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September 22, 2006


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Kimball Corson

"that the . . " that is. I'm on a bad role and hate proofing. It shows.

Michael Martin

One big problem with trusting a search algorithms: errors are systematic, not random. If you're searching for the wrong things, you'll never find what your looking for. You can make it a little more sophisticated by making it a genetic algorithm, and possibly do better than a human would (at least on that time scale), but you can't trust a computer to do your thinking for you.

But I'm right behind Judge Posner's idea that we should be using BOTH computers and humans to gather intelligence.

Kimball Corson

As for what I propose, I think we should gradually withdraw from Iraq according to a secret time table (regardless of the state of affairs there) and recognize and plan for the typical bum’s rush at the end (as in Vietnam), but only after we have moderated our support for Israel to a firm carrot and stick approach, after telling the world we are changing our policy on Israel and will do so. Let the Arab world determine its own destiny without our meddling. We should get our troops out of Saudi Arabia and Afghanistan after declaring our intentions to do so. We need to understand that terrorist Arabs already view themselves as victorious because we are terrorized and because we are destroying our own laws, institutions and decimating our own purse. We view it as an ongoing war. They think they have already won, though they have not obtained their goals. We should admit our mistakes and fix them. We should keep homeland security in place and adopt a wait and see approach a long time before any partial dismantling of it. We should strongly assist Israel, Palestine and other interested groups to hammer out a peace accord and get back to the road map. We should moderate our bellicosity toward Iran and try to understand their position and ethnic history. It is inevitable the Arab world will get the bomb and rockets to launch it eventually, and we need to set matters right in the Middle East before that occurs. Our current policies endanger Israel and also us. We lack the capacity and will to enforce our inane preemption doctrine. We also lack the capacity to take out Iran’s nuclear facilities and to know what damage we did to their program. If we attack Iran’s facilities, terrorism will substantially increase in the U.S. We need to free Guantanimo prisoners against whom we presently have no good evidence, and fairly and honestly try the rest and not with confessions obtained by torture or violations of Article 3 of the Geneva Convention. We should implement a truly strong program to deal with the post traumatic shock syndrome experienced by many of our troops to aid their transition back to civilian life. We need to strongly and aggressively clean up our messes, abandon programs and campaigns that don’t work, institute new programs and efforts that might and tell the world that that is what we are doing. We need more competence, more transparency and more honesty in government. We need to pay attention to the concerns of our allies, American voters and the true best interests of the country. We need to adhere to the Constitution, national laws and foreign law as well. Bullying nations has gotten us too little, Pakistan excepted. Bullying more often offends and produces results opposite to what we want. We should lead by example and regain the moral high road. We need to realize suspicion produces suspicion, treachery, treachery and deceit, deceit and that people and nations tend to behave in regard to us as we expect them to in many instances. We can do much better than we are and we have been doing. We need to get on with it. This war against the Arab world is doomed to failure for everyone.


a point that seems to be missing in addressing how much privacy "we" are willing to give up is the issue of who "we" are.

it is seldom important who knows what about most of us. we're typically not prominent and therefore are of interest only to relatives, friends, and acquaintances; and we live such conventional lives that it is almost inconceivable that we would ever become a "person of interest" to the government.

but the reason even we boring types should be skeptical of expansions of surveillance over "our" private lives is because of those who are prominent and may very well become a "person of interest". in particular, there is a rich history in the US of questionable surveillance of activists of all sorts, even those who are only exercising their legal rights. my concern is about invasions of their privacy and misuse of the information obtained thereby.

hence, J posner's argument re "voluntary surrender of privacy" is unconvincing to me. while I do in fact readily relinquish my privacy because "there's no there there", I don't want the government whimsically invading the privacy of those for whom this isn't true but who are only doing something legal that I may even champion.


OT to KC: "I'm on a bad [role] and hate proofing." - I'll say! (:>)

Kimball Corson

to OT. Good one. Indeed.


