April 18, 2003

Stephen Breyer on Civil Liberties

Stephen Breyer on civil liberties. Perhaps most interesting, he says that Lincoln's suspension of habeas corpus during the Civil War is not valid precedent but, instead, a "mistake."


Associate Justice Stephen G. Breyer, "Liberty, Security, and the Courts"

Association of the Bar of the City of New York
New York, New York
April 14, 2003

Your President, Judge Leo Milonas, has asked me to repeat remarks I gave last November at a meeting of members of the Paris bar. My object was to help foreign lawyers understand the institutional context in which Americans will resolve their concerns about security and basic human rights. I described the kinds of issues that might soon arise, explained the courts' role, set forth a general framework that would help guide judicial decisions, and made clear that, not only judges, but many other Americans as well, would determine the ultimate outcome. I shall repeat the essence of that talk.

I

First, the current situation: Post September 11 civil liberties issues fall into three categories. The first includes the rights of detainees. These detainees include (1) approximately 600 individuals from 42 different countries who fought against allied forces in Afghanistan and are presently detained at Guantanamo Bay; (2) two American citizens, accused of crimes related to terrorism, who have been detained in military prisons; and (3) 200 of the thousand or so individuals arrested by the government after September 11 who are still being detained. This group includes aliens illegally present in the United States, material witnesses, and a few individuals accused of terrorism-related crimes.

The second category involves statutes increasing the government's information-gathering powers, for example, laws making it easier for the government to obtain a magistrate's approval for a search or wiretap, to proceed without approval in certain emergency situations, to listen to certain terrorist-related lawyer/client conversations (though these conversations cannot be introduced into evidence).

The third category includes those matters that might happen, but so far have not, for example, trials before military tribunals. Consequently, from a judicial perspective, the civil liberties cases involving detainees now seem more urgent.

II

Second: the legal questions presented. The detainee cases may ask the courts to decide, among other things: What law applies to the detainees in Cuba? What rights or guarantees does the applicable law grant them? Have those rights been respected? Are the restrictions imposed upon the two American citizens detained in military prisons consistent with basic Constitutional guarantees? What rights, if any, does the Constitution offer foreigners illegally present in the United States? What are the rights of material witnesses? In particular, to what extent and in what circumstances do ordinary courts lack jurisdictional competence to decide these questions?

I cannot tell you how the courts will answer these questions. But as you understand, answers will be forthcoming. Our judicial system is open. An individual detainee, or a "next friend" if that detainee lacks immediate access to a court, can file a court complaint. The complaint can ask the judge for relief, say freedom from detention, access to counsel, or an amelioration of detention conditions. The court will respond, yes or no, grant or deny. And the losing party can appeal -- eventually to our Court. Indeed, a party concerned with delay can move for a speedy response and can seek review of an adverse ruling. And, if the government claims that the court lacks jurisdiction to decide a particular matter, the court, not the government, will decide if that is so, with the result in a lower court being subject to appeal.

Moreover, in our system, habeas corpus represents the norm, lack-of-jurisdiction the exception. The theory of the ancient habeas corpus writ is that anyone in detention can challenge the lawfulness of that detention by getting word to a judge, who can order the sheriff or other jailer to "bring me the body." If exceptions exist, courts will determine their scope and whether particular circumstances fall within them.

I emphasized these matters abroad because I wanted the European lawyers to understand that American courts remain open and will eventually answer the legal questions raised. Courts will decide how the law applies, what guarantees it provides, and whether the government has respected those guarantees. The recent decisions in the Hamdi and Padilla cases show that the process is well under way.

III

Third, a decision-making framework: We do not yet have authoritative judicial answers to many of the legal questions raised, but past experience during periods of emergency suggests several general principles that can help guide judicial decision-making.

1) The Constitution applies even in times of dire emergency. Who would think the contrary? Cicero did. He said inter arma silent leges -- "once the guns begin to sound, the laws fall silent." And Justice Jackson worried that the Court majority in Korematsu might have implicitly adopted Cicero's dictum. In dissent, Jackson warned the Court that wartime decisions could create disastrous precedents that would remain, like loaded guns, ready to be fired in the future.

