exercise. Is this the fruit of the lamentable state of law school education i.e. “law school philosophy”, or just hesitancy in proximity to the abstract? As a Neuroscientist, like any other informed citizen, I do have an ox to be gored. I do not wish for a corrupt judicial philosophy to enable marginally educated hacks to dither away my rights both as an individual and as a potential member of a legislative majority. How nice Justice Breyer is, is really beside the point. Good manners and congeniality do not make up for lack of epistemology.
With regards to the practicalities of constitutional jurisprudence, you must determine a hierarchy of values to guide your application, and the primary value is that your actions must have authority and not just institutional power. If this threshold is not met you may not exercise said power. It is no justification for the exercise of judicial power to displace legislative majorities by stating that a Constitutional phrase “must mean something”. Judicial interpretive theory and judicial action must be made commensurate with the political theory that justifies its office: the democratic principle and the nature of sovereign authority that rests with the people. Strict constructionism means that judicial interpretive theory must be “restrained” in the face of ambiguity. It is the only theory that is apposite with the political philosophy which informs our political theory that in turn lays down the foundations for the ultimate sovereignty of the people when exercised in conventions. I eagerly anticipate an argument that establishes authority of a judge to depart from the Constitution. But these are never forthcoming. All rationalizations for unmoored jurisprudence point to how difficult strict constructionism is, especially when a judge can do so much good. Strict constructionism isn’t a conservative doctrine, its simply a fundamental legal doctrine that is necessary for a people who endeavor to govern themselves by the rule of law and not men.
On another note, I disagree that certain constitutional phrases are so ambiguous as to mean nothing. It’s laughable that one would suggest that a mere 200 year old document from our same culture and tradition is bourgeoning into meaninglessness. Please cite me your linguistic anthropological source supporting this position, not another very nice lawyer. This position strikes me as law school rumor passed on by those enamored with judicial power. I regularly read 2000 year old texts in classical Greek and can discern their meaning. Moreover, Neuroscientifically mind you, it would be evolutionarily impossible for our species to have evolved were we not be able to communicate our thoughts and intentions to our contemporaries and succeeding generations. I’ll address Darwinian Jurisprudence in a later post.
Bryer and the judicial transcendentalists
What is required here is for a discussion of the nature and sources of Supreme Court’s authority as distinguished from exercise of a judicial-like power. Bryer argues as if this question is not relevant and Scalia touches upon it obliquely. Bryer’s position is that judicial power can be exercised to almost any extent so long as a justice tells everyone his/her reasons. Apparently if you’re a really good person and candid as to your motives you can reach almost any position. How this acts as a limitation or is even distinguishable from the despotic exercise of power is a question I lay aside for now. Scalia rightly questions how "candidness" acts as a limitation. He notes that decisions by legislative majorities that go so far, and no further, represent compromise and bargaining, and thus represent as much a part of the legislative will as the generalized “purpose” Bryer purpurts to divine. But what is painfully absent in Scalia’s rejoinder, is a discussion of why a judge is limited by a given statute’s purpose to begin with. In my opinion, this leaves these two Justices arguing past each other, and perhaps the failure to address authority is why this rather simple issue remains the point of so much contention.
The nature of our SC’s authority in our tripartite democratic republic is that it invokes a document adopted by the supreme sovereign will against statutes representing the will of temporary majorities. The institutional structure through which the temporary legislative will and judicial judgment is exercised is created and limited by the design of the document adopted by the supreme sovereign authority: the people. Therefore, and it follows very simply, the authority of the SC’s power to limit legislative will derives exclusively from its function of applying the letter of supreme law, The US Constitution, to statutes passed by legislative majorities. To the extent that a judge replaces his/her view in place of the constitutions text and structure, and irresistible inferences therefrom, then that judge is exercising judicial-like power but not authority. This isn’t rocket science.
Predictions: GOP keeps it all!!!!!
