Monday, June 16, 2008

Nothin' up his sleeve...Presto!

Over at The Virginian, is this bit about Justice Kennedy's creation of law from the bench:
Not so with last week's decision in Boumediene v. Bush. You don't have to slog through the many dozens of pages of Justice Kennedy's torpid prose, nor even glance at either Chief Justice Roberts' or Justice Scalia's dissents, to find out just how much support this decision actually has in the prior case-law of the U.S. federal courts. Instead, consider this remarkable paragraph (at page 49 of the .pdf file; italics in original; boldface mine):

It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure [i.e., formal legal] sovereignty have any rights under our Constitution. But the cases before us lack any precise historical parallel. They involve individuals detained by executive order for the duration of a conflict that, if measured from September 11, 2001, to the present, is already among the longest wars in American history. See Oxford Companion to American Military History 849 (1999). The detainees, moreover, are held in a territory that, while technically not part of the United States, is under the complete and total control of our Government. Under these circumstances the lack of a precedent on point is no barrier to our holding.

You could not possibly seek a more candid admission that Justice Kennedy is making up not just law, but constitutional law, out of thin air. And a more conspicuous or egregious example of "legislating from the bench" would be hard to imagine, particularly since this time, the Court is not only legislating itself, but sweeping aside as unconstitutional the legislation actually passed by Congress and signed by the President.

(If, nevertheless, you actually do go on to read the dissents — and if you're wondering why Hermann Göering and his crew weren't permitted to assert their supposed Fourth or Fifth Amendment rights under the U.S. Constitution at Nuremberg — you'll find that Justice Kennedy and the majority also disingenuously disregarded contrary precedent that is on point, most particularly Johnson v. Eisentrager, 339 U.S. 763 (1950), which quite sensibly held that such foreign nationals who acted, and were captured and tried, entirely on foreign soil, had no rights under the U.S. Constitution, and could not use habeas corpus to claim any.)

Well, I guess the best way to address this is to stop detaining the enemy and just wack 'em in the field. Prolly save a bundle on transport and housing costs too.

Thar he blow(viates)

Professor Victor Davis Hanson hands Pat Buchanan (Windbag Extraordinnaire) a rather complete refutation of Buchanan's ill-advised sortie into the Professor's area of expertise.

My comment on a comment there:
“Matt S: Certainly the results of the Second World War were good for the emerging United States on the world stage. But I think most of us in the States, because it has been our time in the sun, fail to see the indescribable pain and suffering of the scores of millions who are at the bottom of the heap.”

Yeah, like our defeated foes from WWII, Germany and Japan. Oh, the woes they’ve suffered as a result of our continued support and friendship in the four decades since that conflict ended.

I think a great number of countries in the world would rather be our defeated foe–given how we treat those we have defeated–than the ally of our enemies.

Far from causing the suffering of “scores of millions” (whatever that means), we have rebuilt and continued to support our erstwhile enemies even after suffering scores of thousands of dead in conflict with them. The people of Iraq and Afghanistan will also prosper and benefit from our assistance and friendship, just as Germany and Japan have, if they but embrace a flavor of democracy.

I personally believe that in The Shield of Achilles, Philip Bobbitt is correct in counting WWI, WWII, Korea, Vietnam, and the Cold War as chapters in an epochal war to determine what form of government is to replace the previously dominant form. However, I also believe that in American Jihad, Emerson has identified a profound connection between our current foe as represented by al Qaeda/Muslim Brotherhood and the fascists of WWII. Namely, that the Muslim Brotherhood was formed as the Middle Eastern “branch” of fascism–an answer, and ally, to the Italian and German versions of it. Therefore, this “Long War” has not yet ended and we are in a fight to determine whether the democratic republic or fascist theocracy will prevail.

As to our “moribund empire,” what is it that we get out of imperial “outposts” like Germany and Japan versus the benefits they reap from our association? Some empire. If our nation’s imperial ambitions are so overwhelming and all-consuming, why is it we haven’t added more stars to our flag in the past 40-years? Germany? Make it a state! Japan? East Hawaii, I say!

What a curious way to build a hegemonic empire when compared with the historical exemplars.

Professor Hanson? Thanks for wielding that sharp instrument and letting the air out of the windbag. I look forward to the next installment as I am sure you will have a surfeit of targets in the months to come.