"The Court simply does not like the constitutional power of the Congress to yank certain matters from its jurisdiction"

while you are correct that the constitutional wording has been interpreted by some to allow jurisdiction-stripping, my impression is that the issue isn't nearly as cut-and-dried as you suggest. taken to the limit the fed court system ceases to function as we have known it (and given the increasing number of j-s attacks, that isn't as far-fetched as one might hope). so how does one tell when j-s has effectively eliminated the appelate jurisdiction of the fed court system, which presumably would be unconstitutional?

also, how far can it go before it effectively eliminates the checks on majority rule that the constitution was intended to include? and if your answer is some version of super-textualism (as opposed to the "pseudo-textualism" of, for example, J scalia), then I would ask if you will really feel comfortable living in a society in which the only mechanism by which relatively popular oppression of a minority can be countered is something extreme like civil war (which was, of course, required in order to effect a timely end to slavery by constitutional amendment, the preferred method of even those wishy-washy "pseudo-textualists")?


Thanks, Roach, for supplying the answer to my question. Unfortunately, your answer raises even more questions. You write, "Our system never intended to enshrine the courts as the final word on anything" Where does Marbury v Madison fit into that statement? While I agree that the section from Article III that you quote seems to give Congress complete power to eviscerate the judicial branch, that power seems to have itself been destroyed by Marbury v Madison. That is, if the judiciary does have the power to reject any governmental action as unconstitutional (a power it has asserted and has been acquiesced to for two centuries), then the judiciary could declare any attempt by Congress to limit its jurisdiction as itself unconstitutional. And in fact, I have read some commentaries on the Detainee Treatment Act that suggest that the court will come to precisely that conclusion in that case. I suppose that we shall have to wait and see. Whatever the outcome, I'll not be dismissing the Supreme Court justices as twits and I hope you'll be just as respectful.

I'd also like to directly address a point to Mr. Hamilton. Twice (or was it three times?) now, you have asserted that we are at war, even though Congress has explicitly refused to declare war. You assert that the AUMF is a declaration of war. For the third time I remind you that Congress could have declared war and chose not to. For the second time, I ask you: under the terms specified in the Constitution, are we legally at war?

Kimball Corson

But Eras, as I have explained, we don't do things legally. We just do what we want.


"Where does Marbury v Madison fit [in?]"

given mr roach's meta-position, which you quote, I think it's clear that he considers it judicial overreach. that's why I ignored it and went straight to questioning the practical effects of "eviscerat[ion]". after all, if one holds several centuries worth of justices in such contempt, including current conservative idol J scalia, what weight would one likely place on the opinion of some old f*** from the 1800s?



I don't disagree with Marbury per se. I favor Lincoln's view which, as I understand it, respects the court's power over particular cases brought before it but whereby the executive continues to follow it's own view of the constitutionality of a matter going forward, particularly if it's in flux. I think Jefferson said it best in a letter to William Jarvis in 1820, "The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments coequal and co–sovereign within themselves. If the legislature fails to pass laws for a census, for paying the judges and other officers of government, for establishing a militia, for naturalization as prescribed by the Constitution, or if they fail to meet in Congress, the judges cannot issue their mandamus to them; if the President fails to provide the place of a judge, to appoint other civil and military officers, to issue requisite commissions, the judges cannot force him."

So, in short, I think courts are within their rights to declare particular government acts ultra vires and unconstitutional when those matters have been submitted to the courts and the final decision has been implicitly accepted in advnace. But I think if it's worth the prestige battle, and when vested executive or institutional rights are on the line, then the Congress or the Executive or both should simply ignore the Court and refuse, for example, to attend or pay any attention to a case involving, say, a foreign enemy combatant held overseas. And this, far from being an invitation to lawlessness, is just as lawful as things like resisting an illegal arrest or some other deliberate act of force that resists what can only be called the Supreme Court faction engaging in force and, worse, unlawful force outside the scope of its delegated and historical powers.