I have consumed the polls and have listened to the pundits. The intangible is turnout. My intuition tells me that its very easy to sit at home receive a phone call and state that you want change, or you hate the President. What’s a little more difficult is actually translating passivity into action. You have to drag yourself to the polling booth after all and the vaunted generation x’s or y’ers never seem to make it. Who are these polling firms polling? Stay at home folks with no cell phones and caller IDs? I admit that I am influenced, nay, predisposed, to lean toward the optimistic slant for the GOP. But my intuition is not rooted in a fantasist’s dream of looming utopias. I take the world as it is and see how it can best conform to first principles. I believe most people are the same.
The GOP voter is a little more serious individual than is the Democrat. A clash of civilizations is at hand and this underlying motivation with the mechanism of Rove’s get out the vote skills will keep both houses under GOP control.
As I write the GOP generics have pulled within 6%, and even Chafee in RI is now up by 1%, and Burns has caught Tester in MT. These should all be blow outs for the Ds…but they are not. Democrats are celebrating too soon and the Press is fanning the flames of this premature gala.
The Iran Factor takes hold
The coalescence of the varied and related national security issues that face the national leadership, galvanized by Iran the specific catalyst, has now had the salubrious effect I predicted it would on the GOP. We are up in the polls and there is no end in sight!!!!
The Iran factor
So it has come to pass. We face another exercise in self-government looming in the not to distant future. This time a confluence of factors make it impossible to analyze this election as run of the mill standard faire. We are at war. I believe that the current unease detected in the polls reflects an anxious populace just now confronting the realization that we are at war with an Islamic fascist enemy embodied by Iran. As the campaigns move into high gear we cannot lose sight of the contemporaneous event now winding through the UN: the confrontation with Iran over WMD.
There, the global community will finally bring concrete measures against Iran for its obstinacy on nuclear weapons development over the last 5 years. No one seriously believes that, spurred by diplomacy, Iran, will suddenly undergo an epiphany and say, “oh, your right…never mind”. With respect to our mid-terms, this means that all the implications of a nuclear Iran can and will be laid before the world and American people. Sort of like a two month long issue ad for the GOP. All the implications of a weaponized Islamic fascist community, with every inference and extrapolation, will be set before the American people in November. I can see no more advantageous context in which the Republicans could dream of running an election.
“It’s the War Stupid”. Consider this: The Ds leadership is on record as supporting cut and run from Iraq, against NSA operations, against Guantanomo Bay, in a word, against every aggressive war time measure to effectively prosecute the war on terror. And that’s just it. The GOP can hammer this basic point: Are we at war or not? To answer in the negative leaves the impression of childish fantasist. Even worse, a remarkably obtuse and dangerous childish fantasist not willing to heed the Islamic fascists own words when they say they are at war with western civilization.
The GOP, in the body of the President, must herald “We are at war, and who can you trust to protect you more”. Consider the natural coalescing around the Commander in Chief as he begins the War Drums against Iran. Also, consider the strategic advantage that Iraq and Afghanistan will serve as launch sites for heavy bombardment of Iran. These incursions will seem brilliantly prescient from the perspective of D-Day Iran. After all, Bush knew America might very well have to go to war against Iran so he had the forethought to place US forces in the most advantageous posture, but still give diplomacy every chance it deserved. And you can bet that the American people will see it that way too. All this will be undisputed as the Ds can only advance their Lamont appeasement candidates. There track record has been to oppose everything. They predicted doom with the first sandstorm on the road to Baghdad in 2003. How will the Ds respond when the issue is “how will you prosecute war against Iran?” Bush’s brilliant strategic thinking has unfolded from the single un-rebutted assumption, nay, conclusion: We are at War. The GOP has to close the deal with America. We have to say in unwavering words: Voting for Democrats will get you Killed!!!!
