This newfound respect for the black-and-white text of the law… does it begin and end with this case? Why or why not?
Just curious - why did you abandon your respect for the black-and-white text of the law to choose an interpretation that would benefit your political views? Are you not guilty of the same crime you are trying to pin on others?
I feel no conflict with the times (I’m sure I’ve done it) I said a law was stupid. There are stupid laws. This FISA is not one of them. It clearly gives provisions for wiretapping, bugging etc when necessary. It gives enough leeway so the things that must be done are possible. Some might argue it gives too much leeway. Everything the president wanted to do, was already allowed, if he only followed this law. Get a wiretap, go to the secret FISA court afterwards, and get a warrant afterwards. No muss, no fuss, no loss of time waiting for authorization. He simply did not want to bother with warrants or authorization at all, not even after the fact. Why?
I suppose that if I went for the warm fuzzy “it feels like” argument, you’d go all textual on me.
Didn’t you already say that you thought Bush was lying? I can’t remember the exact thread, but I’m almost certain you did.
In fairness, I did ask him to defend Bush, as a hired-gun, if you will. I sort of asked him to play devil’s advocate.
That’s cool with me, just so long as it’s understood. Like that television guy would say, “I did not know that”.
Yes, precisely like that. That’s a good sign that Bush is a by-results guy, and adopts the mantle of a textualist only when it suits him. But we knew that already – look at the position the Justice Department took in the assisted suicide and medical marijuana cases. Both of those are clearly issues of state powers. The federal government had no business in them. Yet the Bush Justice Department charged into each. Clearly the respect for states rights also ends whenever the state in question is doing something they don’t like.
Yes, I was just responding to bup’s Devil’s Advocate request.
No. I’m merely defending Bush’s view of what he was doing. My own view is that it’s wisest to adopt a textualist approach in all cases, and under that rubric, there’s really no question about the illegality of the program. But since we as a nation do NOT adopt textualist views, Bush is certainly entitled to, in good faith, adopt a more flexible view. It calls into question how committed a textualist he is, but I’ve observed before on these fora what I said above: Bush is a results-my-way guy, adhering to textualism only when it suits him.
It’s not a matter of textualism or whatever other method of interpretation you want to take. It’s a matter of reading the goddamn statute, and following the law. You don’t need to be a textualist to see the obvious illegality of the program, it’s there in black and white. The only possible issue that that could, if you squinted at it from afar and upside down, is the determination of whether the President has the power to conduct foreign surveillance on domestic citizens, and to what extent Congress can regulate that area. Seeing as how that is not a power granted in the Constitution, a very strict constructionist may say he does not have the power, but that’s a view that has been resoundingly rejected. The President does have the power to conduct foreign surveillance, what he doesn’t have the power to do is violate the law. It’s not “textualism” vs. some other method of constitutional interpretation, it’s about the President putting the executive branch above the law. As much as you like to make every issue that ever arises as a chance to take cheap shots at non-textualists, this just isn’t one of them.
I think I get it.
When you said
“So what? What the president was doing was not illegal. It was only illegal in your, and your brethern’s, fevered imagination.”
that was not Bricker speaking, it was Bricker channelling George Bush.
And when you say “I think X is contrary to the law”, you sometimes mean “X is contrary to the law when you adopt the Bricker view of the law, which ‘we as a nation[sup]1[/sup]’ do not”, and sometimes you mean “X is contrary to the law even if you take a non-textualist view of the law, like ‘we as a nation’ do.” Or , to amend the second part of my previous sentence, perhaps you think that, since ‘we as a nation’ do not adopt textualist views, in practice the law is a big free-for-all and since interpretations are subjective anything goes in a courtroom depending on the judge.
[sup]1[/sup]Does ‘we as a nation’ mean the legal establishment outside of textualists, including judges, prosecutors, defense attorneys? Or does it mean the unwashed masses that haven’t gone to law school?