"Not a Suicide Pact": Round Two

Debate Series: Stone Offers A Proposal

I don’t agree that the public “has already surrendered much of its communicative privacy by its profligate use” of modern means of technology that “create essentially indelible records” of our communications, purchases, etc. Certainly, it’s true that most people have embraced cells phones, email, and the internet without paying much, if any, attention to the extraordinary invasions of privacy they make possible. But this will change once people come to understand how vulnerable they are. It’s a bit like electronic bugging and wiretapping in the first half of the twentieth century. It took fifty years for courts and legislatures to begin regulating such conduct, but once people realized the danger, government electronic surveillance was declared unconstitutional and private electronic surveillance was declared unlawful. The same will happen with respect to the modern means of communication. Once people recognize the danger, they will insist on regulation. So, I wouldn’t leap to the conclusion that the public has “surrendered” its privacy. We are merely in transition.

(again, rest of Stone and response from Posner after the jump)

Judge Posner suggests that “the essential protection against governmental abuse” must lie in rules that (a) forbid use of the information “other than for national security purposes” and (b) require oversight by congressional committees and neutral agencies. Recent experience teaches that such safeguards are porous, at best. It is useful to recall that one of the bete noirs of the Bush administration was the so-called “wall” created by the Department of Justice to prevent information obtained in lawful foreign intelligence surveillance authorized by the FISA court from being used for anything other than national security purposes. The purpose of the “wall” was to allow the government special flexibility in foreign intelligence investigations without creating an incentive for the government to “cheat” by using FISA warrants for ordinary criminal investigations. The “wall” was one of the first safeguards abolished after 9/11 because it was attacked as perverse. Of course, it wasn’t perverse at all. To the contrary, it served exactly the function that Judge Posner now urges. But the “wall” crumbled as soon as pressure was placed on the system. And oversight is hardly a panacea. Congressional oversight since 9/11 has turned out to be meaningless, at least at a time when the executive and legislative branches are in the same partisan hands.

Nonetheless, there is a compelling need for some form of surveillance that is broader than what would be permissible under a strict probable cause regime. In Not a Suicide Pact, Judge Posner offers an interesting suggestion: “Suppose that the National Security Agency’s listening devices gathered the entire world’s electronic communications traffic, digitized it, and stored it in databases, where it was machine-searched for clues to terrorist activity, but the search programs were designed to hide from intelligence officers all data that contained no clues to terrorist plans or activity.”

This might be the foundation for a compromise on which Judge Posner and I could agree. Suppose the NSA were authorized by legislation to intercept (in the sense described by Judge Posner) any international electronic communication for which it has reasonable grounds to believe that a participant in the communication is associated with a terrorist group. (The terms of course would need to be defined.) All such information would be digitized and stored (for a limited period of time), but could not be examined by any intelligence officer without probable cause. Probable cause could be determined either in the conventional manner or through the use of an algorithm that enables computers that search the database to determine probable cause based on words, phrases, personal connections, etc. In a sense, this is like a drug-sniffing dog, where the algorithm is the dog.

It is easy to imagine such algorithms. For example, it would be quite possible (I would imagine) to develop an algorithm that would determine based on the content and nature of messages whether there is probable cause to believe that a particular individual is a lawyer, or a doctor, or a psychotherapist. (How often does she use phrases like res ipsa loquitur and mens rea?)Presumably, it would also be possible to develop an algorithm for terrorists. The FISA court would have the authority to approve and review the use of such algorithms after hearing expert testimony.

Such a program would both substantially increase the ability of the government to identify terrorists (relative to a conventional probable cause standard) and substantially reduce the dangers of invasion of privacy and government abuse (relative to the NSA surveillance program). Moreover, I would add to this system Judge Posner’s proposals for a “wall” and for various forms and levels of oversight. I would be very interested to hear Judge Posner’s response.

Debate Series: Posner Responds to Stone Proposal

I am sympathetic to Geof’s proposal (though it doesn’t go as far as I would like), but before discussing it let me register disagreement with three points, closely related to each other, that he makes:

1. I don’t think the surrender of privacy to companies is based on ignorance. After all, Geof and I are among the surrenderers, and I daresay most members of the ACLU are as well. I think it’s based, first, on the fact that Americans don’t actually value privacy as much as the ACLU thinks, and, second and more interesting, that they don’t worry a great deal about companies’ invading their privacy because they realize that the purpose of the invasion is benign: it is to be able to sell consumers more products better matched to consumer preference. They do not have the same trust in the benignness of government surveillance. Nor should they, because consumer sovereignty does not describe the relation between government and the people. It is naïve to think that American-style democracy securely aligns popular preferences with the incentives of government officials and employees, whether in national security or any other domain of governmental activity. That is why I would couple extensive electronic surveillance with the two protective measures that I mentioned in my first post—forbidding use of intercepted communications for any purpose other than national security (and thus limiting, as Oren Kerr has proposed, the “plain view” doctrine of search and seizure law), and requiring that the details of each interception (who, why, what, and with what consequences) be reported periodically to watchdog committees in Congress, to the GAO, and to departmental inspectors general.