But our Court, along with other modern courts, has explicitly denied Cicero's view. During the Civil War, the Supreme Court, in Ex parte Milligan, wrote that the Constitution does apply "in time of war as in time of peace." Indeed, in 1941, in the midst of hostilities, an English law lord, Lord Atkins, wrote that "the laws are not silent. Their substance may change, but they speak the same language." He added that England was engaged in a struggle for the right to maintain a government that would protect the liberties of its citizens. That objective demands that independent judges place themselves between government and citizen -- making certain that the government restricts liberty no more than the law permits.

These views embody the more ancient principle, summarized 350 years ago by Lord Coke, when he told England's king that his authority was limited, not "because the king" is "subject to human beings," but because "he is subject to God and to the law." We call this principle "the supremacy of law." No one in this country denies that principle. Its widespread acceptance keeps the courthouse doors open -- even in times of national emergency.

2) The Constitution, emergency or no emergency, typically defines basic liberties in terms of equilibrium. Law itself seeks to reconcile each individual's desire to act without restraint with the community's need to impose restraint in order to achieve common objectives. It is not surprising that Constitutional guarantees often demand a similar balance. They seek an equilibrium permitting the government to respond to threats without abandoning democracy's commitment to individual liberty.

An equilibrium that is right in principle will yield flexibility in practice. The Fourth Amendment uses the word "reasonable," -- a word that permits different results in different circumstances. That Amendment, which ordinarily insists that a magistrate issue a warrant before a search, can relax that prior authorization requirement when a dangerous killer is loose in the neighborhood. In doing so, it does not abandon its commitment to personal privacy; it applies those protections in changed circumstances. The value does not change; the circumstances change, thereby shifting the point at which a proper balance is struck. That is what happens in wartime when more severe restrictions may be required. Justice Goldberg, paraphrasing Justice Jackson, pointed out that "the Constitution is not a suicide pact."

3) A proper equilibrium requires courts to learn from past mistakes. What mistakes? They include the speech-censoring Alien and Sedition Acts enacted during the Republic's early years. They include President Lincoln's suspension of the writ of Habeas Corpus during the Civil War. As a result, the Union generals imprisoned between 13,000 and 18,000 people -- all without benefit of judicial process. They include Congress's efforts during World War I to punish efforts to incite disobedience to the Draft and the Executive's efforts to use that law to prosecute political dissidents, for example, the publisher of a political cartoon showing a giant, called "conscription," crushing a worker and a farmer.

They include treatment of Japanese Americans during World War II when, soon after Pearl Harbor, the Government removed 110,000 individuals of Japanese origin, 2/3 of whom were American citizens, from their homes in California, sending them to camps located in Mountain and Mid-Western States. The Government feared sabotage -- though the FBI and J.Edgar Hoover himself then said they had no evidence of any act of sabotage or any sabotage threat. Politicians of the day, including our great civil liberties champion Earl Warren, supported the removal (much to their later regret). And the Supreme Court in Korematsu, a decision we now recognize as shameful, held that the Constitution permitted it.

Three justices, Jackson, Murphy, and Roberts, dissented. Justice Murphy pointed out that the evidence was not sufficient to accuse or convict any person of Japanese ancestry of espionage or sabotage directly after Pearl Harbor when these individuals were still free. Justice Jackson observed that the Court's holding posed a greater threat to liberty interests than the military order itself, which, "however unconstitutional, is not apt to last longer than the military emergency."

Most court historians now believe that these decisions were wrong. They benefit from hindsight. But, even so, the Court's overemphasis upon security demands seemed apparent to many at the time. And today, most believe the Court abdicated its review responsibilities, failing to find the kind of equilibrium that the Constitution demands. It seems fair to say that Korematsu now represents the kind of constitutional decision that courts should seek to avoid.

