Wednesday, September 20, 2006

Richie, Benedict, and moi

Okay, I'm really tired and should go to bed but first I must comment about Michiko Kakutani's review of Richard Posner's new book "Not A Suicide Pact: the Constitution in a Time of National Emergency" that appeared today in the New York Times. (Honestly I don't know why I even read the New York Times anymore since each time I do, I come away angry and frustrated, but there it is and here I am, so.)

First, I would like to just point out the silliness of having a non-lawyer review what is, in essence, a law book. Maybe it's not a casebook or a hornbook, but the fact is that to truly understand constitutional law, you need to have attended those fun first year Con Law I lectures, and you probably need Con Law 2 as well. Some upper-level seminars would be nice, too, because let's face it: constitutional law is difficult, and even though I have taken a number of classes on the subject and find it fascinating, I don't always find it accessible. At a bare minimum, advanced coursework in political science would be nice. So to have Ms. Kakutani (who may be well-versed in liberal rhetoric and may have gone to Yale, but clearly doesn't know jack about con law) to review the book is like asking me to review a book on electrical engineering.

What amused me most about the review is that she is more than happy to call attention to Judge Posner's so-called hypocrisy but is too blinded by political correctness or some other liberal diesease to see her own. For example, she believes it to be hypocritical to call for increased surveillance of terrorists without wiretaps, but decreased interference by the media when it comes to both personal privacy and matters of national security. I have already addressed my opinion on that particular issue, and I stand firm on it. There is absolutely no hypocrisy in wanting the government to be able to protect its citizens without being sold out at every turn by a violently anti-establishment media.

There is, however, great hypocrisy in arguing that when it comes to privacy and national security, the Constitution is a firm document with no loopholes and which is not subject to interpretation, but when it comes to individual rights, it's totally negotiable. Which is it? Because Ms. Kakutani's line of reasoning places her, hilariously in my opinion, right there in bed with my personal favorite jurist, Justice Antonin Scalia, and his whole "framer's intent" hangup. Let's consider: if the Framers were to consider the issues of abortion, contraception, gay marriage, the "zone of privacy" that permits homosexual sodomy, etc., how do we think they would have felt? I'm going to go ahead and guess that they might have been just a little bit surprised that the Constitution they wrote for this country has been interpreted to allow for some of these things. I'm definitely not saying that it shouldn't have been - and shouldn't further be - I am merely saying that the Constitution is more than silent on these issues. But if the Framers were also to be asked whether they meant the Constitution to tie the hands of the government when it comes to the lives of its citizens and the government's ability to protect them, I'm pretty sure again what their answer would be. Just as Judge Posner has suggested, it is ludicrous to suggest that they anticipated that the Constitution would ever be a hindrance to saving this country from an enemy so determined, so capable, and so fucking sick in the head that it would put a liquid explosive in a baby bottle in order to smuggle it onto an aircraft -- well, I'm personally left speechless.

Politics does indeed make for strange bedfellows. Michiko Kakutani and Justice Scalia; me and the Pope (and Richard Posner). How truly bizarre.

4 Comments:

Anonymous Anonymous said...

A reason for a non-lawyer to review the book is because executive power in national emergencies is NOT a legal question... it's a political question.

When the Legislative branch is highly divided, ineffective, partisan, and REFUSES to conduct proper oversight of the executive branch, power flows to the Executive. The courts cannot stop it.

The legal question is for academics. The pragmatic question is why does public opinion flow toward the executive during a crisis?

1:03 PM  
Blogger Know Nothing Attorney said...

Not a legal question... it's a political question? That really clears it all up! Although you can call the US Constitution "political," it clearly has legal implications and has to be analyzed in the legal context because it has long been decided that the Supreme Court has the final say on all constitutional questions. If voters or legislators had the final say, I guess you could call it political. But it is the Supreme Court who has the final say, thus we call it a legal question, with some political overtone. Lawyers go the court, argue their clients' points of view, and the judges decide = LEGAL. Judge Posner looks at the question from the (gasp) legal perspective, Kakutani merely compares Judge Posner's views to the platform of her political party.

"When the Legislative branch is highly divided, ineffective, partisan, and REFUSES to conduct proper oversight of the executive branch, power flows to the Executive. The courts cannot stop it." I thought Congress is supposed to be divided and partisan. That is why we have a multiple party system. Your statement that "the courts cannot stop it" makes no sense at all. Courts can order stop to all kinds of stuff, like school segregation, military tribunals for terrorists, Gore taking presidency. The US Supreme Court is not shy about taking charge when it deems appropriate to do so. So, what are you talking about?

"The legal question is for academics..." Wait, are you Kakutani???

11:14 PM  
Anonymous Anonymous said...

The Supreme Court does not have final say...

The executive must enforce court opinions and the legislature has ultimately the final say via the amendment process. Considering the majority of items (the bill of rights plus additions added by the legislature such as the equal protection clause) = amendments created by non-court bodies I'm uncertain how a court has the final say. Perhaps a con law person can remind me exactly how many times the legislature has amended the constitution since ratification?? =)

The court is a reactive entity... it reacts to policy changes made by the Congress and the Executive. I'm unclear if the court has final say why individual rights contract in times of national security? The executive and legislature make policy changes... gasp, via the political process!!

For the court lovers, the court is quite risk averse. It is quite (gasp) political in which cases selected to hear in a given year, and rarely steps out in front of the legislature to make policy with desegregation being one RARE item when the courts beat congress. For each instance of the court blazing policy, I can name 5 policy areas that the court comes along behind the legislature (Shall we start with the New Deal and Court packing? Reading of the commerce clause?).

Ike opted to use troops to implement the court's opinion. He could have used a water pistol. Gore decided to withdraw from the race- he could have ignored the court and protested the outcome. How can one possibily argue Bush v. Gore 2000 wasn't a political court deceision???

5:12 PM  
Anonymous Anonymous said...

I forgot to end with my favorite line from Andrew Jackson... "The Supreme Court has made its decsion, now lets see them enforce it"

5:15 PM  

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