2. Would these controls be perfectly effective? Of course not. But then nothing is. I do not, however, consider the notorious “wall” that Geof mentions to be analogous. I must say first of all that I have never been able to determine whether there was a wall or, rather, whether it was simply a matter of the FBI and the CIA being unwilling, for bureaucratic reasons, to share information. The sharing of information between government agencies is impeded by the fact that one agency cannot sell its information to another; it can only swap; and barter is a clumsy method of exchange. But there is in any event a huge difference between, say, the CIA’s failing to give the FBI information about a terrorist that might have enabled the FBI to arrest the terrorist before he flew a plane into the World Trade Center, and the CIA’s (or more likely the NSA’s) failing to give the FBI information about a nonterrorist that would enable the FBI to prosecute the person for killing an animal on the endangered species list.

3. Congressional oversight of intelligence and related national security programs has always been weak. I don’t think it has made a difference whether Congress was controlled by a different party than the presidency. It is weak, as I explain in chapter 8 of my book Uncertain Shield, partly because congressional oversight of the executive branch is weak in general, partly because members of Congress tend to focus on domestic matters, partly because few of them have much knowledge about intelligence, and partly because oversight is split up among a large number of agencies, owing to the fact that the agencies themselves are distributed across a number of departments. I do not agree, however, that Congress is a mere rubber stamp, even when it in the hands of the same party as the presidency. We have seen this in recent months and weeks as Congress and the President have tussled over military tribunals and electronic surveillance.

Coming now to Geof’s proposal, I understand him to be suggesting that the NSA be authorized by new legislation to intercept international communications if there are reasonable grounds to believe that at least one of the parties to the communication is a terrorist. The restrictions I have italicized strike me as too limiting. If two terrorists inside the United States communicate with each other, the interest in intercepting their communications is as great as when one of them is overseas. And, as important, it is not possible to discover who the terrorists are if before intercepting their communications you must have reasonable grounds to believe that at least one party to a communication is a terrorist. What I think national security requires is a two-stage process. In the first, computer search programs search the world’s entire daily electronic traffic (to the extent feasible) for messages that are suspicious because of names or word clusters in the message, social security numbers or other personal identifying information besides names, the origin or destination of the message, and other suspicious characteristics. These messages, a minute fraction of all those screened by the search programs, would be listened to or read (as the case may be) by (human) intelligence officers. Computer screening is not a search, because a computer is not sentient. But listening to or reading private messages is, and, as Geof suggests, a properly configured search program might be sufficiently reliable to furnish reasonable suspicion or probable cause to read a message flagged by the computer program. Although probable cause is required for a warrant to conduct a search for evidence of ordinary crime, the Supreme Court in the Keith case suggested that the requirement might be relaxed in a search for evidence of conduct that endangers national security, even if the search involves intercepting a purely domestic communication. In such a case reasonable suspicion might suffice.

Finis

Comments

[Kimball Corson]

P.S., Taylor is good law, consistent with the letter and legislative history of FISA and its amendmenta and much earlier legislation and case law as well. A contrary ruling is not.

[Erasmussimo]

Mr. Hamilton, I have two points to make: first, you seem to misunderstand my point about "we the people". It's a vague term and you seem to be driving a truck through the opportunities afforded by that vagueness. The American people are not a solid bloc; there is considerable disagreement on many issues. I agree that sovereignty rests with the people, but I remind you that the specifics of the exercise of that sovereignty raise many, many complicated issues. Yes, We the People can amend the Constitution: but we need a two-thirds majority of Congress PLUS a two-thirds majority of the State Legislatures. In other words, "We the People" when it comes to amending the Constitution is considerably narrower in definition than "We the People" when it comes to passing a budget. The Supreme Court is one of the mechanisms our Consitution uses to insure that the correct interpretation of "We the People" is applied in different circumstances. Thus, the Supreme Court is the defender of "We the People", not their oppressor.

I also take issue with your narrow application of the rule of law. You seem to be declaring that we apply the rule of law only to "Good People". Other people, such as "Bad People", Terrorists, or Foreigners don't "deserve" to be treated with the rule of law -- at least, that's what you seem to be saying. The problem comes when we get into the definition of "Bad People". It's just too loose a term to be safe. Somebody might just decide that YOU are one of those "Bad People" who don't deserve Constitutional protections. What we want here is "The Rule of Law" -- the notion that we do things according to a defined procedure that applies to Everybody, not just Republicans, not just taxpayers, not just Americans, but EVERYBODY. That's why all the depictions of Justice show her as blindfolded. Justice is applied equally to EVERYBODY, regardless of who they are, where they were born, what god they worship, or what clothing they wear.

[Kimball Corson]

Frederick writes,
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.

Me: Like Taylor’s ruling is not a ruling?

F: 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.

