Positive Liberty

I’m glad to see Ed Brayton pick up on this video of John Lofton making a fool of himself with the help of the late great Frank Zappa. My favorite moment is when Zappa tells Lofton to kiss his ass.

Justice Alito’s dissent

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Justice Thomas’ dissent

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It’s important to note, whether countering the claims of the likes of Roy Moore that the God of the civil religion, that is the God to whom the Founders made their public supplications, was a vague, generic and undefined God. And the Founders thought it was absolutely necessary to not define God’s attributes too specifically or indentify him as the God of the Bible.

The Founders specifically drew a connection between indentifying God’s attributes too specifically and denying the rights of those whose religion denied those specific attributes of God. The Founders faced a dilemma: They posited a conception of individual rights which were both universal and antecedent to majority rule. Moreover, they needed to refute prior claims of right such as Divine Right of Kings which explicitly invoked God to justify such claims. The Founders thus needed to tie their notion of rights to God to make such individual rights unalienable. Continue Reading »

Justice Scalia’s dissent and the question of jurisdiction

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My second attempt at the academic job market recently came up short. No, I’m not grousing about my unhappy fate below the fold.

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The flood of spam has abated. Only a small handful get into the moderation queue now, and I understand that these may well be the old-fashioned types who still spam by hand.

Thank you to everyone who sent advice by e-mail; you know who you are, and there were many more of you than I’d expected. Consider this an open thread. Chatter away. Better yet, read up on Hamdan, then chatter away.

Justice Kennedy’s Concurrence.

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I’ve finished only Justice Stevens’ opinion. It’s a fractured opinion, so I’ll try to describe which parts are controlling law and which are not. I’ll skip for now past the procedural issues—whether the Court has jurisdiction, especially after the December 30, 2005 Detainee Treatment Act—to the merits of the case.

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Great news, or so it seems so far: the Supreme Court has held that President Bush cannot subject Guantanamo Bay detainees to military tribunals. I haven’t read the opinion yet, but this is from the syllabus:

The military commission at issue is not expressly authorized by any congressional Act. Quirin held that Congress had, through Article of War 15, sanctioned the use of military commissions to try offenders or offenses against the law of war. UCMJ Art. 21, which is substantially identical to the old Art. 15, reads: “The jurisdiction [of] courts-martial shall not be construed as depriving military commissions … of concurrent jurisdiction in respect of offenders or offenses that by statute or by the law of war may be tried by such … commissions.” 10 U. S. C. §821. Contrary to the Government’s assertion, even Quirin did not view that authorization as a sweeping mandate for the President to invoke military commissions whenever he deems them necessary. Rather, Quirin recognized that Congress had simply preserved what power, under the Constitution and the common law of war, the President already had to convene military commissions-with the express condition that he and those under his command comply with the law of war. See 317 U. S., at 28-29. Neither the AUMF nor the DTA can be read to provide specific, overriding authorization for the commission convened to try Hamdan. Assuming the AUMF activated the President’s war powers, see Hamdi v. Rumsfeld, 542 U. S. 507, and that those powers include authority to convene military commissions in appropriate circumstances, see, e.g., id., at 518, there is nothing in the AUMF’s text or legislative history even hinting that Congress intended to expand or alter the authorization set forth in UCMJ Art. 21. Cf. Ex parte Yerger, 8 Wall. 85, 105. Likewise, the DTA cannot be read to authorize this commission. Although the DTA, unlike either Art. 21 or the AUMF, was enacted after the President convened Hamdan’s commission, it contains no language authorizing that tribunal or any other at Guantanamo Bay. Together, the UCMJ, the AUMF, and the DTA at most acknowledge a general Presidential authority to convene military commissions in circumstances where justified under the Constitution and laws, including the law of war. Absent a more specific congressional authorization, this Court’s task is, as it was in Quirin, to decide whether Hamdan’s military commission is so justified. Pp. 25-30.

More at SCOTUS Blog.

