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November 28, 2006


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Real mature, guys.

Once again, faced with the consequences of an unreasonable and hard-line stance, instead of acknowledging the harsh truth about your views and the injury they would inflict on others, you blame the victim for pointing out what you're actually saying.

Grow some f***ing balls. If you want to keep Curtis' wife out of the country, admit it. If you don't, I guess you better find a new policy stance.


I'd like to take this chaotic argument in a new and even more chaotic direction. I refer to Mr. Pro Gress' quotation:

"The Constititon is not a suicide pact."

This statement has always struck me as profoundly dangerous, and it bothers me that a Supreme Court Justice would write it and that Mr. Posner would quote it. The problem with the statement is that it is an open-ended justification for almost any judicial re-interpretation of the Constitution. Don't like the First Amendment? No problem! Declare that enforcing the First Amendment is tantamount to a suicide pact and voila! no more First Amendment! Indeed, there's absolutely nothing in the Constitution that is immune to judicial manipulation under this "suicide pact" reasoning. We have all manner of people (including, I believe, Mr. Posner) who are willing to dispense with Constitutional protections because of some piddling little terrorist attack whose actual injury inflicted was insignificant. If these people are willing to toss out the Constitution for 3,000 lives, then what about 1,000 lives? 100 lives? Once you've established the principle that a small threat justifies abandonment of the Constitution, you've pretty well thrown out whole shebang.

What's truly ironic about this is that many of these same people fulminate furiously about the evils of judges who "create law" by going beyond the strict letter of the Constitution. It would seem that a carefully reasoned but highly interpretive decision that extends freedom to one group is an outrage, while the outright destruction of explicit clauses in the Constitution is perfectly justified under the anything-goes "suicide pact" principle.

I find it hypocritical. You can't consistently hold to the "suicide pact" principle and oppose Roe v Wade.


I´d like to invite everyone to visit BAC´s links.

This is the amount of intelligence he brings to the table. Thank you BAC for showing just how simple minded you really are. Let´s see. An article about Muslims that is completely off point. Link to a book, with no more than a title to prove your point. A link to Nascar...enough said. A link to an 1833 Supreme Court case, that has been overruled by three amendments to the constitution (and also was off point).

As for my wife, the comment was simply to illustrate that I would not be making a "deal" with Roach on this particular issue, as it personally affects me. On the bright side, I think that you´ve all embarrassed yourselves sufficiently in your mindless reactions to the post. It makes me glad anytime that I get rightwingers to make fools of themselves unawares. Although that wasn´t my intention there, it seems to have worked wonders.

Thanks guys!



I agree that the court is going to lean more pro religion. My question is how far, and what test they´re going to use to get there. Also, if they lean more towards religion, will they make exception of religions? Will they only lean towards Chritianity, or will they remain neutral in the face of other religious groups?

I think you can see from this blog how far some people are willing to take establishment and free excercise interpretation. Here´s to hoping that your assessments of Roberts and Alito are correct.

By the way, I ran across an article the other day that said Roberts has actually cast the deciding vote in nearly as many cases as Kennedy. So, at least in certain areas, Roberts may also play out as a bit of a wild card.

Even so, I think we agreed before that Kennedy´s interpretation of Lemon (or whatever test is used) is likely to differ quite a bit from the traditional rightwing justices, so he could have a mediating effect on how far the court can go. I personally wouldn´t rely on Alito in this realm, but Roberts could plausibly have a more moderated view. By the way, I haven´t really kept up with the Supreme Court cases so far this term, but are you aware of any establishment cases up for review? After having this discussion, I´m really interested on how the different justices come down on this.



"Not a suicide pact" is ridiculous. The entire country is not going to commit suicide. If the constitution is an impediment to national security in a significant way, it will get amended. No doubt. This way to frame the discussion is dumb.

Eras is correct when he says that this way of looking at the constitution leaves open basically any interpretation one wants. You´ve basically written into the constitution another amendment along these lines "This constitution may not be interpreted to include a suicide pact, and any phrase contained herein may be temporarily or permanently struck in light of this amendment."

Maybe Judge Posner wouldn´t take it that far. Some on this blog would. Fortunately, such an amendment doesn´t exist, so you can´t continue your blitzkrieg on the constitution to further your own ends. Those with a rational sense of responsibility will continue to pursue national security matters within the bounds of the constitution.

And it will continue to work.



I am sorry if you thought my links somehow dumbed down the hit parade of erudite quotes from you. The serious minded analysis in your prior posts certainly deserved a more weighty and thoughtful response.

You're right, posting visceral and knee-jerk rants to another poster's thoughtful positions merely exposes the ranter as immature and ignorant.