Me: What do you meaning working on? All have told the world they reached an accord and have a meaning of the minds, though they all tried not to say what it was. The lack of a clear agreement got leaked and serious problems remain, leaving the question of whether their statements were just gloss for the mid term elections like their “lobbying reform” legislative efforts.

Frederick: America doesn't have institutionalized approved torture. If you have facts of torture (other than the humiliation of Abu Grahib) bring it forth.”

Me: First, I have. See the case of Maher Arar I have written about on this website. Beaten with lengths of battery cable by CIA agents without evidence of wrong doing and later agreed to be innocent by both US and Canada. The US refuses to even apologize. Second, Cheny lobbied Congress for the right of the CIA agents to continue torture. This was done bald facely. Third, why do we have the new hearsay rule? It is in substantial part so how the “evidence” was obtained won’t be admissible and subject to judicial scrutiny. Fourth, there is no denial that CIA agents have used torture by this Administration. That is why Bush/Cheny want amnesty for past and future acts of torture by CIA agents to be included in the present bill. F, you are in gross denial here and very poorly informed.

F: “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?”

Me: Military tribunal using the military code of justice.

F: “Do you think the agreement reached by McCain, Graham, Warner and Bush allows torture?”

Me: Yes and other violations of article 3 of the Geneva Conventions as well, as some who are parties to the agreement understand it. In truth there really is no full agreement on these issues and it is a lie to say so. At best, it is a work in progress and it is clear Bush/Cheny want the right of CIA agents to torture and violate article 3 and receive amnesty for it.

F: Are the prisoners at Gitmo being mal-treated?

Me: I do not believe so (except to the extent that they might in the future be denied habeas corpus rights by this bill and sit in prison for years without being charged because we have no good evidence on them).

F: “Do terrorists attempting to kill Americans on American flag airlines have constitutional rights against search and seizure?”

Me: Yes, if prosecuted by Americans in American courts or tribunals, but getting probable cause to search is seldom a problem if we know something about the facts you posit in regard to those terrorists. They should not be able to get a warrant on you for that offense, however, because they lack probable cause you were involved.

[Roach]

CTW's praise of "faith" in the Supreme Court is kind of quaint. Unfortunately, it's about 100 years out of date. Liberals, you see, introduced an evil notion called legal realism at the turn of the century. And this nihilistic way of thinking taught, essentially, that law is full of deception and propaganda. The realists also taught that most of the courts' decision rules mask the real power relations in play in society, and that, therefore, having disabused ourselves of sentimental regard for the law as *law*, that judges now can and should freely legislate from the bench since, after all, law is just whatever the judge says it is. And that judging should be done on the basis of "progressive" ideas. This is indoctrinated into Chicago students early on in the Elements Class, which is the single greatest abuse done to Chicago graduates. Everyone can mouth the overly clever realist formulae, but no one even knows what Aquinas or Christopher Columbus Langdell said about natural law or the inseparability of law and the eternal principles of justice.

Ever since, there has been something of a war afoot, chiefly in the political branches, where elected officials have tried to resist the court-led onslaught of elites against the will and values of common people who can, let's never forget, make laws. These statesmen and their aggrieved constituents came to become more alienated from a world where decisions were taken out of their hands, e.g., court-mandated permission for sodomy, secularized schools, mandatory abortion, etc.

In more recent times, conservatives have regained their confidence and tried to reestablish some notion of law, alternately embracing textualism and originalism, both very similar concepts that ultimately depend on the notion of law as inseparable from the idea that language has a meaning apart from the will and desire of any given speaker. Law in this view is a system that can be discerned on the basis of commonly applied decision rules, notions of structure, notions of discernible linguistic meaning, and respect for the apparent intentions of the authors of any given statute or judicial opinion.

The lack of an apolitical and consensus-based notion of a "good justice" and "appropriate jurisprudence" have created highly politicized and vulgar Supreme Court confirmation battles, where both sides clearly are more concerned with results than process. And why? Because liberals way back in the era of Brandeis, Karl Llewellyn, Cardozo and the rest of the realist crew, said there was no such thing and that the only criterion with which to judge judges, judicial decisions, and law in general was its ability to advance something they implicitly said could be known: the desirability of progressive ideas like secularism, equality, and loosened social morals. So there is shaky empirical foundation and a dishonest execution involved in the progressive project, which goes on today thought it's long been devoid of any intellectual support.

So, it's true, I don't bend down on my knee and lick the boots of the Supreme Court. I'm not caught up in their alleged glamor, nor will I show them obeisance when the whole purpose of various justices work--Bryer, Ginsberg, Marshall, Blackman--is to advance an evil, amoral, and nihilsitic concept of law and, worse, to do so dishonestly, dressing up their results-oriented violence against the constitution as a judicial opinion.

I am not against the judiciary in general, nor, in an ideal world, am I for unmediated majority rule. But I am for a return to first principles. The Court is there to rule on cases before it, not to adopt an agenda. The Courts are unique in that their character and their education and their reputations are some of the most important bulwarks against judicial abuse. Between minority rule of judges indoctrinated in a thorough-going nihilism and ordinary people who still believe in right and wrong (and who also know that criminals chiefly belong in jail), I'd risk rule by the latter, even if they don't know much about astronomy and commit scandalous errors such as believing in the Bible.