PS This stuff about how I need to respect the Court when it does not respect the sovereign people--remember them, as in "We the People--and their elected officials' sovereign acts is laughable. I don't respect would-be tyrants, and that's what a goodly portion of the Court has been since at least *Carolene Products.* I don't think they're twits. I think this faction on the Court is evil.

Frederick Hamilton

It is wonderful to watch the beauty of our founding fathers unfold. Roach is blaspheming to the lawyers, but speaking constitutional truth. We the people are the ultimate arbiters of our laws. Witness what almost 40 state legislatures and state voter initiatives are doing to Kelo. The same with constitutional amendments. They tell the Supremes exactly what the law is as per the wishes of the people.

No doubt the legislative branch can determine jurisdiction of federal courts up to and including the Supreme Court. Obviously the constitutional provision to allow Congress to set rules for the court meets its limits when the jurisdictional proscriptions conflict with the constitution and its amendmendments. Then there is the proverbial "constitutional crisis". In my lifetime I have never witnessed a constitutional crisis but I keep waiting to see one to see how our Republic holds up to the "crisis". The old Pres Jackson dictum, "they ruled, now let them enforce it".

I wish Congress would tell the Supremes they have to open their proceedings to the public and allow television cameras in the Supreme Court. The public deserves the ability to scrutinize the black robed. It would have been fun to see a Justice fall asleep during oral arguments before the court. TV might keep them awake. Men and women of Supreme calibur shouldn't be afraid of bringing their court proceedings into the light of day. The great disinfectant and all.

At the end of the day, the tensions and arguments between the three branches serves the American public well. But, Roach is correct, it is "We the People" who have the ultimate say on our laws. If we get exercised enough over Kelo, we'll change it. If we want marriage to be only between a man and a woman, we'll determine that. If we want "under God" to stay in the Pledge and "In God We Trust" to stay on our currency, we'll determine that. It is difficult to amend, but the Constitution is "our" document. Not the Supermes, Not the Congress's, Not the President's, Not the Lawyer's. Ours.


And who, Mr. Hamilton, is "us"? Is "us" 50%+1 of the representatives in office at any given moment? Is it 50%+1 of the voters in any single election? Is it 50%+1 of the citizens at any given moment? Is it 50%+1 of the campaign contributors for any given election? Is it two-thirds of the legislators? What about past generations of Americans? If two-thirds of last years' voters pass a law, can 50%+1 of today's voters overrule them?

The judiciary is by no means anti-democratic. It provides a temporal averaging function, integrating the will of and wisdom of past generations Americans with the will and wisdom of the current generation. The decisions our generation makes will profoundly affect unborn generations, just as our own lives are profoundly affect by the decisions of past generations. The task of the judiciary is to insure that the decisions of past generations (as written into past law) are given proper inclusion into our current legal structure.


"I don't respect would-be tyrants, and that's what a goodly portion of the Court has [become]"

well, it basically boils down to faith in people: those who who have faith that nine SC justices, trained in the law, outstanding in their field, nominated by presidents with diverse political philosophies and confirmed by a heterogenous senate, who have to argue in detail the reasoning (right or wrong) for their opinions, etc, pose the lesser threat to liberty vs those who have faith in the will of "the people", astoundingly large percentages of whom don't know the orbital period of the earth, think we were plopped down on earth as-is less than 10 millenia ago, believe in biblical inerrancy, think WMD were found in iraq, think "we the people are the ultimate arbiters of our laws", etc. as an unabashed intellectual elitist, I'll go with the "smart" folks every time, while recognizing that there are no guarantees - it's a gamble either way. but shouldn't one make the odds-on bet?

the question is whether we want preserve our current constitutional democracy - as designed by the founders - in which the majority is NOT the ultimate arbiters of our laws. before scrapping it, one might want to play the rawls "veil of ignorance" game. imagine that you are very rich, very poor, very old, an ethnic or racial minority, irreligious, or gay. would you really want your fate decided by a simple majority of the above described voters? as someone who doesn't have to imagine - I am in one of those minorities - my answer is easy.


