So if the Court gets it wrong in a couple of cases, it should be consistent and continue to be wrong in a different direction on an unrelated case? That sounds like the wierdest possible kind of jurisprudence to me. I’d be happy with Roe v. Wade being precedent for fetuses not having the right to a speedy and fair trial, but it says nothing about the rights of adults to a speedy and fair trial.
(And I’d be happy to entertain the view that Roe v. Wade was wrongly decided,. and that abortion rights should be decided by state legislatures, even though I strongly support women’s rights to choose. Yes, not all possible rights are listed in the Bill of Rights, and some have to be dealt with by the normal political process.)
I never support the Court taking away existing rights. And the argument about “extra-Constitutional” is a red herring. We’re talking about explicitly protected rights that the court is eviscerating in the Padilla case. With this decision, comments by Bush about how much easier it would be if he were dictator, a never-ending TWAT, the Patriot Act and multiple other factors; it becoming more and more clear that more liberals need to hold the Second as sacroscant as the First.
Well, first of all, I don’t necessarily believe that Miller was a good decision. I grew up in an area where hunting was very important. I grew up with guns. My parents shot black powder muzzleloader throughout my and my brother’s childhoods. I’m comfortable around guns. I’m hardly a gun-stealin’ liberal, if I’m a liberal at all (I tend to think that my positions on gun control, the limitations of welfare, and personal responsibility contrast with my sexual/religious/social libertine side to push me into the center).
Second of all, as someone else pointed out already, there are differences between ex parte Quirin and what’s going on now. Those differences matter. At least, they will until the courts hand Bush his throne.
Suppose, just for kicks, that I accept this argument: that if I agree with Roe v. Wade I somehow don’t have moral standing to complain about this ruling in the Padilla case.
It would seem to follow (again, supposing that I accept this argument) that the people who do have moral standing to complain about this ruling are those who disagree with the courts ruling in Roe v. Wade. People such as, say, Bricker, who certainly disagrees with Roe v. Wade and seems to disagree with this ruling as well.
I can’t help but wonder then, in the face of a ruling which he appears to disagree with…one which seems to authorize the President to detain any U.S. citizen at any time by saying the magic word “terrorist”…why he’s wasting his fucking time going “nyah nyah” to abortion supporters.
Hey Bricker? The author of this specific opinion, the honorable J. Michael Luttig, appears to be from your side of the aisle. Do you have anything to say about him? Or are you too busy pointing fingers at liberals to have anything to say about the actions of a judge appointed by Republicans, who’s a contender for the next Republican appointment to the Supreme Court?
I mean, your blame-flinging powers are indeed dazzling, but there seems to be an elephant in the room.
Nice try. But my side of the aisle is populated by textualists. This guy isn’t on my side of the aisle. I condemn Republicans and Democrats who legislate from the bench will equal fervor. And both parties are guilty of it – just on different topics.
This may be why some people think “activist” is an accusation hurled when you don’t agree with a ruling. It isn’t. It’s a comment on the method of analysis used to arrive at a conclusion.
Bullshit, as far as this thread is concerned. Your condemnation of Luttig in this thread, as far as I can tell, consists solely of a disagreement with him over the application of the Quirin precedent. Liberals, on the other hand, were accused of creating a Frankenstein monster in your very first post in this thread.
I really don’t care about what particular definition of “activist” you use. I do care about you throwing sand in the air when it comes to who is responsible for this particular decision.
It’s nice that, even after I’ve taken a few weeks off, that I can come back and see that Bricker, et al continue to blame every horrendous decision by any court on the bogeyman of those who disagree with their manner of constitutional interpretation. The more things change…
You know, I had never realized before that if my standards for how to appropriately interpret law are not Textualist, then I have no standards whatsoever. Bricker, you’re spewing bullshit in this thread. Just because someone isn’t a textualist doesn’t mean that anything goes with regards to legal interpretation. Jesus fucking H. Christ on a pogo stick.
Perhaps YOU, personally, would restrain yourself when armed with the tools of substantive due process and keep your Penumbra and Emanation Detector set to minimum. I have every confidence that you would use these tools sparingly.