[Erasmussimo]

I'd like to answer Mr. Hamilton's question as to whether prisoners at Guantanamo Bay are being maltreated. The answer is overwhelmingly yes. We have documented cases of prisoners being subjected to cold temperatures, to sleep deprivation, to maintain uncomfortable postures, and to extremely high noise levels for extended periods of time. This is deliberate infliction of pain, and as such is not just maltreatment, but outright torture. The fact that they don't bleed doesn't make it a mere fraternity hazing.

[Erasmussimo]

Mr. Roach, I was composing my previous missive when your post was made, so I respond to it here. I can only say here that with this post you have transcended the realm of reasonable discussion into another plane of scholarly consciousness. I enjoy a well-reasoned dispute with those with whom I disagree, but when presented with such magnificent dogmatism emerging from the outer reaches of intellectual space, I can only shrug my shoulders in frustration at the impossibility of engaging such a remote mentality as yours. I wish you well and I hope that someday we can come to grips on some issue, but the distance between your views and those of everybody else I know is so great as to deprive us of any common ground for discussion. Perhaps, if you could bring your thoughts closer to, not merely the mainstream, but ANY stream, perhaps then we could discuss this. It's obvious that you bring considerable scholarship to this discussion; I'd expect to be able to derive some benefit from this erudition. But I find the reasonings of the scholastics more amenable than yours.

[Kimball Corson]

As I think back over all I have read in light of Eras' comment regarding torture at Guantanamo Bay, I think he is right and I was too hasty. While the general prison polulation is well treated, there have been many incidents of what Eras reports for a segment of that population. We have our targets.

[Kimball Corson]

Ironically enough, I share some of Roach’s views on jurisprudence, the realist school and the formerly liberal (and now conservative) political agendas in and for the judiciary. The problem focuses largely on the politicization of law in the courts and the near death of a regard for law as law in a more neutral, historical and principled fashion. Karl Llewellyn’s Elements text could be easily turned to aid a progressive liberal agenda just as Roach explains it and how, but more narrowly, as I deliberately took Elements, it was a perspective on how to win cases by focusing on everything that might matter, including what the judge had for breakfast that morning.

Nihilism, whether from the Right or the Left, does leave the impression that the law is no more than deceit, propaganda and politics at one remove and can simply be what we want it to be if only we can appoint the right or predictable judges. However, the truth is that progressive or reactionary political sensibilities should be left to the political process and those sensibilities should as much as practicable be kept out of the courts to the extent possible. However, legislation always has to be fleshed out by the courts and therein lies the rub and room for the abuse of and lack of regard for the law as law by progressive liberals and religious, right wing conservatives alike. The inquiry should be what does the law seek to provide here, with due consideration to all of the proper elements that can shed light on that question, and not simply what does the judge want the law to be in this quarter as a matter of his own personal politics and opinion.

Roach too much characterizes the problem as deriving from the onslaught of liberals or elites, whereas in truth, the problem derives as well from conservative and religious interests who have come to have the same views on how to abuse the legal process as liberals. Neither are neutral, nor do they have any serious regard for the process or what it can provide when not emasculated by the wishes of the politics or self will. Natural law and the eternal principles of justice, neutrally applied, do have roles and are important, as does the public’s best interest, fairly and neutrally considered and based on our best knowledge. But these are elements already largely built into the law and are easily learned if we would but consider the law for the law’s sake and consider more carefully what it provides.

In recent times, conservatives have learned to play the same abusive games with the judiciary that liberals have long engaged in and the consequences for the judiciary have therefore been doubly unfortunate. Conservatives often parade under the banners of textualism or originalism, but only when it suits them in the particular instance. Conservatives have just picked up the liberals’ play book on the process which unfortunately is therefore doubly under siege and torn between the two, with too little regard for its true and proper nature. That nature is likewise serious abused by the court stuffing agendas of both ends of the political spectrum with too little consideration for a nominee’s qualifications as a neutral jurist with a regard for the law as law. Indeed, too many such men are never even nominated and the judiciary is all the worse for it, becoming instead stuffed with willful and political hacks from both ends of the political spectrum. Unlike Roach, I do not believe a simple return to first principles is the answer. Too much good jurisprudence has accrued over time for that simplistic an approach. However, I do agree with his notion that law for the law’s sake can be a standard and that personal political sentiment should have no conscious quarter in judicial decision making. We should look for what the law provides, for it is seldom silent on any of these matters, if we would but intelligently read, understand and appreciate what it says in an aggregative and nuisanced way. Too, unlike Roach, who tends to trust, unthinking ordinary people over liberal well educated elites, I tend to trust no one except those who have a regard for the law for the law’s sake, free of politics and self will.

[curtisstrong]

Wow.