Frederick Hamilton

Gosh, Eras, I thought you knew the "us" is as defined by "our" constitution. The rules are there for you and I to read. It is a wonderful, short, well thought out apporach to governing. The Supreme Court and the lesser federal courts have a large function in our governing. What they don't have is the last word. I know that makes many of you apoplectic but sorry, those of you who know everything get to have your views approved or trumped by "the people". If that bothers you, get a life.

Sorry, properly applied and defined by our Constitution the people are the final arbiters of our laws. I find it astounding that so many bright lawyers don't know that. I suspect the "We the People" aspect of our government is downplayed in Consitutional law classes. Too bad. Pretty ignorant of the Constitution. As to Charles, who said "simple majority". I didn't. I said and am correct that we the people are the final arbiters of our laws. If the intellectual elite you talk about can't grasp that, it make me wonder how intellectually elite you really are.

No, our Constitution is quite fine and safe. The thoughts of presumed experts on the law might not be so fine and safe. How ignorant of me to think that the final arbiters of the Supreme Court, Congress and the Executive was "We the People". I must be a nut case.

Kimball Corson

Frederick writes, “. . .properly applied and defined by our Constitution the people are the final arbiters of our laws. I find it astounding that so many bright lawyers don't know that. . . . I suspect the "We the People" aspect of our government is downplayed in Constitutional law classes. Too bad. Pretty ignorant of the Constitution.”

I respond: This simply is not true. There is no way, through their elected representatives or otherwise, that voters can decide what our laws are. The project is way to complex, varied and nuisanced for that sort of approach, even as to the most basic constitutional law. Roach misleads the likes of you when he makes comments like all criminal law devolves down to a consideration of what is reasonable. Try taking that basic axiom into the criminal court system to practice law there and you will find yourself sawed off at your knees instantly. Law is a complex business ill understood by most, including too many lawyers, most of whom lack Geof Stone’s sense of and competence with legal history. Astute laymen know just enough to be truly dangerous and get it wrong most of the time, believing deep down the law is all politics and what they want it to be and that it has no internal principles or integrity. The Bush Administration likewise promotes that impression by its lawlessness and disregard of domestic and international law and of the Constitution. The analogy here, to demonstrate the lack of grasp, is to tell a brain surgeon there is nothing to his craft to remove a brain tumor: just cut and peel back the skin, saw through the skull and take out the tumor. Anyone can do it.

Frederick again: “ . . . I said and am correct that we the people are the final arbiters of our laws. If the intellectual elite you talk about can't grasp that, it makes me wonder how intellectually elite you really are. No, our Constitution is quite fine and safe. The thoughts of presumed experts on the law might not be so fine and safe.”

I respond: The people are not generally the final arbiters of our laws. The Supreme Court largely is and has been and its members are not elected. Until now, Congress has not really seen fit to compromise the Supreme Court’s jurisdiction in order to make it, and somewhat derivatively, the people, the final arbiters, but there are serious questions about whether Congress may do that in regard to constitutional issues. I do agree with you that our Constitution is fine, but I disagree with you that it is safe. This administration has alternatively been ignoring, hammer on or misconstruing it since day one because in lawless fashion it simply wants to do what it wants to do . . . period.

Frederick Hamilton

Your hedging with the "I respond: The people are not generally the final arbiters of our laws. The Supreme Court largely is.."

The voters through their elected representatives CAN decide what our laws are. They do it every day. Sometimes with horrible laws but that is another discussion.

Certainly the people are not "generally" the final arbiters of our laws. That in the vast, vast, vast majority of cases rests with the Supremes. But, when aroused or concerned enough the "voters" can speak with a loud enough voice to either get a law changed (look at Congress and the mandate the Supremes gave them with the Hamdan decision regarding military tribunals) or the people can change it themselves by amending the Constitution. The Supreme Court cannot amend the Constitution (some people think they do by their interpretations but that also is another topic), the Executive cannot amend the Constitution, the Congress cannot amend the Constitution. Only "We the People" can amend the Constitution. So why again are not "us" and "We the People" not the final arbiters of how we want our government to function. Now admittedly I am not a lawyer, but still, the Constitution is not that hard to read. What am I missing?