The problem is when you authorize the USE of such tools, they will eventually be used by persons unencumbered by your delicate sensibilities, and that danger is what I object to.
So I’m not saying that everyone who isn;t a textualist is unprincipled with regards to legal analysis. I’m saying that everyone who isn’t a texualist or some form of originalist is responsible for opening the door that lets the crazies in.
You totally don’t get it. You seem to think that there is only one way to understand the language in the Constitution, and any deviance from that allows judges to do whatever they want. THAT is the view I’m calling bullshit. But that is precisely what you are arguing. And it is bullshit. There are multiple ways to understand the language of the Constitution, and just because I don’t understand it the way you do doesn’t mean that it isn’t the language of the Constitution that I’m understanding.
This crap that I somehow judges should be empowered to go beyond the Constitution is nonsense. I don’t. I think they ought to be constrained by the Constitution every bit as much as you do. Where we differ is on what the language means and how it ought to be understood. I wish you’d get that through your thick skull. You trot out this stupid argument every single time someone comments unfavourably on a court ruling, and it has become extremely tiresome.
If you could manage to articulate PRECISELY what sort of bounderies exist for your method of interpretation, and the principled distinctions that let you arrive
at those bounderies, I might believe you.
:rolleyes: You can’t articulate PRECISELY what sort of boundaries exist for your method of interpretation either. If you think that any substantial theory on a large, complex topic such as this is going to be immune to hypothetical counterexamples it cannot answer satisfactorily, I’ve got news for you.
The fact that I don’t have a fully articulated theory of interpretation that will answer every single one of your questions doesn’t mean that my thinking on the subject of jurisprudence isn’t informed by principles. I’ll give you a hint to get you started. You’re a strict deontologist. I’m a consequentialist. They are both principled views.
Out of curiosity, if you’re a textualist, why do you take an originalist view of the 14th Amendment?
I find it necessary to note that, while Jodge Luttig wrote the decision, and he is a George H.W. Bush appointee, the case was assigned to a three judge panel.
The decision was joined by both of the other judges, making it unanimous. The other judges, M. Blane Michael and William B. Traxler, Jr., were both Clinton appointees.
The discussion about activism is one thing, but posters who want to paint this as a horrible fault of the right wing ought to keep this fact in mind.
Does the President derive power solely from the Constitution?
Are non-citizens on American soil protected by the Constitution? Doesn’t the Constitution cover "within the shield of its protection all classes of men, at all times, and under all circumstances”? (Ex parte Milligan, 1866)
And from the same case, aren’t civilian courts supposed to be used when they are available?
I know we’ve touched on these, but the answers have been a little elusive.
Clearly the Constitution does not do this, as the saboteurs in the Quirin case were not guaranteed anything resembling constitutional protections. They were tried by military tribunal, and six of them were executed. All of this took place in a period of a few months.
The Court in ex parte Quirin explicitly squared that decision with Milligan.
What I don’t understand is how this issue ends up back in a federal court when the Supreme Court has already ruled on Padilla v. Rumsfeld.
The government argued that the Commander in Chief’s power to conduct war necessarily implies that the President alone could judge military necessity and that the military therefore had jurisdiction over a citizen accused of collaborating with the enemy. (I’ve mostly used the language of the ruling, but altered it slightly.) The Supreme Court rejected these arguments.
Is this still a separate issue?
BTW, Mr. Moto, that same SCOTUS decision had this to say about ex parte Quirin:
Do you really want to support a SCOTUS decision that is generally held is such disregard and one that was made under such horrid circumstances? It was not one of our finest hours. And it was a black mark against President Roosevelt.
It depends on the context in which it’s being used. Hounds bay. An attacker is kept at bay. I can saddle up the bay for a ride. Or I can take the boat out on the bay for some fishing.
To a textualist, words mean something in the context in which they are written. We cannot literally apply the Fourteenth Amendment, because literally it forbids any and all classifications: age, sex, criminal conviction, none are permitted under a literal reading. It is necessary to take into account the context of the writing in order to give it effect.