The judicial system is set up in such a way that it can only provide for the situation that we have today. It is both unsurprising and forseeable. If a President can get a nomination and have it confirmed by the Senate, how on earth do we think that the court is going to be a neutral arbitrator? Judicial activism has been a phenomenon of the courts since day one of our country. We can go back to Marbury. It´s no surprise that it happens.

Yet, the courts are highly trained, must give persuasive, often lengthy arguments, and must always hear both sides of the debate. This has the greatest probability of impacting the outcome in a neutral way.

There really is no reason to be lamenting the phenomenon that passionate human beings are sitting on the courts. One might disagree with their holdings, but that´s no different than disagreeing with something that Congress passes.

At the very least, the court is going to give a pretty good reason for finding how they do, something that Congress and the president don´t always have to do.

[curtisstrong]

Frederick,

Another example: This was in the Spanish newspaper "El Pais," a few months back. I can´t remember the man´s name, but he was a member of the Taliban (although by all accounts, he was the most liberal and cooperative with foreign governments). Taken into custody by the U.S. (keep in mind that he was later released without any charges), he was taken to several different detention centers and 1) beaten 2) forced to stand outside naked in freezing weather while the U.S. searched his clothing 3) blasted with a fire dept. type hose 4) insulted 5) interrogated for hours on end with no bathroom breaks.

Yep, President Bush is lying when he says the U.S. doesn´t torture. Bold-face lying.

[curtisstrong]

Roach,

Your originalist argument breaks down the minute that the courts are faced with anything outside of the Founding Father´s world...i.e. war on terror, wire-taps, internet security, inner-city gang warfare, the fact that minorities and women are people, not animals or property, and the like.

The courts have to come up with a way to deal with these situations. They have to because that´s their job. One way or the other, the originalist argument has to fall because we no longer live in that world. Or do you want to go back to a 14th Amendment that didn´t include the right for women to vote? Sometimes, the court sees that the ideas of their fathers were not so good. Using, most often, narrow decisions on specific cases, progress is possible. Bless them for changing it.

Further than that, Kimball has pointed out that members of the right and the left have had their day on the Supreme Court, and it does little for you to lament Hamden, especially given that this is now a conservative court.

Finally, your reference to the Carolene Products case above makes me really wonder where you are going with this originalist argument. The rational basis/strict scrutiny tests that eventually came from that case are incredibly important. In calling a case "evil" that set up a strict scrutiny test for racial bias, it seems that you show some colors that are not lauded by the modern world.

Some explanation is needed.

[Frederick Hamilton]

If torture by Americans has taken place or takes place, I oppose it. I am not sure we have the facts.

I think Kimball you would get a different response from John McCain about the new agreement with the administration. He would posit that the agreement does not allow for torture.

Both Posner/Stone acknowlege the need to have a new paradigm with regard to legal tactics required in this war on terror. The devil will be in the details.

Taylor's decision was by all acoounts (liberal and conservative) a poor excuse for a reasoned legal analysis. Will the order of her decision hold? Doubt it.

I understand the rules regarding what it takes for the people to literally change law. Difficult to be sure. Done before. The salient point is still valid, it takes the consent of the governed for any laws to be followed, respected and even applied.

[Kimball Corson]

Frederick, But Bush and the White House think the agreement does allow for continued CIA torture and provides them with amnesty. That is why I think there is no accord or meeting of the minds, only a desire to say so for the up coming elections.

[Kimball Corson]

Curtisstrong makes two good points. (1) Originalism or textualism are not viable approaches to constitutional interpretation for the very reason that too much has occured which the founding father did not anticipate and that the text does not at all address. Guessing what might have been intended without text or our founding fathers views is not a viable approach.(2) Political court stuffing is and long has been a problem, but some stuffees are not bad judges as Curtis says. True, but neutral lovers of the law for the sake of law, who might make the best judges, are squeezed out, especially in this hyperpolarized political climate.

[ctw]

"I can only say here that with this post you have transcended the realm of reasonable discussion ..."

ditto. I would only add that mr roach's choice of words betrays his real underlying concern, which is "religious" (whether or not in the narrow sense) - society is beset by "evil" liberals who threaten the society's "values", practice "nihilistic" "secularism" in violation of "natural law", etc. which, as eras notes, closes off rational discussion with a nihilistic secularist with no values who routinely engages in bisexual and multi-species sodomy while pursuing a quaint progressive (uh, which is it?) judicial agenda.

BTW, I'd like to take this opportunity to say that I don't know whether those who can interpret phrases based on context and can discourse beyond cute one-liners also miscontrued my earlier statement that "I am an ... intellectual elitist", but I hasten to emphasize that I was using "elitist" in the sense of "preference for" and "intellectual" was the object of that preference. I make no claims to being an intellectual in any meaningful sense and am not an elite in any sense other than the one just stated.

my mother once noted that my full name - charles tilman w - was very flexible. if I amounted to anything, I could go by c. tilman w; if not, charlie. everyone calls me charlie.