Having said all of that, I agree the law is complex and I love that. The complexity gives us more liberty. Once again the framers were pretty cool and smart. Sometimes those in the forest (lawyers) aren't the only ones who can see the trees.

Kimball Corson

Your views on the Court, the balance of powers and which branch has or can take what powers from the others is radical in the extreme. I appreciate that you don't like many of the Court's decisions, including Hamdan, but as a lawyer you thereby wind up placing yourself in the same position as Frederick on too many of these issues, tromping down the moral low road in a legally radical and ahistorical fashion.

Frederick Hamilton

C'mon Kimball,

Roach isn't radical in the extreme, especially given that the lad seems to share some of my thoughts. It is not a moral high or low road to articulate positions that disagree with yours. True, it is a bit radical to simply ignore the court and not abide by their decision (in the main). I do agree with Roach that the seperate branches do allow for disagreement and an ability of some sort not to abide by the thoughts of one branch related to the other. I am still waiting to witness a true "constitutional crisis". Somehow, I don't think I'll ever get to see one.

Should a President go too far out on that limb of ignoring Supreme Court decisions it could get pretty dicey. Bush, has said he will abide by Hamdan. He has. So is Congress. When the Supremes told the legislative branch that if military tribunals are to be legal to simply pass a law to that effect, Congress is going to comply. Seems pretty rational on all branches so far.

Just like Doctors may have antipathy to patients telling them what to do and who is the ultimate arbiter of their health, Lawyers don't like to hear that lay people are the ultimate arbiters of the law. I understand that. Human nature. Better get used to it. It is called America and "We the People" get to call the final shots.

Kimball Corson

I think that fairly stated the process is that the voters variously, and often inconsistently, express their concerns about and the basic directions that they think the law should take, Congressmen and women respond to that as they think they should, technical staffers draft proposed laws as generally directed and Congress accepts or rejects them by it law making function. If passed, and the President signs the legislation into law and does not veto it, those laws can wind up, by lawsuits, being reviewable by lower courts and sometimes the Supreme Court for constitutionality, consistent application in the various parts of the United States or where of particular importance. Depending on what the Court does, Congress may simply accept the result or it may readdress the law and fix or expand it in proper fashion, with general input from the constituencies involved and the process may repeat itself. That is the mechanism working as it should. The people don’t really make the laws; staffers, Congress, the President by not vetoing and sometimes the Supreme Court or lower courts do. It is a complicated, nuisanced and messy business, even when well done and everyone understands his or her role. And as you suggest, Congress and the legislatures of the various states can, under stringent conditions, amend the Constitution. The legislatures of the various states do not get a shot at amendment unless Congress passes the amendment by the majority required. The people per se do not amend the Constitution. The people can provide some general direction but only when their voice is not unduly fractured or divided on an issue. Division gives Congress more license to do what it wants, absent threatening constituencies or lobbyists. Swaps and trades often govern the legislative process, which like the making of sausage, should not be watched by principled people. Finally, the Constitution really is very hard to read because much law, developed over many years by federal courts at all levels, is read into and around it to give it substance and its meaning in various particular situations. It is not easy and many do not understand these myriad aspects of the law very well.

Frederick Hamilton

Process understood. Messy is a kind word and I suspect even making sausage looks quite scientific compared to law making. I just cling to this antiquated notion that our representative form of government doesn't give as short of shrift to the people as some in the legal profession seem to hand out.

Again, I don't think it is lip service to say that authority of any branch of government is wholly dependent on the consent of the governed.

Sometimes even the complex can be simplified to an understandable standard. So it is with "We the People". All branches of government ignore the collective will of the people at their peril. This new concept of the collective wisdom of the masses is what the founding fathers called Democracy.