P.S. -- I think the article on the Minneapolis airpot proves Roach's point precisely. Our nation would be entirely different under a muslim majority, so we had best keep that in mind in making our immigration decisions.


I thought when curtistrong said, "Actually, Roach, you can go to hell. My wife is an immigrant," he was being especially serious and deserved a serious response.

You know my cousin's cousin is an immigrant. Does that mean I get to win every debate on immigration from now on?



I am not aware of any establishment cases up for review, but I too will be looking out for any.



CS writes: "If the constitution is an impediment to national security in a significant way, it will get amended. No doubt. This way to frame the discussion is dumb."

In fact, it is sooooooooo dumb that the imbecile Richard Posner framed his entire book in that way.

Also, on whether Posner would like your proposed amendment that "This constitution may not be interpreted to include a suicide pact, and any phrase contained herein may be temporarily or permanently struck in light of this amendment," I am sure you are just as able to look up Posner's thinking as I am.

To make things easier, though, here is what he has said on the issue:

"A nonlegal 'law of necessity' that would furnish moral and political but not legal justification for acting in contravention to the Constitution may trump constitutional rights in extreme situations."

The good judge's words are not as pithy as your proposed constitutional amendment, but I think they basically say the same thing. I guess you can throw Posner in with the nefarious "some on this blog" that would agree with your amendment.

P.S. -- I think Posner would have made a good Pope too.

Joan A.Conway

Wait I have to phone a few of my roddy musician friends? I know an old woman, who loves these places, too.


""A nonlegal 'law of necessity' that would furnish moral and political but not legal justification for acting in contravention to the Constitution may trump constitutional rights in extreme situations."

The good judge's words are not as pithy as your proposed constitutional amendment, but I think they basically say the same thing. I guess you can throw Posner in with the nefarious "some on this blog" that would agree with your amendment."

BAC, lol, so because Posner said it it's right? Posner isn't God, and he's not the smartest man alive, and even if his raw intelligence is pretty high up there, all the legal genius in the world can't make up for plain old lack of common sense.

This is Korematsu reasoning, pure and simple. We've made that mistake before, and if we can't learn from mistakes that some of our citizens were even alive to remember...

Well, maybe the country really is doomed, then.

Joan A. Conway

Imperial Lessons serve the teacher's purposes for teaching hotel guess what is a serious complaint and what is pure efficient protocol in serving the public. No one says anything about due process in an interstate commerce hotel serving citizens of other states under an antifederalism Congress before November 2006. Imperial lessons drum up work for attorneys and are ususally a waste of time to begin with since the complainant is the target for abuse. No one in their serious mind would take their slogan seriously, because it is too ambiguous in its terms and conditions under the contractual agreement between the guess and the hotel. It must be proven with hard facts and credible evidence. Unlike the former Marshall Fields where the customer was always right, there were distributors and merchants ready to make good on a bad purchase for the opportunity to sell in Fields. Of which Wal-Mart has abused this concept by making the suppliers sell at ridiculously low prices and export manufacturing the product overseas until they bleed red ink and go bankrupt.


"You know my cousin's cousin is an immigrant. Does that mean I get to win every debate on immigration from now on?"

Nope. But then again, no one is arguing that... On the other hand, perhaps if you had a close relationship with your cousin´s cousin, and I were so irrational as to propose that we deport all immigrants, you might put forth a countervailing argument that such a fantastical proposal would affect your life in a negative way.

So, I guess that doesn´t win the debate; one argument never does.


Judge Posner! Judge Posner!

Many judges have been wrong before, and Judge Posner is wrong on this one. You can´t throw the constitution to the wind any time President Bush yells "National Security!"

It´s irrational in the extreme. We live according to laws, the most supreme of which is the Constitution. If the republicans can throw the constitution to the dogs whenever they feel threatened by something (A Mexican party down the street, a Muslim who buys groceries at the same supermarket...etc.), then the constitution means very little.

Whether or not Judge Posner, President Bush, or the Buddha says so, "Not a suicide pact" is an incorrect way to look at the constitution.


Curtis: I cited to Posner because you have used adjectives such as "dumb" and "stupid" to describe the not-a-suicide-pact position. Perhaps such adjectives can apply to me, but certainly we can agree that Judge Posner is neither "dumb" nor "stupid."

(And don't tell me you were only calling the position, and not the proponent, stupid, because your exact quote is: "This is just what stupid people try to do.")

Suppose the President commits a one-time violation of the Fourth Amendment to stop an imminent terrorist attack that will kill thousands of people. You would have that President impeached and indicted, I would have him reelected.

Do you really think that the correct action is to let thousands die rather than commit a one-time violation of the Fourth Amendment?

