Bricker, is it even possible for you to feel passionate about something? I find it difficult to deal with the smooth stone of your facade over this, because I used to think we (America) were the good guys. I’ve seen this country going down a road that should have never even been mapped, let alone explored. What is YOUR personal opinion about this route we’ve been taking, with “aggressive interrogation” and extraordinary rendition and warrantless wiretapping and a DoJ that’s acting more as the president’s personal lawyer than as the people’s? Fuck the legalities. How do you personally feel about the turn we’ve taken in the last six years?
I think it’s an unfortunate but pretty predictable response to 9/11, in the same way that WWII brought about mail censorship and internment of some US citizens because they were born somewhere else. It’s an overreaction that’s not wise.
But I also take issue with your “we’re the good guys” meme. I don’t want to be insulting here, so please don’t take this the wrong way… but what history have you studied?
You seem to feel that the idea of a one-way rachet applies to civil rights and, indeed, all attitudes: once we accept a particular right or loosen a particular attitude, it’s thereafter fixed in its new place, and can only be further loosened, never reversed.
You ask me to get passionate about the abuses that are happening now? Why? My passion was spent on the abuses that started to spin up in the Sixties. When the legislative process can be trumped by ideological concerns we have a problem, but large swaths of the country were perfectly happy to pervert our understanding of the notions of self-governance because their pet causes were being nutured and sustained.
Now you are amazed that a branch or two of government is stretching the limits?? Fuck, man, you’re not upset at that. YOU’RE UPSET BECAUSE YOU DON’T LIKE THE RESULTS. Don’t appeal to my outrage. Sure, I’m upset. But I feel like the neighbor watching the obnoxious kid across the street total his parents’ car after years of complaining about the kid to the parents’ deaf ears. It’s not preety watching the car wreck. But there’s a part of me that watches in grim satisfaction.
This will pass. Things will rachet back to about where they should be.
What difference does it make what he “feels” about it? Bricker said specifically that his morals preclude waterboarding. So what? As is pointed out, he’s not the duly elected President of the United States.
This “debate” (the red herring one that broke out between you two 
) started out as a dispute over your claim that supporting the nominee was equivalent to supporting the position that the President is above the law. It mutated to a dispute over your contention that, “Mukasey’s contention that the president has extra-constitutional powers if national security demands it.” Bricker is saying that the assertion by the nominee is that the President HAS the power to do what he has done, because it is implicit in the grant of authority to him under Article II. I don’t see that you’ve bothered to respond to this at all. Instead, you’ve gotten all upset over the fact that Bricker isn’t passionately attacking the statements of the nominee.
The nominee has espoused a position regarding the President’s powers. We understand that you disagree with that position, though I’m still not clear what argument you are making other than that you think we ought to be quite clearly asserting that torture in all its forms is a no-go for our country. From a moralistic standpoint, you might be right (though note that morals are relative, not absolute, and I doubt you’d cede to me the right to determine what our country does on the basis of my moral code). But in a debate about whether or not to support the nominee, I’d think you should at least address the legal issues raised by Bricker, because they go to the heart of the dispute originally raised by the OP. Specifically: is the nominee supporting an attempt to subvert the Constitution by the President? Or is the nominee noting that Congress does not have the Constitutional authority to second-guess the President on these issues, because they fall under his control by virtue of Article II? If the latter is true, and you disagree with what he is doing, the remedy is to elect a new president when we can, because after all, we elected the current one and, absent illegal activities, we can’t remove him, even if we don’t like everything he does.
Now if you want to debate whether or not America’s role in the Mid-East the last few years has been morally correct, open a debate thread on that, and see if Bricker has a comment. 
Or, hell, he can just offer one here… 
You’re both right, that I’m letting my outrage get the better of me. I’m going to go cool off a bit, I think. I apologize, Bricker. I’m not feeling really good about American democracy about now…
I don’t want to be insulting here either, Bricker, since I do respect your intellect, but what political science have you studied? The fact that we elect representatives to make political decisions for us does not legitimize the outcomes of these decisions. The legislative process does not ensure that voter preferences are made reality because of the well-known credible commitment problem. We create extra-legislative institutions to deliver desired outcomes just because of this problem. It is natural, expected, and absolutely required that we have these institutions since the collective preferences of the people are not necessarily represented in the legislature.