4) To avoid those mistakes bench and bar must ask at least two questions: Why? and Why Not? The question "why," when asked in respect to an unusual governmental restriction means, "why is this restriction necessary?" Courts, as well as lawyers, ask this question of government officials. Those officials can explain the special need, backing up the explanations with relevant supporting material. Courts can examine that material, in camera if necessary, even ex parte, say, with counsels' permission. Courts can give weight, leeway, or deference to the Government's explanation insofar as it reflects underlying expertise. But deference is not abdication. And ultimately the courts must determine not only the absolute importance of the security interest, but also, and more importantly, its relative importance, i.e., its importance when examined through the Constitution's own legal lens -- a lens that emphasizes the values that a democratic society places upon individual human liberty.

The second question, "why not," means why not achieve your security objective in less restrictive ways? Might the government, at little security cost, impose a restriction of shorter duration? Are sunset provisions possible? Might impartial administrative decision-makers play a role in the restriction's application? What about periodic reports about the implementation of the restriction, as well as its continued need?

Other nations have explored alternatives: Does the government fear a lawyer might become a conduit for a suspected terrorist's coded messages? I listened to a British lawyer describe how Britain limits the suspect's choice to a list of "secure" counsel -- a limitation that is restrictive compared to a suspect's ordinary totally free choice, but which is less restrictive than no counsel at all. Are the reasons for holding such a suspect powerfully compelling? I have heard Israeli lawyers describe how, in such circumstances, courts demand continued updates on the ongoing nature of that need.

Asking these questions -- looking for alternatives -- will not guarantee perfect constitutional results. But when lawyers, judges, security officials, and others, try to find alternatives, they help to avoid the kinds of constitutional mistakes previously described.

More importantly, the search for alternatives helps avoid two extreme positions. The first says that, insofar as war is concerned, the Constitution does not really matter. That is wrong. The Constitution always matters, perhaps particularly so in times of emergency. The second says that, insofar as the Constitution is concerned, war or security emergencies do not really matter. That is wrong too. Security needs may well matter, playing a major role in determining just where the proper constitutional balance lies.

IV

Fourth, the role of others: Judges alone do not determine the content of the law that eventually will emerge. To the contrary, the American law-making process is one, not of law being dictated by judges or, for that matter, legislators. It is one of law "bubbling up" out of the interaction of groups of interested, affected individuals, experts, organizations such as private firms, unions, bar associations, and many others as well. Interactions take place through discussion and debate in the press, in journals, at public meetings, at colloquia, at legislative hearings, and in dozens of other formal and informal ways. These interactions take the form of a national conversation, with proposals being made, criticized, revised. And out of this conversation will emerge a legal product -- a product that often differs significantly from the original proposal.

That is why the many disagreements among us, reported in the press -- about government restrictions, security threats, civil liberties -- do not mean that disaster is upon us, but that the democratic process is at work. I believe that this is how the democratic process should work. My Court plays a role in the process, but it typically becomes involved fairly late in the day, to determine, say, whether that legal result, as applied, is consistent with basic constitutional norms.

That the Court's intervention comes late is often desirable, for we are relatively isolated from the facts and are aided by knowledge of how a particular provision has worked in practice. But that means that the job of reconciling civil liberties and security needs cannot possibly belong to judges alone. All of us -- including lawyers, administrators, legislators -- participate, and properly so.

Nor would I limit the "all" who can participate to Americans. We live in a world where communication is instantaneous, where other democracies have faced problems of terrorism, where other lawyers and judges have tried to make certain that the law respects basic individual freedom despite serious security problems. Indeed, the Council of Europe has issued Guidelines based upon Human Rights Court decisions. And the English Court of Appeal, in a case involving British citizens being held at Guantanamo Bay, held that the legal questions at issue were for American Courts to decide, while observing that "the United States courts have the same respect for human rights as our own."

I see no reason why Americans should not read the European Guidelines or consult the lawyers, the courts, or the executive branch officials in countries with similar experiences, in our efforts properly to reconcile the relevant interests at home.

