JB

A small case of being hoisted by one's own petard: (as Reuters reports.)

LONDON (Reuters) - The United States launched the war to disarm Iraq after accusing Baghdad of concealing weapons of mass destruction.

Baghdad denied having any banned weapons, and so far there have been no confirmed findings of any on Iraqi territory.

President Bush urged the United Nations on Wednesday to lift 13-year-old sanctions on Iraq, which would allow it to sell oil to help pay for postwar construction following the overthrow of Saddam Hussein.

But the sanctions cannot be ended until the U.N. inspection agency UNMOVIC certifies Iraq is free of weapons of mass destruction and the 15-nation Security Council adopts a resolution lifting them.

Here are some possibilities:

(1) They are there and we will find them if we keep looking.

(2) The weapons were distributed to or sold to terrorists during the overthrow of Saddam's regime and the chaos that resulted, which is precisely what the Bush Administration was repeatedly warned about as a reason not to attack Iraq.

(3) The weapons are in Syria, and we should go to war with them to see if they are there. Unless they are in Iran, so we should go to war to find them there, unless... well, you get the general idea.

(4) The Bush Administration lied to us, and the accusation about weapons of mass destruction was essentially a pretext for overthrowing Saddam.

Well, that makes me feel much better.

I'm hoping we find them in Iraq, and find lots of them, soon.

I don't trust the Bush Administration's motives for going to war, especially since the Administration constantly changed its stated objectives, from regime change (in 2002) to disarmament (during the debates at the U.N.) to liberation of the Iraqi people (after it was clear that the U.N. would not approve the adventure). I do think we were lied to, and lied to repeatedly. And I continue to think that the Bush Administration doesn't have a clue about how long the reconstruction of Iraq will take and how great a danger it has unleased by destabilizing the region. Nevertheless, if if large caches of weapons of mass destruction are found, that will help justify the war in hindsight.

I repeat: Let's hope that we find Iraq's weapons of mass destruction, and find them soon.

JB

The Information Society Project at Yale Law School, which I direct, held its spring conference on Democracy in the Digital Age. The conference was a rousing success, if I do say so myself (and I do). James Grimmelmann, the well-known enfant terrible of Lawmeme, offers the play by play.

JB

From the BBC News (via Atrios, via Tom Runnacles):

The British will take heart from the more cautious voices coming out of Washington. Lawrence Eagleburger was Secretary of State for Bush's father, the first President Bush, and he and other leading veterans of the first Bush administration warned last summer about the dangers of attacking Iraq. In fact they were thought to be acting as proxies for their old boss, who was said to be privately unconvinced of his son's policies. Now that the military campaign seems to be drawing to a close, we ask Mr Eagleburger if it is true that winning the peace will be much harder.

In an impassioned interview, Mr Eagleburger also tells us that if George W. Bush were to take military action against Iran and Syria, he should be impeached.

Lawrence Eagleburger, who was US Secretary of State under George Bush Snr, told the BBC: "If George Bush [Jnr] decided he was going to turn the troops loose on Syria and Iran after that he would last in office for about 15 minutes. ... In fact if President Bush were to try that now even I would think that he ought to be impeached. You can't get away with that sort of thing in this democracy."

I was curious whether Eagleburger was impeachment happy, so I found the following story, also from the BBC on November 19, 1998:

Lawrence Eagleburger, a former Secretary of State in the George Bush administration, said he believed [President Clinton] would survive - but in a much weakened state.

He told BBC Radio 4: "I don't much like him as president but I don't want to see him impeached."

Well, at least the man has his priorities straight. Lying about sex under oath is one thing, bringing untold chaos and destruction on the world is another.

BTW, in case you're wondering, no, we haven't attacked Syria or Iran. Yet.

So this is all academic, but then I am an academic and these sorts of things interest me.

You might well be wondering at this point, does Eagleburger have his constitutional law right? Can a president be impeached for taking the country to war repeatedly? Well, I'll discuss that one in a future post. Stay tuned.

JB

At an address at the University of Mississippi, Justice Antonin Scalia spoke out against the dangers of treating the Constitution as a "living document." (courtesy of Howard Bashman as well as Patrick Carver, the Ole Miss Conservative)

Scalia, 67, a conservative justice known for legal decisions based on strict interpretations of the U.S. Constitution, said people who want change in society should use the democratic process, not the courts, to bring it about.

"What makes you think that a living Constitution is going to evolve in the direction of greater freedoms?" Scalia asked. "It could evolve in the direction of less freedom, and it has."

When the man is right, he's right. When judges make up constitutional doctrines that keep democratically elected legislatures from reforming society and securing liberty and equality, they are failing to do their job properly.

A few examples might include Scalia's own votes to strike down affirmative action programs in Croson and Adarand, and his votes to strike down damage remedies when state governments violate federal civil rights laws in cases like Kimel and Garrett.

On the other hand, Scalia pointed out, when judges refuse to enforce constitutional guarantees against unconstitutional legislation, they also fail to do their job, and this is so even if the meaning of the constitutional guarantee is more expansive than the original understanding:

In 1989, he cast the deciding fifth vote in Texas v. Johnson, the decision that struck down laws against burning the American flag. At the time, conservatives were incensed. Thursday afternoon, Scalia told the UM crowd in that case and others, he was handcuffed by the Constitution.

"I would have been delighted to throw Mr. (Gregory Lee) Johnson in jail," Scalia said of the man tied to the flag case. "Unfortunately, as I understand the First Amendment, I couldn't do it."

Now there's no evidence of which I am currently aware that flag burning was protected under the original understanding of the Free Speech clause in 1791, so Scalia is not making an argument from the original understanding. Rather, he is making an argument, as he forthrightly says, from what he understands the First Amendment to mean.

Good for him.

Now if, according to Scalia, the best interpretation of the meaning of the First Amendment has changed significantly from the original understanding-- a position which Scalia must apparently hold given his views not only on flag burning but on many other subjects like commercial speech-- then it is up to judges to do the best job they can in interpreting the document so as to protect fundamental rights from legislative depredations.

But please, whatever you do, don't call this a living Constitution.