In general, I would argue that using these institutions to mitigate the credible commitment problem and the time inconstancy problem is fine and well. Using legislative or executive authority to undermine these institutions is not.
Apology accepted, and incident forgotten!
A fair question, and the answer is: a couple of Poli Sci classes in college. Since then, the self-study of a political junkie.
My objection is simple: it’s not kosher to support a process only when it delivers a result you favor. You may disfavor the result without suggesting the process is flawed or is being executed in bad faith.
You speak, for example, of the collective preference of the people. That’s held in zero regard by most members of this board when the issue is same-sex marriage; most active participants here would welcome a court- or executive-ordered institution of same-sex marriage, even if the collective preference of the people clearly opposes it.
When the majority of people favored war in Iraq, their will was similarly held in disdain. Now that a majority oppose it, the Will of the People suddenly achieves Holy Writ status.
It’s fine if you wish to argue that the people’s will should be summarily ignored, and that your positions are Correct (the capitalization is intentional). It’s not fine to point to popular support as the reason for your mandate when you have it, and reject popular support as a milestone when you lack it.
You speak of using legislative or executive authority to undermine these institutions. Did Roe v. Wade do that? Did Goodridge v. Department of Health do that? Or were they enlightened steps intended to bring the poor befuddled masses into the light?
I am an opponent of abortion - I believe it’s wrong. But that’s not what offends me about Roe. If a state were to pass a law guaranteeing access to abortion for women, I might fight against it, speak out against its wisdom, vow to unseat the legislators that passed it. But I would not claim it was less than a legitimate exercise of the plenary power of the state, expressed through its legislature. Roe created a constitutional right out of smoke and mirrors because guaranteeing access to abortion was the desired result, and not all the state legislatures agreed.
I am in favor of same-sex marriage. I believe it’s incumbent on a society to offer precisely the same benefits to same-sex couples as it does to opposite-sex couples. But I would be disappointed if the result were obtained by a judicial decree that found a constitutional “right” to these unions. I would be disappointed if a city mayor or town clerk took it upon himself to issue same-sex marriage licenses. I favor the result, but not by undermining the process.
Now we come to the issue at hand. The President has asserted that the powers he seeks to exercise are a necessary and proper consequence of his authority under Article II. He’s doing precisely what the city mayor, the town clerk, the various judges above have done: imposing his view of how things SHOULD be. If a President had issued an Executive Order to the IRS to henceforth permit same-sex couples to file married tax returns, I feel like he’d be cheered and praised here. It’s not the misuse of executive power that causes this current consternation – it’s that his uses of it don’t agree with your views. But that’s precisely what you cannot argue: none of these issues are objectively clearly decided. You can’t cheer the undermining of legislative perogative when you gain the benefit and then condemn it when your ox is gored. You cannot point to your ox and say that objectively, it’s different than the other oxen in the pen. Another guy two seats over feels just as strongly about his own favored ox.
You said, “The fact that we elect representatives to make political decisions for us does not legitimize the outcomes of these decisions.” No, it does not. But it’s a legitimate use of the process. Criticize the wisdom of the decisions; argue for their repeal; resolve to remove from office those that fostered them. But don’t argue the illegitimacy of the process because you don’t like the way the wind is blowing.
If Congress wants to ban it, they can do so themselves. Relying on others to interpret vagueities of US law, then using it as a tool to bash them for shallow political gains, is simply rank hypocrisy. I have no real opinion or interest in the matter myself, but Congress needs to get serious about what it wants and simply do it.
That’s cool. I am not trying to be a jerk here. I just don’t want to speak a different language or throw around unhelpful jargon.
My response is that we are not necessarily talking about the same thing. We have institutions and processes that are designed to intervene (-fere) with the legislature when there is a disconnect between the revealed preferences of the people and how they are realized in congress.
