an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The great debate over the rule of law-- and civic courage
In the next few weeks, if not days, there will be votes on two very important bills. One bill would legalize the President's NSA domestic surveillance program and insulate it from judicial review. The other would ratify the President's views on military commissions, restrict the ability of defendants to see the evidence used to convict them, limit the Geneva Conventions' protections against prisoner mistreatment and outrages to human dignity, and eliminate the use of habeas corpus and the ability of an independent judiciary to inquire into the legality of the detention and treatment (or mistreatment) of human beings held at Guantanamo Bay.
I can't remember a time when two pieces of legislation were on the verge of passage that would so radically alter Americans' sense of our country--and its principles-- for the worse.
What is at stake in these two bills is whether we want the President to be free from judicial oversight and accountability; whether we want to maintain a system of secret trials with secret evidence; whether we want to announce publicly that our forces are not bound by the minimum requirements of human decency found in Common Article III of the Geneva Conventions. In their own way, each of these three issues revolves around our fidelity to the rule of law, and the meaning of America as a land where the rule of law is respected.
Our President-- with his prevarications and euphemisms, like "alternative sets of procedures"-- has been unwilling to speak the truth about what he has done in the past and what he wishes to keep doing in the future. He wants to be free of Congressional and judicial oversight when he spies on people in the United States. He wants to hold, imprison, and detain people without letting them know the evidence used to condemn and convict them. He wants to let the CIA and other operatives continue to use abusive and inhumane interrogation methods. And he wants to make sure that those who have engaged in torture and inhumane treatment are never brought to justice or held responsible for their crimes-- including especially those who authorized these terrible practices.
In short, this President wants legislation that will confirm that he is a law unto himself.
What have we come to, as a nation, when our President demands these things and expect us to follow him meekly? He seeks to maximize his power by maximizing our fear. Will we let him?
If we Americans do nothing, and say nothing, the President will get what he wants from a supine Congress. If we do nothing, and say nothing, the meaning of our country-- and our commitments to freedom and the rule of law will be subtly and seriously debased.
The choice is ours. Despite our President's desire that we should be fearful above all things, the only thing we have to fear-- as a great man once said-- is fear itself. If we show some courage, reject his fearmongering, and protest his overreaching, we can still preserve the values we cherish. But if we do nothing, and succumb to the fear he seeks everywhere to spread-- indeed, infect us with-- we will let the current occupant of the White House change the meaning of America.
He says he only wants us to be safe. But what he wants is that we should be fearful and docile and let him do what he wants without opposition. Any objection, his vice President says, will only give aid to our enemies. Protest is misguided, counterarguments are inherently counterproductive. The message is repeated, in ever new forms. Be afraid. Be afraid. We know best. Don't ask what we are doing in your name. It's not your business. It's not your concern.
But it is our business. And it is our concern. And we must not be afraid.
If we are cowardly, we will lose the America we love, and get the America we deserve.
One point that this issue brings up: is there a theory that would create a constitutional limitation on stripping jurisdiction from the federal courts? There is no right without a remedy, and the power to strip jurisdiction would prevent any right. In effect, it would be a statutory repudiation of constitutional provisions.
I do see one potential place there could be wiggle room for civil libertarians, however. While the federal courts would be stripped of jurisdiction, the state courts would not. A state court could still hear these challenges, and removal would not be possible.
The only problem is to what extend a state court could enjoin the federal government. However, they could certainly enjoin private companies from providing information from warrantless surveillance. A state court could at least do something with about the surveillance, while they really couldn't do much to enjoin torture.
The "living constitution," inter alia, killed off any coherent conception of the "rule of law" which doesn't ultimately devolve into subjectivity and an assertion of values. Bush is just taking that idea to it's logical conclusion and using it to advance his political and moral goals. So let's shed the whining about the "rule of law" - what you really object to is the Bush Administration's specific political aims (e.g., the use of torture).