In answering that question, do not change the hypothetical by saying the President should find an alternative legal way to save the thousands of people. The hypothetical is both simple and relevant -- there is an imminent terrorist attack, thousands will likely die, and the only way to prevent it is by taking a one-time action that violates the Fourth Amendment. What do you do?


Folks, all of Roach's comments and his underlying philosophy is dead-on-balls accurate. The Cubans, Muslims, all of it.

Unlike most of you (apparently) I don't have time to write 25-page posts. I really didn't even have time to read all the comments, but they were just so fascinating.

I must get back to work now.

Oh, as to me taking the time to teach an English class here in my beloved Miami, I am a goodwill ambassador with Hispanics every single day--on the elevator, in the metrorail (as mentioned), on the street, at the drycleaners, in Home Depot, etc. Plus I married an immigrant from South America, thereby taking on responsibility for saving her and her entire family. Now I'll be called a bigot or something similar--but folks, that's the truth.

So color me as also having an immigrant wife--but also mark me down for agreeing with Roach.


Mr. BAC, I agree with you that calling Mr. Posner stupid is patently wrong. While I disagree with the man, I would never, ever question his intelligence.

I find your hypothetical scenario highly contrived. Yes, indeed, if the President were forced to choose between allowing thousands to die and obeying the letter of the Constitution, then he would probably do better to save the lives. However, a great deal hinges on the precise details that you choose to contrive. For example, here's a scenario that meets your specification:

Terrorists hide a small nuclear device in an American city and threaten that they will detonate it unless the President dissolves Congress and terminates all future elections, making him dictator for life. The President reluctantly agrees. Is this Constitutional sacrifice worth a few thousand lives? If so, why did all those soldiers in America's past die for "the cause of liberty"?

Sure, it's ridiculously contrived -- but then, so is your initial specification. Our legal system already has a way of dealing with weird situations in which the defendant does right while breaking the law: "no jury would convict". If the President breaks the law, then don't trash the law; let the law take its course. Prosecute or impeach the President and have a trial. If the President truly did right, then there will be no conviction.

There's an important principle here: no law can address every hypothetical scenario. There are too many weird possibilities that can never be anticipated. We must admit to ourselves that there will always be odd circumstances not addressed by the law. This does not lead any reasonable person to abandon the rule of law; instead, we simply acknowledge the remote possibility of such circumstances and hope that, when such crazy situations arise, those who enforce the law will apply some common sense.

You might object that my notion of "common sense" is little different from Mr. Posner's "suicide pact" principle. However, there remains a crucial difference: I insist that the rule of law must never be compromised, while Mr. Posner is prepared to abandon the rule of law. If the President chooses to break the law in service of what he considers a higher goal, then let him make his case in court, and suffer the consequences if he fails to convince a jury.


Mr. Vice, you have every right to your sentiments but I must ask, how does revealing those sentiments to us offer any edification? I learn nothing from others' opinions -- I require facts and reasoning to learn.



Just surrender to your inner-Posner on this one.

You seem to recognize that there are "weird situations in which the defendant does right while breaking the law." That is, essentially, the not-a-suicide-pact reasoning.

Your argument seems to be that jury abnegation is somehow preferable to prosecutorial discrection in handling these types of "weird situations," but frankly I do not see the difference. In fact, your ephemeral "compromise to the rule of law" would be more pronounced when a jury expressly abnegates clear law than when a prosecutor simply decides not to pursue charges.


Actually, what I was referring to was Roach´s position (and all those who agree with it) that all Muslims be barred from entering the country. I doubt Judge Posner fits that description.

However, I stick to my guns about the constitution. There are so many variables to BAC´s hypothetical that it makes me nervous even to address it.

Let´s see. "Thousands of lives." 3,999...3,998...etc...2...1... Where is that line going to be drawn? "Imminent threat" 10 sec.´s ... 20 min.´s ... 30 days ... etc.

How about the proof. How certain are we that this attack is going to take place? 100 percent? Although I guess that´s where BAC´s headed, 100 percent is never going to happen. 99...50...25...0.01...

I know it´s a slippery slope argument, but that´s the world we live in. President Bush came into the White House with the agenda to push the envelope as far as he can. Is that a legitimate reason to violate the constitution? Of course not. But he´s been protected by the republicans in Congress (no, before you get all crazy, I´m not in favor of impeaching Bush...I´m just happy that now we have a democratic congress to keep him somewhat in check). So, my guess is that this president, and many more to come are going to try to push the standard back as far as they can.

Once it all starts, it´s pretty difficult to stop.