It sucks to be on the losing side of one of these interventions, but it is what it is. They are designed to protect us and to scrub our preference aggregation system (voting & legislature) of some of its collective irrationality.
Every preference aggregation rule and, by extension, voting rule contains collective irrationality. You don’t have to take my word for it: it was proven by Kenneth Arrow and is now known as Arrow’s General Possibility Theorem. We have to have strong institutions to help solve this problem. Sometimes I’m on the winning side of these institutions, sometimes I’m not.
I draw a distinction between seeing these institutions in action to close the gap between revealed preferences and preferences in the legislature and actions taken to erode these institutions in order to achieve some result.
The problem, as always, is how these collective preferences are aggregated. We have one way, typically first-past-the-post with some notable exceptions. There is little doubt in my mind that I could construct an alternative aggregation rule with all of the desirable formal properties of first-past-the-post that would pass same-sex marriage. This is relevant because it casts doubt on the ability of the legislature to aggregate our preferences optimally, and thus might justify the intervention of an institution to check the legislature. If two different outcomes are generated when you change the voting rule, the matter bears a deeper look.
As a little positive political theory aside, the only preference aggregation rule that satisfies all of the basic requirements of rationality is just that, a dictatorship. It’s kind of interesting and extremely depressing.
I take your point, though. But I would respond that if popular support isn’t being rolled up right, then it is worthless as a mandate or as a milestone.
For example, I do not think Roe v. Wade caused damage to the institution of the legislature. I believe it was a judicial intervention at a time when there was a deep disconnect between preferences and the results of their aggregation. I have no opinion on either the formation of these preferences or on whether or not the masses were befuddled. I also wasn’t there at the time, so I have no firsthand knowledge. Nor was I aborted.
The passage of a piece of legislature may be “legitimate” insofar as it did not deviate from the process, but fundamentally flawed if the rule that aggregated it creates irrationality. I’m not an attorney, I really cannot comment knowledgeably on the judicial reasoning or lack thereof. I am only commenting on rules and voting systems.
Just to reiterate for clarity, I hear what you are saying and do not necessarily endorse the above actions to deliver a same-sex marriage outcome. What I am saying is that it is critical that we have extra-legislative processes to deliver these outcomes when there is overwhelming reason to believe that our processes delivering irrational outcomes. The $64k question is when to invoke these processes and under what circumstances. This is not something formal logic and set theory are going to tell us, unfortunately. We have to decide this on the fly as a society by either using them or not using them.
We agree, but it is not entirely clear to me that these are the same things. I am not so sure that this isn’t a misuse of power. But because I don’t understand the issue yet to my satisfaction, I really don’t know. But I do not necessarily believe this is just an issue of someone else’s ox getting gored.
There is either an objective standard for deciding an issue, or there is not.
You note:
The same is true, I believe, of matters like partial-birth abortion. Isn’t it?
And so does the issue of banning partial-birth abortion bear a deeper look?
Given the fundemantal lack of consensus on these issues, I think the idea of an objective standard is not consistent with the reality. Sorry. I can argue one way, you another, and the matter will be decided by the real decision makers whom we empower to answer these questions.
I am not really sure what you are getting it with respect to d & x… As a society, we can take as many looks at dilation and extraction as we want. And we do. Likewise with same-sex marriage.
You like our legislative process. I get it. I think it has a lot to recommend it. But I am getting the impression that you think that my point of view is not relevant.
No, no – to the contrary. I’m just saying that if your point of view doesn’t support a system of some kind where (a) the rules for making a decision are transparent and (b) gives me an equal say in the process, then I don’t sign up to your point of view.
It’s my impression that you want to be able to go outside the legislative process when you want, and stick to it when you want. I’m suggesting that as a system of rules we can rely upon, that scheme doesn’t work well.
If I’m still missing your point, please try again to explain it. I’m slow, but I can lift heavy things…
The treaty to which we’re a signatory.