-charles

[Kimball Corson]

Such a spirited attack upon and defense of the educations we received from elite schools at such exorbitant prices! To Roach: Darn, we just should have stayed bumpkins in small town Ohio. We had it all and just didn’t know it. To CTW: No, you don’t get your way just because you got a fancy education and think you know it all. Such narrow views. Where are the big ones that include us all as we are?

[Roach]

It is not I but the realists who have cut off the possibility of reasoned discourse. It's true, I think the realists have done many evil things and are fundamentally nihilistic. But if we agreed that law has a certain logic, that law should be followed on the basis of its own internal standards and not for its fidelity to liberal progressivism, then we could have a conversation on common ground.

But such a view would not have the Supreme Court finding a fundamental right to sodomy or to commit terrorism or whatever. Instead it would mostly remain silent, leaving things to the elected branches, particularly at the state level. Instead, the Court intervenes more against states than the federal government, even though the latter is supposed to be a government of "enumerated powers." In the originalist/textualist world, the Courts mostly butt out. And that's an easy enough and practical enough standard to apply, of course that would mean liberal progressives would have to live under laws created by uneducated rednecks and other unsavory people. The horror.

[ctw]

"CTW: No, you don’t get your way just because you got a fancy education and think you know it all. Such narrow views. Where are the big ones that include us all as we are?"

WTF is this? I have no idea to what this comment refers; certainly not my last comment, which addressed exactly the fact that I am not "elite" in any sense other than preferring that our society be defined by those who are educated rather than ignorant. no "fancy education" or exaggerated self-image here; just a preference for intelligence when approaching complex issues.

or is this yet another instance of unrecognized sarcasm? could anyone sentient really not see that that string of descriptors was sarcastically self-referential? if not, I'd recommend lightening up. this is supposed to be fun as well as informative. if we can't use sarcasm occasionally without being attacked, it really ain't all that much fun.

-c

[ctw]

"But such a view would not have the Supreme Court finding a fundamental right to sodomy or to commit terrorism"

as a final comment, do you realize how self-damaging a statement like this is? despite your admittedly often erudite-sounding presentations, it reduces your credibility to zero.

so here's my equally vacuous one liner:

unlike you, I like the "liberal/progressive" agenda forced upon "uneducated rednecks".

end of discussion. bye.

-c

[Roach]

I think it's funny my critics above have called me radical and also said, perhaps correctly "the distance between your views and those of everybody else I know is so great as to deprive us of any common ground for discussion." But it is not I who burned down the bridges that permit us to communicate, it's the realists. They did so explicitly, describing the various canons of legal reasoning in the pre-realist era as anachronistic, oppressive, and themselves dishonest. I don't accept this criticism; I think genuine legal reasoning on the basis of some shared notion of law is possible. But it's only possible if we have respect for law as law. And in a democratic republic like ours that ultimately requires some respect for the American people, the same people who ratified the Constitution and retain the power to amend it. It's true, it's not a temporary majority but a more permanent majority that gets to have its say. But it's a form of majority rule all the same.

I think this is especially important in a case like Geneva and terrorists. Does anyone think that treaty like Geneva and our fidelity to it would not be modified by statute if that's what it took to wage the war against al Qaeda effectively. I think the American people's instincts are the right ones here. We don't want torture and we don't want the equivalent of the old lettres de cachet. But at the same time we don't want endless hearings by foreigners found on foreign battlefields without uniform and without any adherence on their side for any of the laws of war. In short, the American people's instincts are to be trusted on this issue and, more important, are the ultimate arbiter under our constitution. The problem with the twin evils of realism and judicial activism is that the Court sets itself up as a policymaker from which there is no recourse. It is ostensibly interpreting the constitution, but it's doing more than striking down actions it does not approve of, it is also mandating different policies, as illustrated most dramatically in the mandating of social engineering in the form of 1970s-era school bussing. This is going too far, as is the Court's forays into the preeminently executive responsibilities over the military and foreign affairs. Not every issue is justiciable, and if the courts don't police themselves, then there should be some way for the executive, the congress, and the people to do so.

Nothing I'm saying is particularly radical; it's only radical and beyond the pale if you've lived in such an insulated bubble of liberalism that you've never heard this sort of thing before. I don't want conservative judicial activism, I won't the courts to scale back their entry into our political and moral life on the basis of legal realism. But, if it comes to it, I don't believe in unilateral disarmament, applying and letting activists apply to me various formulae of judicial restraint that they will not observe themselves. In a time like this something drastic and reactionary is called for. It would be unwise in the extreme for conservatives to let activists consolidate their gains by urging respect for their lawless precedents. This kind of jurisprudential jiu jitsu is simply dishonest; it's revolutionary zeal masquerading as the voice of reason and restraint. No, I'll trust majority rule especially at the state level (where the governments have a "police power") in all but a tiny number of cases, thank you very much, just as the founders intended.

[Roach]

CTW, it's uneducated? The Court held as much in Lawrence. They somehow read the 14th Amendment to restrict state legislation on this subject. And in Hamdan they misred the Geneva Conventions, which are restricted to signatories and combatants who follow lawful procedures, to have protections under this treaty that they could assert in federal court.

