I have yet to read the opinion of the Court as to the reasoning of this week’s 2nd amendment ruling, but let’s discuss just one point. Four justices earlier were upset that the court upheld Habeus Corpus, and the clear basis of their argument was not strict construction, but rather fear of attack. Those same four justices plus Justice Kennedy made use of strict construction in the DC opinion. That to me says that at least those four justices are perfectly comfortable with our government “defending” us against others, but they’re not comfortable with the government defending us against each other. Put another way, we can abuse others as much as we want, but heaven forbid we wish to assert government authority against our own citizenry.
“The important thing is that you’re okay.” These are the words I overheard while passing by a person on a cell phone. Knowing nothing more about the individuals involved, these seem to me words one never really wants to hear, and one only says them when the person on the other end has gone through a traumatic experience that has resulting in them, at least in some way, not being okay. Was the person in a traffic accident or did that person observe a violent interchange? We’ll never know. Neither will we know when that person will be okay. We break easy, and sometimes repair slowly.
Along those same lines, I commend to your attention an interview by Terry Gross with Jill Bolte Taylor, a researcher at Indiana University on the brain who had a stroke that impacted the left side of her brain. Her story of recovery is nothing short of remarkable.
Most of the time when you see that headline the next comment talks about abortion or gun control or the death penalty. But this Supreme Court seems to be after something far more dangerous: its own power. It’s an axiom in Washington that each branch of government vigorously protects its own constitutional turf. Not necessarily so with some of the justices, however.
While this Court has at times shown great deference to the President, they have recently repeatedly slapped the administration for overreaching. This past week the Court handed down two separate decisions, that said that the administration cannot hold someone indefinitely under its control – regardless of location – without a hearing before a judge. In one case, Boudemiene v. Bush, the justices affirmed that the Writ of Habeus Corpus (sometimes called the Great Writ) applies to inmates at Guantanamo Bay in spite of the fact that Congress had specifically limited Habeus reviews in the Detainee Treatment Act of 2005. Anthony Kennedy wrote for a bare majority of five justices that, “To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say `what law is.'” They arrived at this conclusion having determined that those acting on the color of authority of the United States are subject to the limits of the Constitution. Doesn’t this seem brilliantly obvious?
Our problems reside in what the other four justices were thinking. Justice Roberts hides behind an abused procedure to keep these people prisoners, and then mischaracterizes Combatant Status Review Tribunals (CSRTs) as sufficing for purposes of Habeus review. Sadly former participants of that review have said in open court precisely that it is inadequate. We don’t know because they’re secret.
Justice Scalia went further, arguing the end of the world in the first section of his opinion, because, he argues, what the Court has done is to strip the government away from mechanisms necessary to protect the United States. Like torture? Holding someone indefinitely without any judicial review? If Justice Scalia believes such a system would be to his liking, perhaps he would prefer to live in Zimbabwe where such thinking is enacted on a daily basis. Of course he doesn’t have to go anywhere near so far as the third consecutive decision of this Court to require reasonable review has of yet not caused a single prisoner to be released or even reviewed by a judge.
The Court for a long time has attempted to shy away from deciding laws on constitutional grounds. Much better to use more limited methods of finding conflicting law or a narrow interpretation that squeezes through any bars put forth by the Writ. Here, however, the situation was simple: the U.S. controlled the prisoners, and the prisoners were not given by any reasonable characterization a meaningful review. The Court then gets to decide whether or not Habeus is to be enforced. Four justices have chosen to ignore Marbury v. Madison in favor of expediency, or a doctrine of President as king. Neither bodes well for separation of powers.
Thomas Friedman of the New York Times today on the matter. While I don’t think much of some of his other opinions I found this piece by Thomas Friedman of the New York Times very much aligned to my own thinking. At some point or another we will have to come to terms with actually conserving energy. In the meantime, however, there is a game going on, and the world consumer is a participant, whether we like it or not. Things you can do to not play include these:
- Don’t travel
- Don’t use air conditioning
- Live in a house or apartment with good insulation
It was about 29°C outside and 23° inside my home office as I wrote this post. Here’s a little piece of humor I alluded to earlier: we have two gas guzzling cars, but how much does it matter if you don’t drive them? That first bullet is hard for me and for our family, with relatives and friends so far away. My recollection is that an efficient airplane gets you about 20-30 passenger miles per gallon of fuel. As I travel to New Hampshire this week that will be a round trip distance of over 7,500 miles, which equates to about 250 gallons of fuel. Put another way, I normally use about 13 gallons of fuel per month in my car, and so one plane trip to the United States is greater than my entire year’s use of gasoline. This is one of five trips I’ll make across the pond this year, nevermind those we’ve caused relatives to make. I’m as bad as the next person, I suppose.
The administration has reached a deal with the House and the Senate to extend its domestic spying powers. Something the administration insisted upon was language that forgave service providers for having betrayed their customers’ trust by revealing what was thought to be privileged information without a warrant. The administration argues that they need the power to catch terrorists. However, the controls that are put in place, not only in law but in our Constitution are there to protect us, and not terrorists. Richard Nixon was a big fan of domestic spying and famously abused the NSA’s capabilities for his own political purposes. We see today that corrupt governments all over the world abuse their positions. By definition the power of a sovereign overwhelms individuals. This was recognized as far back as the Magna Carta, but furthered through the writing of our own Constitution and Bill of Rights, which enumerated the power of government, and reserved all other powers to the States or the people. Today’s Supreme Court has nearly lost sight of that for fear that we might be attacked by terrorists. There are worse things than being attacked by terrorists. Kit Bond, a leading House Republican said last week, “When the government tells you to do something I think you all recognize that is something you need to do.” That is dictatorship, not democracy.
But it gets worse. By forgiving the service providers, the Congress has said that it is okay to break the law if you’re a big enough company with powerful enough lobbyist, so long as you do it with the blessing of the current government. “We’ll clean up your mess.” That says that laws only matter to individuals and organizations that cannot afford to pay.
Republican Congress passing the extension of such intrusive laws would have been expected, as President Bush pretty much had his way with them. With the Democrats, the calculus is very different. First, they do not want to be labeled soft on terrorism, for fear they’ll alienate their right flank. Furthermore, while the press is reporting that the Democrats don’t want to make this a campaign issue, what they really don’t want is for a President Obama to have to have to address the matter. And so they’ve all but adopted the Republican position.
Not so nearly unrelated as you might think, Social Security is the 3rd rail of politics, and yet as everyone knows the fund will run out of money, and is desperate need of restructuring. If the Republicans attempt to do it, they get beat over the head by folks such as the AARP and others for trying to remake it in a way they would like. Just as it took Nixon to go to China, it will take the Democrats to restructure Social Security. And yet they won’t for fear of giving up one of the best potential campaign issues. Thus nothing happens, no matter who is in office.
I expect principled leadership. In both houses of Congress I see none. Government has to be about more than just the Abortion Battle and the Gulf War. It has to be about understanding the liberties we Americans had (I really can’t say “have”) and protecting, or restoring, them. The people who landed in Jamestown sought freedom from established orthodoxy. Were they alive today they would turn over in their graves to see what we have recreated.
So, what is the difference between a Democrat and a Republican in reality? Answer: not much.