Watching Ronan and Mia Farrow on the view yesterday, they think the answer is yes. Though, as good liberals, of course they don’t want unilateral US action, but rather a coalition of forces conducted under the auspices of the UN.

I think there was a humanitarian case for invading Iraq; however, there are many other nations, like Sudan, where the human rights violations are as bad or worse than what the Iraqi people suffered under Hussein.

Based on the Farrow’s testimony (which I believe to be accurate) it’s really horrible there, a sad testament to man’s inhumanity to fellow man.

I might be persuaded that the UN or the US should invade Sudan to put an end to this horror. Some questions though: (Remembering Somalia) can force effectively tackle this problem? What happens after we invade? Will we have to occupy like in Iraq? Would we have the same problems occupying Sudan (which has plenty of Islamofascists) as we are presently having in Iraq?

Besides Christmas, Independence Day is probably my favorite holiday. It’s the only time of the year when everyone talks about stuff I really believe in.

Aside from remembering the great principles on which our nation was based, however, it’s also a great time for celebrating American culture. Of course, everyone has their own favorite landmarks within that culture—radically different ones, in such a diverse nation as ours. But I have a few recommendations of things which really say America to me. It would be interesting to compare these to what others see as great embodiments of the American ethos. So here are five recommendations for this 4-day weekend.

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My long since departed maternal grandfather could have bought riverfront property in Yardley, PA for a fraction of its present value back in the day. But he remembered the flood of 1955 (which had occurred fairly recently) and didn’t want to risk it. And for a long time, it seemed like a foolish decision.

That area hadn’t seen a flood like that in years — since 1955. Until 2004 that is. And then it happened again in 2005. And now it’s happened again in 2006.

As for me, I’m okay. Even though I have a Yardley mailing address, technically I live in Lower Makefield, and we are not on the river (thank God).

And there’s also all of the other historic towns along the Delaware like Washington’s Crossing and New Hope which are also now hit for the third time in two years with terrible floods.

Remind me not to buy riverfront property in my neck of the woods.

The Senate Judiciary Committee has begun holding hearings on the issue of presidential signing statements. PSS are statements that the President signs along with a piece of legislation that gives his interpretation of certain provisions of the act. Such statements are not new, but Bush has used them more often than any other President in history, by a wide margin, and for increasingly deceptive intent. In principle there is nothing wrong with such statements, but if they essentially say that the President reserves the right to ignore those provisions he doesn’t like, that’s pretty obviously a major problem. And that’s pretty much what has been happening:

Sen. John McCain thought he had a deal when President Bush, faced with a veto-proof margin in Congress, agreed to sign a bill banning the torture of detainees. Not quite. While Bush signed the new law, he also quietly approved another document: a signing statement reserving his right to ignore the law. McCain was furious, and so were other lawmakers…

Bush’s signing statement in March on Congress’s renewal of the Patriot Act particularly riled Specter and others who labored for months to craft a compromise between Senate and House versions, and what the White House wanted. Reluctantly, the administration gave in on its objections to new congressional oversight of the way the
FBI searches for terrorists.

Bush signed the bill with much flag-waving fanfare. Then he issued a signing statement asserting his right to bypass the oversight provisions in certain circumstances.

This website provides an annoated list of every presidential signing statement Bush has issued since taking office in 2001. As you go through them, you might notice a recurring phrase: “The executive branch shall implement these provisions in a manner consistent with the President’s constitutional authority to supervise the unitary executive branch and to recommend for the consideration of the Congress such measures as the President judges necessary and expedient.” In other words, “If I think any of the provisions here are a bad idea, I reserve the right to ignore them.”
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Most of Kuznicki’s post below is stuff I agree with. (Which must be a first.) But he objects that he doesn’t think that there are many Americans who really do wish for our enemies to win the present war, saying “I’m not aware of many radical leftist peacenik Islamic theocrats.” A cute thing to say, but of course, Islamic theocrats are not necessary; all that’s necessary is radically multiculturalist moral relativism, and a radically anti-American view of the meaning of warfare. And we’ve got that in spades.

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