Hence, I fall back on the very plausible argument that there will always be a consitutional approach to solve these types of problems. We have a reasonableness requirement, and a probable cause requirement for different types of searches. We have different powers given to different parts of governments to deal with national security problems. We have emergency powers that can be granted. We have police, intelligence, and military forces available. Within this framework, there is LOTS of leeway for good decision making.

Nope, the constitution should not be violated.

Why should we as a society be willing to sacrifice thousands of people in a war (we could even take it so far as to apply this to people who are drafted against their will, if the circumstances required it), ostensibly in order to maintain our freedoms and our constitutional values, and yet not be willing to die in any different sort of way in order to maintain our country´s integrity and constitutional law in tact?

But, in any case, that won´t happen. There are many ways to avert a national crisis in a legitimate, constitutional fashion. So don´t worry, BAC. We really can do both at the same time.


The difficulty with prosecutorial discretion in this case is that the prosecutor answers to the President and is therefore unlikely to indict their boss. And the President can always fire any prosecutor brash enough to file an indictment. This is why impeachment is the more likely route -- except that impeachment is highly prejudiced by political considerations. What party would impeach its own President? All in all, the system is so fallible that a sitting President can easily get away with a number of crimes -- as has already been demonstrated.


[Hypothetical Presidential Press Conference]

My fellow Americans, today 50,000 patriots were killed by terrorists.

Luckily, we apprehended one of the 20 terrorists shortly before the attacks.

The suspect was apprehended in New York, and he was an American citizen.

Although the lives lost are tragic, you can rest assured that this man was arrested only after we had developed probable cause for arrest. He had been acting suspiciously for months, but everyone knows that arresting on mere suspicion is a violation of the Fourth Amendment.

We now know that the suspect had extensive email and phone exchanges with his co-conspirators. But you can be confident knowing that we never tried to intercept those domestic communications.

You should also take heart that, even though he would not talk, we never attempted to torture or coerce him into telling us anything.

In fact, his lawyer (Sharif Abdul el Amin) was present at all interrogations. You will be happy to know that the lawyer even filed a habeas petition.

In fact, our lawyers had just put the finishing touches on an excellent response to the habeas petition when the 19 trucks loaded with explosives erupted at the football stadium.

Dear Americans, sleep well tonight knowing that those 50,000 died "in order to maintain our country´s integrity and constitutional law in tact."


You're right, Curtis, it is much easier just to pretend something like this could never happen.


BAC when has that scenario ever played out. It never has and never will. Life is grayer than that, not as black and white as you perceive it. It's a strawman scenario that you offer to instill fear that those who object to your viewpoint are willing to let thousands die for the sake of a principle. nice try though.


"My fellow Americans, today 50,000 patriots were killed by terrorists."

Um, what do we mean by "patriots"? How do we know they were patriotic? Why does that matter?

And, frankly, Curtis' point is well-taken -- without our Constitutional protections, in the future no patriots may exist to be killed by terrorists.

BAC, perhaps you and those of you who march lockstep with Bush and his cronies have nothing to worry about. But those of us who question him and his motives do. My motivation for speaking up for the Constitution is one hundred percent selfish. I don't want to get arrested, detained, questioned, tortured, taken outside of the country and not allowed to return, etc., etc., without so much as the benefit of a lawyer or recourse to the courts. And the fact is, since, like a truly PATRIOTIC AMERICAN exercising her First Amendment rights, I criticize the government one hell of a lot. I criticize my government because I love my country. Under the rule of Bush and other power-hungry anti-Constitution types, the very exercise of my free speech may someday put my freedom itself at risk.

The scenario I worry about (and I suspect Curtis and others as well) is that Mr. el Amin, or I (after all, I'm also a lawyer who believes in civil rights, so I must be as guilty as him -- unless what he's guilty of is having a foreign last name) will be subject to one of the government's secret indictments, and will have to attend secret hearings and possibly be detained for an indeterminate amount of time, without even being told what evidence they have against me, or of what "crime."

My scenario is no more "out there" than yours.


john, Cynic, Curtis, Eras:

You are all making a giant assumption that somehow curtailing civil liberties to address a national emergency will somehow permanently eliminate such civil liberties. This is simply not the case -- and history proves it. The writ of habeas corpus came back after Lincoln's suspension of it and the Japanese are no longer detained in camps.

The second problem with your argument is that you refuse to accept the hypothetical. John et al., blithely say that since my scenario has never happened, nothing like it will ever happen in the future. Such quibbles about what will happen in the future only sidestep the important principle at issue: which is whether in times of national emergency there is can be a moral and political justification for acting in contravention to the Constitution.

If you don't like the national emergency I've cooked up, come up with one of your own. Otherwise, simply say that no national emergency would justify acting contrary to the Constitution and live up to the implications of that statement.

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