That in part, is why I am pleased to have had the opportunity to speak in France. I learned from what I heard there as I participated in a continuing conversation about the seriousness of the security problem and the importance of simultaneously maintaining our guarantees of basic freedom. Ultimately, that discussion reinforced my own conviction that the community of those concerned about security, those who remain dedicated to the protection of basic liberties, and those who place trust in the democratic process, is a world wide community. Its members learn from each other.

I conclude by pointing out that I have not told you what you really want to know -- how the civil liberties cases will be decided. I would like to know that too. I can only now describe a process. It is a process in which we all participate. And I can, and do, simply underscore the importance of your continuing participation.

Posted by DeLong at April 18, 2003 08:43 AM | TrackBack

Comments

That's a careful, compelling and magnanimous speech. What will be most interesting, I think, is how the Supremes will assess what 'war' means in its current incarnation under the Bush administration. That is to say, whether it takes the view of some commentators that the administration wishes to recalibrate the status quo so that the modifications that Breyer regards as necessary during times where there is a 'security interest' can remain in place indefinitely. That's certainly capable of being extrapolated from the 'war on terrorism', and may even be at the heart of the shifting focus of armed conflict from Afghanistan to Iraq to Syria and who knows where else.

Posted by: nick sweeney on April 18, 2003 11:44 AM

"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." -Benjamin Franklin

Posted by: bakho on April 18, 2003 02:42 PM

I hate to troll, but I've heard that Benjamin Franklin quote way too much recently. What does it mean? Can we assume that it's valid? I've never heard the precise reasoning behind it. The idea behind it seems to be that basic rights, including liberty and safety, are not rights which all humans have naturally, but rather things that they earn through having the correct values and the correct behavior. As such, the right value to have as far as liberty and safety is concerned is to value liberty over safety, and people who do not share such values are therefore undeserving of such rights.

I've heard that quote a lot, but do we really mean what it says, or is this just a facile repetition of a quote from a famous dead man that seems to lend support to the idea that liberty cannot be compromised for security purposes?

For the record, I am opposed to the recent infringements on civil liberty, and frightened by the demonization or glib dismissal of all opposition, but hearing that quote one too many times sent me over the edge a bit. :^)

Posted by: Julian Elson on April 18, 2003 07:40 PM

All this is a moot point. In the new Bush era we have neither liberty nor saftey, and we are likley to see the diminishment of both resources as time goes on. The betterment of the masses will be claimed as the reason, and with the right types of incessant propaganda, most of our fellow citizens will only be dimly aware of the loss. At least until after the next 'election' that is.

Posted by: VJ on April 18, 2003 11:33 PM

I didn't read this post, rather just the headline.

Mark Kleiman (at his 'blog) made an interesting point (re Lincoln's actions, the claim that "the Constitution is not a suicide pact", and the current situation): perhaps we should construe "suicide pact" to refer to the *Constitutional order*. Kleiman then discusses evidences that in Lincoln's day the constitutional order was indeed under threat, and it's not today, not even with events like 9-11, if I recall what he wrote correctly.

I second VJ's thought that "In the new Bush era we have neither liberty nor saftey." Let us not forget that one common attribute of rightists like Bush is incompetence.

Posted by: Stephen J Fromm on April 19, 2003 09:02 AM

Incompetence? Maybe in the long-run scheme of history, but if anything, recent events have shown that in terms of political tactics, Bush and co. can more than hold their own. And that makes the Bush adm. even worse.

Posted by: andres on April 19, 2003 11:13 AM

I'd accept Lincoln's suspension of habeas corpus as a non-mistake if the only circumstances where it could be used as a precedent are actual civil war... more worrisome to me, except perhaps that's it's such terrible precedent that it's unlikely to work for long as precedent, is the use by Ashcroft of the German submariners case from WWII, since it was basically a case devised to cover up FBI incompetence. I can see its relevance to the present moment, but I still find it hard to believe they cited it (I forget in whose case-- Lindh, Padilla, somebody) with a straight face.

Posted by: Mike G on April 19, 2003 11:30 AM

Necessity is the father of Constitutionality.

Lincoln's suspension of habeas corpus is now considered a "mistake" that we should never repeat. OTOH his printing of fiat money, which was equally unconstitutional in Lincoln's mind and that of his advisors, as well as in the opinion of the Supreme Court in _Hepburn v. Griswold_, is a practice we happily continue today.