IOW, it’s already illegal. Mukasey knows it, obviously. But if he said so, then he’d have to investigate and prosecute. But that would mean *enforcing * the law, as the head of the Justice Department is supposed to do, not finding loopholes or distortions or simply ignoring the law in order to permit the President to do what he wants. The main differerence between him and Gonzalez is that he seems more inclined to simply ignore the law than argue it doesn’t exist. It is deeply disappointing that you cannot join in the desire to have the chief enforcer of the law take ithe responsibility seriously.
Now define pettifoggery. Your turn. :dubious:
We agree that standards for decision-making should be transparent and ultimately reducible to a set of basic rules. Are they in practice? No. But in practice, our simple rule of majority and the procedural rules of the legislature are frequently abused. Even without abuse, it is well understood how powerful strategic agenda-setting is in the legislative process. Extra-legislative institutions should be built so as to counteract abuse and procedural limitations, not feed it. They have their own limitations which, as I am sure you have guessed, are offset by the legislature.
Your impression is partly right. What I want is for a preference aggregation rule whereby my preferences are dictatorial. I don’t really lose any sleep knowing that this is unlikely.
But I believe strongly in extra-legislative institutions not for me but for anyone. Anyone can ultimately end up before the Supreme Court. Sometimes I like its decisions, sometimes I don’t. But no matter how much I might loathe individual members of the court, I don’t doubt that they take their roles extremely seriously and approach the matters honestly and in good faith. If I did, it would be conveniently easy for me to blame outcomes I didn’t like on these things.
Anyone can gather in front of the White House and agitate for change. If it’s just one person, there is little reason to believe that there is anything deficient about collective preference aggregation. When there are multitudes, think again.
What I do not support are actions that undermine or impair the ability of either the legislature or any of these institutions. Bounds can be put on these institutions with respect to individual issues. I would argue that not being able to criminalize abortion, for example, does not meet this standard. Arguing penumbral executive powers that strictly dominate those of the legislature very well might.
Nice thread guys… Thanks.
From Salon:
Sigh.
Disgusting.
This bothers me even more than the waterboarding thing.
Bricker, respectfully, I take issue with your equating *Roe * to the grabbing of unenumerated executive powers. There are critical differences between a court that protects unenumerated fundamental rights and a President who reads unenumerated powers into Article II.
First, we’re talking about different branches of government, about which we have different legitimate expectations. The President doing some extra-textual Constitutional analysis is more dangerous and egregious than the court doing so, because it is the court’s job to say what the Constitution means, not the President’s. For two hundred plus years, the role of the courts has been to say what the law is and what the Constitution means.
Since Marbury, We the People expect–demand, even–that the court interpret the Constitution in bold ways, that they step on the authority of the legislature and the executive when they see fit. We expect the opposite of the executive. We expect him to exercise his authority gingerly and conservatively, and avoid stepping on the authority of others. We expect those things because we know history. We know that a tyrannous king is more dangerous than a tyrannous court. The court, after all, has no army.
Second, liberties are distinct from powers. Our government is a government of enumerated Constitutional powers. Our people are a people of unenumerated Constitutional liberties. This isn’t to say that aren’t any unenumerated powers. There clearly are. The power to expel unlawful aliens, for example, is unenumerated. But we are rightly much more critical of allowing those powers than we are in granting unenumerated freedoms, and I think that goes to the heart of our democracy. The Constitution clearly–and textually!–says that there are liberties which are unenumerated. You may disagree with the court’s method of defending those liberties–what you might call “discovering” them–but if you don’t allow judicial protection of these freedoms then you eviscerate the role of the court both as a guarantor of the rule of law and as the ultimate arbiter of what the Constitution means. Without an ability to defend fundamental liberties, our only recourse is a clumsy and majoritarian political process–and if the majority didn’t already want to take away that liberty, we wouldn’t have recourse to the court in the first place.
I think you can wholly reject substantive due process and still accept that we ought to be more critical of executive power than we are of the people’s liberty.
It looks like Mukasey may have completely fabricated a 9/11 story, exploiting the tragedy–SOP it appears–for political purposes.
The evidence is not looking very good for him.