I didn't misread the Constitution or Geneva this way, the Court did. If educated means the ability to read the 14th Amendment as a magic prism through which one can effect any policy preference he wishes, then I guess I'm as uneducated as they come.

Your scorn really means very little to me, as my main point on legal realism speaks for itself.

[Erasmussimo]

Mr. Roach, I'd like to make the attempt to discuss some of this with you, because you seem like a highly knowledgeable person. However, let us admit to ourselves up front that we are so far apart that we are unlikely to understand each other. Let's make an honest attempt and give up when failure looms too large.

The basic argument you have been presenting (correct me if I misrepresent it) is that the courts should keep their cotton-pickin hands off of the laws made by legislatures, especially state legislatures. This leads me to wonder whether you accept the concept of judicial review. Let me remind you that the concept of judicial review is not merely a tradition established by Marbury v Madision -- it is an absolute logical requirement in any legal system.

Consider: a legal system consists of a tangle of laws addressing all manner of disparate considerations. The danger is that legislators, who tend to consider problems in isolation, will pass a new law that has unanticipated conflicts with a previous law. Surely you can agree on the high probability of such a situation, given the size and complexity of our body of law.

Now, in some cases, such a new law is created to clarify an existing ambiguity, to provide the judiciary with clearer instructions as to how to sort out legal complexities, and when such clarification is the true purpose (and actual consequence) of the law, all is well.

But the problem comes when a law inadvertently conflicts with another law. In such a situation, ANY case addressed by EITHER law becomes impossible to adjudicate. One party can claim that law #1 applies, and the other party claims that law #2 applies, and both are right.

Such a situation simply cannot be tolerated; it renders some aspect of human behavior beyond the control of any law. Somebody has to sort out the mess and bring the two laws into conformity with each other. That job falls upon the judiciary, and for very good reasons: the judiciary has the expertise to appreciate the huge body of case law that applies to such messy cases. We can't expect legislators to be familiar with the hundreds of volumes of case law that might bear on their deliberations.

Moreover, in many cases, the conflict between two laws might not be easily recognizable by legislators. For example, laws against homosexual behavior may appear to be narrowly written, but they have implications that spread much further, implications that generate conflicts with the Constitution. Now, here's an important point: the determination of whether such conflicts exists is NOT within the purview of the legislators. That judgment call belongs to the courts, not the legislatures. The judiciary, not the legislative, is the branch of the government that should determine whether or not such conflicts exist. To complain that courts in such cases tread upon the rights of the legislatures is to misunderstand the relationship among the three branches.

Moreover, the decisions of the judiciary in such cases do NOT impinge upon the ultimate sovereignty of the people. If the people do not approve of the consequences of a judicial decision, their proper response is NOT to attack the judiciary, but to clean up the legal mess by amending the Constitution.

To put all this in blunt terms, if you don't like homosexual behavior, stop bitching about the courts and get an amendment to the Constitution passed that clarifies the situation. If you can't get such an amendment passed, then you really don't have "The People" behind you.

[Erasmussimo]

Mr. Roach, once again we have cross-posted, and so once again I must double-post. You offer a welter of cases and controversies, and I don't have time to respond to each. I do want to criticize you for your claim that the the Supreme Court misreads the Constitution and misread the Geneva Convention. You are declaring yourself a better legal scholar than the majority of the Supreme Court. I believe this claim is manifestly absurd. I don't object to your disagreeing with the Supreme Court; I can cite some cases that I believe were poorly reasoned. But I do not elevate myself to their level. I disagree with them on some points, but I disagree respectfully.

If you have an objection to school-busing, or the Hamdan case, by all means present that objection in the proper venue. But to blithely dismiss the scholarship of these people smacks of vainglory and impudence, not rationalism.

[Roach]

Erasmussimo, a few quick thoughts.

I am ambivalent about most forms of judicial review. I think legislative acts are entitled to a presumption of constitutionality, as legislators and exectuives too have a duty to search the laws and the Constitution for unconstitutionality. So I disagree with your view on the Court's special competence in this area; their chief competence is neutrality and "blindness" to policy results that come from life tenure, a neutrality which they have abandoned with a thorough-going orientation towards results. (I mean, my God, have you read Lawerence and Bowers?)

That said, I agree the Constitution is prior to any particular statute and when the two conflict the Court is within its rights to recognize that and, as the case may be, free the accused, remand with instructions, or reverse some other act. But executives and legislatures retain certain powers, including the power not to respect an au courant precedent going forward and the power to ignore ultra vires commands from the Court that go outside of any immediate controversy.

I disagree with your view that the courts are experts and that I am arrogantly putting myselves above them. Many of their loonier decisions in recent years are 5-4. They all contain vigorous and well-reasoned dissents that I have read and found more persuasive. So when you have a majority of legislators and executive acquiesence plus four Supreme Court justices, I'd hardly say I'm in bad company. And I hardly think five people schooled in a nihilistic power-mad and arrogant philosophy like legal realism deserve any particular respect when they dress up their results-oriented reasoning with the simulacrum of respect for precedent and judicial restraint.