To have all that outstanding money be declared unconstitutional after the war would have been a great inconvenience for the Federal government, so Grant successfully "packed the Court" long before FDR's failed attempt at doing so, to get a reversal of _Hepburn_ the very next year.

And so the Constitution evolves ... and we all enjoy having Federal Reserve Notes in our wallets.

A little bit of the political tale is at
http://www.supremecourthistory.org/02_history/subs_history/02_c06.html

To judge the merits of the arguments for yourself and decide which of these two back-to-back Court decisions was the "mistake", follow the link to the opinion in _Knox v. Lee_ at
http://nesara.org/court_summaries/legal_tender_cases.htm

Posted by: Jim Glass on April 19, 2003 12:19 PM

“(I second VJ's thought that "In the new Bush era we have neither liberty nor saftey." Let us not forget that one common attribute of rightists like Bush is incompetence.”

Gosh darn it, what will you do when George W. Bush is no longer around? Wahhabi style militant Islamism is not going to disappear anytime in the next few years. Our war against those embracing this evil ideology may trouble even our great-grandchildren.

The American system was devised to respond to such challenges. That is why we have the separation of powers underpinning our political system. Should you be concerned about possible violations of civic rights? Absolutely yes! However, there is no reason for hysteria and childish rantings concerning the current administration.

Posted by: David Thomson on April 19, 2003 01:53 PM

Andres, I meant "incompetent" as rulers, not as politicians.

Cheers,

Posted by: Stephen J Fromm on April 19, 2003 04:59 PM

"Gosh darn it, what will you do when George W. Bush is no longer around?"

Cheer, sing, dance, etc.

"Wahhabi style militant Islamism is not going to disappear anytime in the next few years."

True. OTOH, if someone more competent than Bush et al. were running the country, maybe we would have put more American soldiers on the ground at Tora Bora, instead of relying on a bunch of proxy clowns, and actually captured bin Laden. Not to mention someone whose family isn't so, well, *personally* connected to the main Wahhabinite regime in the world.

"However, there is no reason for hysteria and childish rantings concerning the current administration."

Hysteria and childish rantings? What's hysterical about saying the guy's a liar, an incompetent, and so forth?

Posted by: Stephen J Fromm on April 19, 2003 05:07 PM

Wahhabi style militant Islamism is not going to disappear anytime in the next few years. Our war against those embracing this evil ideology may trouble even our great-grandchildren.

One might hope that American great-grandchildren will have shaken off the ideology of the military-industrial complex, because in doing so, it would make their country more capable of addressing other fundamentalisms.

Also, if one is truly concerned about Wahhabi-style fundamentalism, one might address it at the wellspring in Riyadh, rather than bully those states (such as Syria) which have systematically crushed Wahhabist dissidents, albeit in ways that most would find tyrannical.

Posted by: nick sweeney on April 19, 2003 08:37 PM

Um... just a thought.

While I'm no fonder of those who express their religiosity in blowing up stuff than anyone else, Wahhabism is a *religion*. I think all can safely agree that policies to stamp out religions are a Very Bad Thing.

(Among other things, they don't work. Hunt up a former Soviet sometime and ask him.)

Posted by: Demosthenes on April 20, 2003 11:05 AM

"While I'm no fonder of those who express their religiosity in blowing up stuff than anyone else, Wahhabism is a *religion*. I think all can safely agree that policies to stamp out religions are a Very Bad Thing."

The Religious interpretation of Wahhabism is very similar to the emperor worshiping of the WW II Japanese. Why don't you hunt up a former Imperial Japanese officer and ask him what happened during the time Douglas MacArthur was the benevolent dictator of that previously warlike nation?

There is one thing that makes somewhat more optimistic about eventually defeating the Wahhabis: we are starting cut to off their funding! The leaders of these Muslim countries are starting to worry that they could lose control of the situation. This may be especially true in Saudi Arabia. Iran’s theocratic rulers are not Wahhabis, but they too require money to keep their operations going. I’m hoping that the Iranian people can clean up their own mess.

