While suffused with a warm glow at your encomium, I have to acknowledge that the present title doesn’t come close to “jew balls too small” for verve and flair.
No.
As goofy as it sounds, Congressional intent is not divined by asking Congressman what their intent was.
http://blogs.washingtonpost.com/earlywarning/2005/12/the_curious_sec.html
William Arkin has a take on this issue that sounds about right–and it goes way further than “oh my, 'sama has phoned a number on Atlantic Avenue in Brooklyn, shucks–we’d better listen in…”
Here’s a thought experiment to drive the point home:
Do you think the Equal Protection Clause or the Due Process Clause mandates state recognition of same-sex marriage?
How can it? The intent of the people that drafted those words was CERTAINLY not to permit same-sex marriage by the words they wrote.
Right?
I was specifically excluding legislative intent as the object of inquiry.I meant to direct your attention to the state of mind of the criminal. Having asked permission and been refused, may he still blink in confusion and claim to have been (honestly) mislead?
herewith (in full, because I have no index to the reliability of the poster) is a response to Arkin’s post which has some interesting tidbits:
The name of the program is still T I A run by D A R P A. It was never disbanded just “b lack b agged” deep inside the Pent agon. In fact here is the address of the building it is run from:
3701 Fairfax Drive Arlington, Virginia
Go there and you will see the 24/7 Cantwell security guards. Go to a restaraunt near the site at lunch you’ll see the folks with the D A R P A badges eating sandwiches.
Not only do they track EVERY bank transaction, including ATM, credit, check and check cards, but it is done in real time. THEY KNOW WHERE YOU ARE HOW YOU TRAVEL WHAT YOU BUY. THEY TRACK YOUR CELL PHONE CALLS AND MONITOR THEM FOR KEY WORDS. THEY TRACK YOUR PAY PER VIEW MOVIE PURCHASES (S PICE C HANNEL ANYONE, ONLY IF YOU WANT TO BE MONITORED BY THE JUSTICE DEPT’S PORN TASKFORCE) AND TIVO RECORDINGS. REMEMBER WHAT THE P A TRIOT ACT SAYS WE ARE ALL TERROISTS.
WELCOME TO THE POLICE STATE
Posted by: orwell | Dec 23, 2005 3:45:18 PM | Per
No, he may not.
He may still claim, legitimately, that the intent of the WORDS Congress passed permits him to do something that the Congress-critters themselves didn’t plan on his being able to do.
There’s no way to avoid that conclusion.
Wrong, and not particularly difficult to say why. Their intent was to establish broad principles which had certain necessary consequences. The act of Congress upon which your entire sandcastle rests did not establish broad principles, but only authorized certain specific actions. Allowing the President unchecked power to do whatever the he wants to whomever he wants as long as he can label it “war” or “defense” or “anti-terrorism” was *not * a necessary consequence of it, or even a reasonable one, any more than your creative (and similarly entirely unsupported) redefinition of the words “fifteen calendar days” is a necessary or even reasonable consequence of it. “Words have meaning”, you’ve enjoyed saying here - but is that only the Queen of Hearts’ meaning of “meaning”?
You’ve been asked many times to show that, to support your assertion, and all you can say amounts to “Yes it did too (stamp of foot)”. Can you *finally * cite any law, any precedent, any line of reasoning held by anyone other than yourself that that is the case, or will you *finally * admit you are just making up some result-driven shit and calling it “law”? Hint: Does the total lack of support you’re getting from anyone including the other lawyers here make any kind of impression on you?
Here’s a precedent for you - the line of “reasoning” (to be kind) you’ve used here to support Bush’s un-American arrogation of power is pretty much the same one that Napoleon used in interpreting the Directory’s commission. It meant the end of the Republic.
I don’t know what bizarro-world the law has turned into, but in the REAL world, things do not have intent. In order to have intent, you have to have things like consciousness and volition, neither of which is a property of vocabulary.
Words have meaning, and legislators may have given evidence of intent which may help judges interpret the meaning of words. But unless your profession has gone right through the looking-glass, the words of legislation do not themselves have intent.
And you are aware, of course, that there are plenty of Republicans who will say it was there intent to give the prez exactly the powers that he claimes to have. So, where does that leave us?
My rejoinder to this, which you’ve presumably seen several times but never to my knowledge reacted to, is that the Constitution includes a lot of broad phrasings and generalized authorizations. I feel relatively confident that the FF did not contemplate a New Deal-era wheat farmer when they authorized the regulation of “interstate commerce.” I am absolutely certain that they never intended the creation of an Air Force. But each is constitutional under the idea that broad permissions and prohibitions may well encompass something not overtly contemplated by the framers, so long as it is logically within the meaning of the text or a reasonable nexus thereto.
The Fourteenth Amendment says that the states shall not “deny to any [individual]… the equal protection of the law.” They did not specify what they meant by this; it’s broad language. They did not say “on the basis of race” for example. They simply said that everyone is entitled to “equal protection.”
That means that it’s up to the courts to determine whether something constitutes “equal protection” or not.
I find it strangely hard to make the point that we do not have an all-powerful state which can do anything it chooses except those few things that are spelled out as prohibitions. I managed to get that information clear in eighth grade. One would think the clear language of the Tenth Amendment would make that point: if it’s not delegated to the Federal government, and it’s prohibited to the states, then who retains the power?
There’s a principle of interpretation worth mentioning here which has nothing to do with constitutional jurisprudence, but a great deal to do with the point at hand, and it has to do with gnats and camels.
Even in bizarro law world, words do not intend, as you succinctly (and with somewhat more patience than I was willing to muster in the endeavor…) point out.
Disclaimer:I’ve been into the Nyquil again…
That said, when one contemplates Jurisprudence by Bricker, it is as if a great amnesia has settled across the common law.
The Barons never broke John at Runnymede
The Great Writ is toilet paper.
Star Chamber courts (which is what we have here) are just peachy keen.
I am trying to enunciate (through the nyquil haze–I think it’s purple–)
that there were really good reasons why we have Habeas Corpus and we insist on open courts, and stuff like that.
And 9/11 did NOT change the propensity for the executive to want all the power all the time and the necessity to place that option beyond the reach of any individual.
I’ll take you word for it although that wasn’t the gist of the explanation given by an attorney on MSNBC.
you are both right. the confusion arises from the posture of the case as it left Luttig. At that point, padilla was seeking ANY sort of due process, and the goverement, with Luttig’s agreement, was denying it to him. That’s the case that will go up on Padilla’s now resurrected appeal of luttigs order that luttig refused to vacate.
On the other side, the government maintained that because they were moving him to the civil system, their original denial of ANY due process (which Luttig signed off on, may his name be stricken from the book of judges)could not be appealed
With you providing cites. Which names of those “plenty of Republicans” do you have?
With more proof of the stupidity of originalists.
The explanation was along the lines that the government had gone to great lengths and taken up a lot of the court’s time to convince Luttig and the court of appeals that it was really important that Padilla’s status of having recourse through the courts was vital to national security. Then when it looked like the Surpreme Court might just possibly take notice, the DOJ said, “OH, never mind. We want to put this in civil court anyway.” That apparently pissed the court of appeals off because it gave the appearance that the government was not leveling with them as to the real reasons behind its argument.
We are so much further along than “if you talk to Sama, you talk to (Uncle)
Sam”