This weakneess is never more apparent than when the 14th Amendment is invovled or when the issue of federal enumeated powers are involved. Now, there is no doubt the feds can wage wars, raise armies, sign and ratify treaties, etc. But can they enact general police power legislation? No one thought so until Wickard and Carolene Products. The "reasoning" of the courts in these cases makes it clear they're following the canons of legal realism, which have little regard for law as law.

When Justice Kennedy writes, "At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life," he's not engaging in legal reasoning in any recognizable form. He's simply taking the ball and running with it. The very foundation of this kind of "realist" reasoning disentitles these opinons from being respected.

I don't think I'm smarter than the Supreme Court Justices. I think my philosophy is more honest, and it's very easy to see why when you look at the foundational literature of legal realism. It commands its votaries to do exactly that. Clever but dishonest formulations are no doubt complicated and sometimes hard to make sense of, but I don't really care when that happens. It's about as confusing as when Amadinejead in Iran changes the subject when he's boxed into a corner. In the case of the Court, the whole enterprise is a subterfuge to confuse us from seeing that what was ratified when the law meant something is now going to be unratified because of vague progressive policy reasons, e.g., the "switch in time that saved nine."

As for the proper venue, I thought for a moment I was still living in the United States, where I have rights of free speech to criticize my government, of which the Court is a part. I also thought the whole concept of written down opinions openly and publicly published is that we can see the reasoning (or lack of it) in front of us and demand of our legislatures in certain cases to impeach those who are acting unjustly and imcompetently or, at the minimum, to replace those who have abused their power with those who won't . . . this being a standard Republican election plank, which Bush obliged to respect with the Alito and Roberts' nominations.

[Roach]

Erasmussimo, a few quick thoughts.

I am ambivalent about most forms of judicial review. I think legislative acts are entitled to a presumption of constitutionality, as legislators and exectuives too have a duty to search the laws and the Constitution for unconstitutionality. So I disagree with your view on the Court's special competence in this area; their chief competence is neutrality and "blindness" to policy results that come from life tenure, a neutrality which they have abandoned with a thorough-going orientation towards results. (I mean, my God, have you read Lawerence and Bowers?)

That said, I agree the Constitution is prior to any particular statute and when the two conflict the Court is within its rights to recognize that and, as the case may be, free the accused, remand with instructions, or reverse some other act. But executives and legislatures retain certain powers, including the power not to respect an au courant precedent going forward and the power to ignore ultra vires commands from the Court that go outside of any immediate controversy.

I disagree with your view that the courts are experts and that I am arrogantly putting myselves above them. Many of their loonier decisions in recent years are 5-4. They all contain vigorous and well-reasoned dissents that I have read and found more persuasive. So when you have a majority of legislators and executive acquiesence plus four Supreme Court justices, I'd hardly say I'm in bad company. And I hardly think five people schooled in a nihilistic power-mad and arrogant philosophy like legal realism deserve any particular respect when they dress up their results-oriented reasoning with the simulacrum of respect for precedent and judicial restraint.

This weakneess is never more apparent than when the 14th Amendment is invovled or when the issue of federal enumeated powers are involved. Now, there is no doubt the feds can wage wars, raise armies, sign and ratify treaties, etc. But can they enact general police power legislation? No one thought so until Wickard and Carolene Products. The "reasoning" of the courts in these cases makes it clear they're following the canons of legal realism, which have little regard for law as law.

When Justice Kennedy writes, "At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life," he's not engaging in legal reasoning in any recognizable form. He's simply taking the ball and running with it. The very foundation of this kind of "realist" reasoning disentitles these opinons from being respected.

I don't think I'm smarter than the Supreme Court Justices. I think my philosophy is more honest, and it's very easy to see why when you look at the foundational literature of legal realism. It commands its votaries to do exactly that. Clever but dishonest formulations are no doubt complicated and sometimes hard to make sense of, but I don't really care when that happens. It's about as confusing as when Amadinejead in Iran changes the subject when he's boxed into a corner. In the case of the Court, the whole enterprise is a subterfuge to confuse us from seeing that what was ratified when the law meant something is now going to be unratified because of vague progressive policy reasons, e.g., the "switch in time that saved nine."

As for the proper venue, I thought for a moment I was still living in the United States, where I have rights of free speech to criticize my government, of which the Court is a part. I also thought the whole concept of written down opinions openly and publicly published is that we can see the reasoning (or lack of it) in front of us and demand of our legislatures in certain cases to impeach those who are acting unjustly and imcompetently or, at the minimum, to replace those who have abused their power with those who won't . . . this being a standard Republican election plank, which Bush obliged to respect with the Alito and Roberts' nominations.

Did Chicago change in the last six years? When I was there there was entire crew of students who said exactly what I said above, but it sounds like I'm encountering some rather sheltered types in this exchange.