Posted by: David Thomson on April 20, 2003 02:13 PM

"Our war against those embracing this evil ideology may trouble even our great-grandchildren."

We are not at war, as defined by the Constitution. Under the Constitution, we can only be at war when the Congress declares a war on specific governments. As Congress has not yet declared war on any government, we are not at war.

A "war on terrorism" is no more constitutional than a "war on drugs."

Posted by: Mark Bahner on April 21, 2003 09:54 AM

"Perhaps most interesting, he says that Lincoln's suspension of habeas corpus during the Civil War is not valid precedent but, instead, a 'mistake.'"

That's pretty clear, from a simple reading of the Constitution. The suspension of habeas corpus is under the powers of Congress.

The Founding Fathers weren't so foolish as to give a single man the ability to suspend habeas corpus. (For exactly the type of activities that Lincoln demonstrated.)

Posted by: Mark Bahner on April 21, 2003 09:58 AM

"The Religious interpretation of Wahhabism is very similar to the emperor worshiping of the WW II Japanese. Why don't you hunt up a former Imperial Japanese officer and ask him what happened during the time Douglas MacArthur was the benevolent dictator of that previously warlike nation?"

The Japanese occupation is not a valid comparison. For one thing, the Saudi government was not involved in 9/11 or any other Pearl Harbor incident. Secondly, the Imperial Cult in Japan died out because (1) a lot of the soldiers who followed it got themselves killed in China or the Pacific, and (2) because the Emperor himself asserted his own humanity, starting with the radio address in which he ordered a ceasefire. i.e., by the time that overrated, militarist zealot McArthur arrived in Japan, most Japanese had already rejected the previous fascist government as a result of the crushing defeat it had led them to, and very soon they took a different view of the Emperor, regardless of what McArthur said.

The Wahhabis are different entirely in that they have no mortal god figure and because their sources of funding--oil and Hajj revenues--cannot be cut off. And I can think of no better way of turning the Wahhabi hierarchy into martyr fodder for terrorism than the stupid expedient of invading Saudi Arabia. It is far better for the US to encourage peaceful relations while at the same time fostering independent Arabic thought, so that at some point in the future Wahabiism goes the way of medieval Catholicism.

Posted by: andres on April 21, 2003 01:16 PM

"The Religious interpretation of Wahhabism is very similar to the emperor worshiping of the WW II Japanese."

I don't see the similarity. In Japan, they were worshipping a living man as a God. I'm not aware of any similar portion of Islam.

"Why don't you hunt up a former Imperial Japanese officer and ask him what happened during the time Douglas MacArthur was the benevolent dictator of that previously warlike nation?"

I've seen enough television to think I know what happened in Japan, post WWII. First, Japan was utterly destroyed by the war. Then, the Japanese saw a picture of their god-emperor next to MacArthur, where MacArthur looked big, and their emperor looked small. (Not to mention the fact that MacArthur was making no absolutely no gesture of deference to a god.)

http://fourthmarinesband.com/mcarthur_hirohito.jpg

So the Japanese people simultaneously saw that their military led them to a huge defeat, and that the man they worshipped as a god was not.


Posted by: Mark Bahner on April 21, 2003 02:23 PM

“We are not at war, as defined by the Constitution. Under the Constitution, we can only be at war when the Congress declares a war on specific governments. As Congress has not yet declared war on any government, we are not at war.”

Welcome to the new paradigm where the enemy is not limited to geographical boundaries. The laws of this country must often evolve to better respond to the new realities. Your political theory would render us utterly impotent to fight the Muslim extremists. Thankfully, the vast majority of Americans have no interest in embracing your ultra reactionary political philosophy. They agree with Robert Jackson that the American Constitution is not a suicide pact.

Posted by: David Thomson on April 22, 2003 09:18 AM

“I don't see the similarity. In Japan, they were worshipping a living man as a God. I'm not aware of any similar portion of Islam.”