Bush prevents the second 9-11
So lets all get this chain of causation straight. The condition precedent to 9-11 was a lax security environment and a failure of imagination in anticipating threats. This laxity was the responsibility of the Clinton Administration, as Clinton failed to appreciate the threat to the point of erecting legal barriers to communication between our preeminent intelligence bureaucracies. The 9-11 commission, for all its flaws, does reprimand our political and law enforcement communities for failing to “connect the dots” where a more attentive posture may have allowed officials to step in and actually prevent 9-11. It is clear now that George Bush has just prevented the second 9-11.
The Bush administration has instituted all the imaginative and aggressive policies necessary to “connect the dots” and has paid a political price for doing so. The NSA programs and related measures have been efficacious ferreting out terrorists. Had these measures been in place before 9-11, it is safe to say Bush would have prevented 9-11. How can a venture such a hypothesis? Because as the facts are coming in on the 8-10-2006 arrests in Brittan, Italy, Pakistan, they show that Bush’s intelligence apparatus played a key role in discovering the and interdicting a huge 9-11 like attack on American bound flights. In sum Bush prevented 9-11!!!
The leftist opportunist Democrats who care nothing for the security of this nation point to the tranquility of our country and claim that this shows there is no need for Bush’s “Hitleresque” tactics. But as is obvious to anyone with a shred of objectivity, America’s relative terror free environment is due in part to Bush’s aggressive security measures. History will judge George W. Bush as one of the top 5 presidents. He is truly a great man.
Proud Of the West
Bush and Blair made me quite proud today. It seems as if they truly are acting upon the strategic vision laid down by the President through successive NSC Strategic Defense Initiatives. You can simply not analyze the current global security condition without understanding the key point: We are in a war with a death cult ideology that is masquerading as the Islam religion. B&B are consistent in seeing opportunity in the overreach of our foe. Wretchard has provided a key analytic contribution by noting that terrorist should never seek to hold territory as a military objective. Yet this is what they are left doing...and getting soundly thrashed. They reality on the ground will drive the political winds. There is no Arab Street, at least since the 6-day war, and there will never be one again. If anything the Arabs are the easiest to predict.
The looming 11-2006 election season will display the advantages B&B’s strategic approach has for the GOP. I am convinced that the American left cannot come to grips with Bush’s key strategic insight, because they are just soooo much smarter then the President. Thus they, and all their really smart friends, will not be able to provide a coherent or efficacious alternative to Bush. In fact their criticisms can lack any argument because it can be assumed that they have really good reasons: the kind that Joe 6 pack, who cares only for his family’s safety, couldn’t begin to fathom. Its Bush’s Fault!!!! Alas it’s not so easy because the current state of affairs is not the result of Bush’s proximate aggressive policies; rather it is the result of the terrorists believing that they might prevail with a tried and tested method that has garnered consistent rewards against a limp wristed diplomatic approach. The very diplomatic heavy approach adverted to by the left over and over again.
In sum, terrorist [T] merely undertakes some violent action against Israel and when the IDF finally responds in force, T simply screams for the inhumanity of their plight and a suspiciously sympathetic world community runs to T’s aid. T then is provided with a “buffer”, some aid, and obeisance showing the sincerity good intentions of their benefactors. T the uses this hiatus to rebuild and retool and enjoy the vast PR advantage they have over Israel. But in a post 9-11 world this re-tooling phase can provide T with extraordinarily powerful weapons. And as the current situation shows, T can obtain and conceal such weapons until the minute they choose to use them. This is an unacceptable risk in post 9-11 WMD world. A strategic assessment understands that a hostile state power may deliver, or rather is highly likely to deliver, WMD into the hands of such undeterable proxies. The US will face this situation if we fail to defeat this enemy now. The left can show no leadership in this regard because it cannot grasp the simple strategic vision that the President has understood 1 minute post 9-11. The elections in 2006 will be fought on the competing visions of how to prevail in the WOT, and frankly the Democrats look weak! Because they lack urgency, nay, lack the will to come to grips that we are in a war. Never forget electing Democrats will GET YOU KILLED!