Kimball Corson

Frederick, You and Roach are legally and conservatively radical by a considerable margin and our government is taking steps you both approve of which put us on the moral low road in the eyes of many of us and a large majority of others in the rest of the world. Because he disagrees with the Court not infrequently, Roach proposes pulling out all the stops in an effort to neuter it and destroy the balance of power between the three branches of government. Hopefully saner heads will prevail and it won’t come to that so constitutional crises can be avoid, but there are pending in latent form several such crises, depending on how you define them. The Fourth and Sixth Amendments are seriously under attack and too much other law has been ignored and violated with less than good consequences. For example, while Bush says he will abide by Hamdan, his proposed legislation and the accord reached still will allow torture by the CIA in clear violation of Hamden and article 3 of the Geneva Convention and the proposed emasculation of habeas corpus rights and the confrontation clause in the proposed military tribunals are still alive and well. So Bush and Congress really are more involved in serious double talk on these and other scores and in truly abiding by Hamdan. These are rather clear constitutional violations but it will take time to establish that and Congress wants to revoke the jurisdiction of the Supreme Court with which it and the President disagree to review these matters and say so. This is a constitutional crisis in the making particularly after ignoring Hamden in fact. Very sleazy on the part of Congress and the President.

Kimball Corson

". . . than in truly abiding by Hamdan . . " that is. I have got to start proofing before instead of after I comment.

Kimball Corson


When the people do not agree about what should be done on a particular matter, it is hard for their honest representatives to know what to do. This is when blocks of political power form around the principle positions in the political arena and whatever the legislative result, many are upset. A small majority can tyrannize a large minority and then democracy really stinks, as articulate Arabs are quick to tell us.

Frederick Hamilton

Your views about violations of Fourth and Sixth Amendments are of course not ruled on yet. With Judge Taylor's decision, they are in the pipeline. Inconceivable either Bush or Congress won't abide by the Supreme Court. Some pretty bright people on the staffs of Bush, McCain, Justice, Warner, et al are working on Hamdan. The U.S. does not torture. It is inaccurate to say that an agreement regarding Hamdan will allow for torture. That is a partisan canard.

So Congress and the Prez are sleazy. Tsk Tsk. A little partisan again.

Once again we get to watch the Constitution at work. Messier than sausage making. But a satisfactory end point will be arrived at. The sky isn't falling. America doesn't have institutionalized approved torture. If you have facts of torture (other than the humiliation of Abu Grahib) bring it forth. Just heard today the Army is courtmarshalling 4 soldiers for murder. Why would a government as sleazy as ours do such a thing? Wouldn't a sleazy government give the 4 soldiers a medal?

No, most of America knows who the torturering folk in the world are. Gitmo is paradise compared to the folks who handled Danny Pearle et al. Doesn't wash Kimball.

How would you handle Shaik Mohammed Khalid, the orchestrator and mastermind of 9/11 now at Gitmo? Criminal trial? All rights of discovery allowed to American citizens accused of a crime by the U.S.? Military tribunal? Do you think the agreement reached by McCain, Graham, Warner and Bush allows torture? Are the prisoners at Gitmo being mal-treated? Do terrorists attempting to kill Americans on American flag airlines have Constitutional rights against search and seizure?

All of the above is the proper venue of the American people and the political process. Don't worry, be happy, the Constitution lives and works. Taylor will be overturned :-) Peace.

Oh by the way, I would love answers to the above questions.

Kimball Corson

The Predident's bill AND the Congressional compromise both permit CIA "torture" or more specifically, clear violations of Article 3 of the Geneva Conventions to obtain information (but not by the military). They also reject the confrontation clause, allow for a new hearsay rule for secret evidence obtained in violation of article 3, and deny habeas corpus petitios to prisoners, as well as preclude Supreme Court review. These are in direct violation of Hamdan. Those on whom they have no evidence will sit in prison longest with out a right of habeas corpus. You have been taken in by the deceitful double talk by all concerned.

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