You are completely missing my central point. Both the Imperial Japanese military establishment and the Islamic radicals adhere to militaristic religious values. Our post world War II policies eradicated the former to he point that it can be argued the Japanese are currently too inclined toward pacifism! Hopefully, we can do the same with the Islamic totalitarians. Our very lives depend on it.

Posted by: David Thomson on April 22, 2003 09:27 AM

"Welcome to the new paradigm..."

There ain't no new paradigms, without constitutional amendments.

"...where the enemy is not limited to geographical boundaries."

There have always been criminal groups who act in more than one jurisdiction. So this is nothing new.

"The laws of this country must often evolve to better respond to the new realities."

Heh, heh, heh! It's always funny to hear a conservative parroting the "liberal" line that the Constitution magically evolves to mean whatever the reader desires it to mean. But just because y'all believe in tooth fairies, doesn't mean they exist. The only legitimate way to change the Constitution is with an amendment.

And all the references to *others* who have violated the Constitution (Jefferson, Truman, Reagan, GHW Bush, Clinton, etc. etc.) also doesn't change the Constitution.

"Your political theory would render us utterly impotent to fight the Muslim extremists."

:-) Again, it's kind of funny to read a conservative advocating throwing The Law down the toilet, to meet the "crisis" of the moment.

You want to fight Muslim extremists, by committing extrajudicial executions, either abroad, or here at home? Then write a Constitutional amendment that says the President gets to kill whoever he wants, without a trial, and without even Congressional approval. (While you're at it, you'll also have to eliminate the Constitutional prohibition on "Bills of Attainder"...Congressional bills that authorize the President to execute people without a trial.")

If the Constitutional changes you desire are REALLY so necessary and vital, then our good representatives in Congress and the state legislatures will see that. (With help from you, obviously.)

It has now been a year and a half since September 11, 2001. I haven't seen any proposals from any conservative--either within the federal government or outside it--for a Constitutional amendment. (Which is why I don't have much respect for conservatives.)

"Thankfully, the vast majority of Americans have no interest in embracing your ultra reactionary political philosophy."

Bwahahahahaha! It's YOUR political philosophy thats "ultra reactionary!" YOU are the one who is advocating abandoning the Constitution, in *reaction* to the "crisis" de jour. I am advocating the ****conservative**** approach of not going completely bonkers...and instead following The Law.

"They agree with Robert Jackson that the American Constitution is not a suicide pact."

Idiotic Supreme Court justices! They can always think of clever (and completely specious) ideas for why the Constitution shouldn't be followed.

"You can't falsely shout fire in a crowded building." (As the reason to ignore the First Amendment, and prosecute those who protested against the draft in WW I.)

"Suicide pact," indeed! AS IF a few cave-dwelling lunatics could bring down the United States of America! (Only the U.S. government has the power to do that.)

Posted by: Mark Bahner on April 22, 2003 09:51 AM

In case people were wondering about the history of the bogus "suicide pact" lunacy:

http://slate.msn.com/id/2060342/

"In 1949, Justice Jackson (he was not the chief justice) finished a fiery dissenting opinion in Terminiello v. City of Chicago (1949) with these words: "There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."

In the case, a fellow named Terminiello, who claimed to be a Catholic priest, gave a hate-filled public speech blasting "Communistic Zionist Jews, FDR, Queen Eleanor" Roosevelt ("one of the world's communists") and others. Protesters demonstrated against him, violence broke out, and Terminiello was charged with disorderly conduct. At the trial, the judge told the jury Terminiello could be found guilty if the jury concluded his speech brought about a condition of unrest.

Terminiello was convicted and appealed. The Supreme Court eventually ruled for Terminiello in a 5-4 decision, saying the judge's instruction had infringed upon the defendant's right of free speech. In his dissent, Jackson insisted that Terminiello's agitprop had gone beyond the bounds of protected speech and the state had the right to lock him up. Jackson's point was Ashcroft's point: Extremism in the name of civil liberties could lead to the destruction of the nation."

Thank goodness Franklin and Eleanor Roosevelt were protected from free speech, eh, David? ;-)

Posted by: Mark Bahner on April 22, 2003 09:58 AM

Your comments remind me why I’m not a radical Libertarian. I find your arguments childishly inane and even disingenuous. Your adherence to an absolutist doctrinaire view of the world might be existential comforting, but it endangers the overall society. It not even a slight exaggeration to assert that you are more than willing to sacrifice all of our lives upon the altar of abstract political purity.

"There ain't no new paradigms, without constitutional amendments.”

“Heh, heh, heh! It's always funny to hear a conservative parroting the "liberal" line that the Constitution magically evolves to mean whatever the reader desires it to mean. But just because y'all believe in tooth fairies, doesn't mean they exist. The only legitimate way to change the Constitution is with an amendment.”

Somebody has obviously conned you into believing that your interpretation of the American Constitution is infallible. The Bush administration position is supported by most, if not even the vast majority of constitutional scholars. Your view is the aberrant one supported by only a fringe minority.

“There have always been criminal groups who act in more than one jurisdiction. So this is nothing new.”

This sentiment is truly dangerous. You would demand that our government fight these monsters as if they were mere common criminal instead of ideologues who have literally and unambiguously declared war on America.

“"Suicide pact," indeed! AS IF a few cave-dwelling lunatics could bring down the United States of America! (Only the U.S. government has the power to do that.)”

This sentence is so absurd that it is truly embarrassing. Many of these so called “cave dwelling lunatics” possess advanced degrees and have a proven and regrettably successful track record of murdering large numbers of Americans---or have you already forgotten the events of 9/11? Since when were their caves in New York? Alas, a strong enough enemy can destroy our nation. It is most bizarre to believe that only our own government can do us in.

“In case people were wondering about the history of the bogus "suicide pact" lunacy:

‘In 1949, Justice Jackson (he was not the chief justice) finished a fiery dissenting opinion in Terminiello v. City of Chicago (1949) with these words: "There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.’"

Regardless of how one might think of the court decision which prompted Judge Robert Jackson’s comments---the principle remains sound and relevant for all time.

Posted by: David Thomson on April 22, 2003 12:51 PM

Go easy on coffee, will ya, David?

Posted by: StrontiumDog on April 23, 2003 08:01 AM

"Your comments remind me why I’m not a radical Libertarian."

My comments, and my general point, are not "radical," or even especially "Libertarian."

What I'm basically saying is that the Constitution doesn't allow the United States to be at war with private citizens of the President's choosing.

More specifically, the Constitution absolutely does NOT permit a "war on terrorism." One way to easily see that is to recognize that such a war will NEVER end. (And if you disagree with that statement, I would be happy to bet you any amount of money you choose, that no U.S. President will EVER say, "We have won the war on terrorism," or "We are no longer at war with terrorism.")

The Founding Fathers were sooooooo leery of perpetual war that they didn't even allow *standing armies* under the Constitution. And they clearly made the power of initiating (declaring) war that of the Congress, not the President. Finally, the Founding Fathers even prohibitted *Congress* from writing bills that authorized extrajudicial executions (by prohibitting "Bills of Attainder"). In summary, there are a whole host of reasons why U.S. laws don't permit a president to wage a "war on terrorism."

So once again, under the Constitution, we are not at war. This can be seen by the fact that Congress hasn't declared war. We're simply in a situation where a U.S. president, once again, is violating the Constitution, while the Congress sits on its cowardly collective @ss.

We are not at war under the Constitution, regardless of whether the Bush Administration or Stephen Breyer realize it. A simple combination of reading of the Constitution, reading the history that led to the Constitution, and a bit of rational thought, will lead one to that conclusion.

If you think we *are* at war under the Constitution, answer these questions:

1) Will the "war" ever end, and if so, when?

2) If the Constitution prohibits Bills of Attainder (i.e., that Congress could use to authorize extrajudicial executions), why would the Founding Fathers have let the *President alone* carry out such executions)?

I can come up with another half dozen questions, but my lunch period is over. :-(

Posted by: Mark Bahner on April 24, 2003 09:55 AM
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