Excellent book. I highly recommend it to the folks here who have missed the war of ideas reported by Teles in favor of a superficial derogation of the conservative legal counter revolution into some sort of a conspiracy theory.
 

Does Tushnet or Teles comment on the extent to which the ideology and legal theories are a veneer covering a power grab?
 

jpk:

What power grab?

Conservative legal theory is about rolling back the unconstitutional accumulation of government power in general and more specifically about reversing the arrogation of legislative power by the Courts.
 

I don't think there's a conspiracy theory involved here. Conservatives don't like certain court decisions. They came up with a strategy to get them reversed. It has been effective, but not completely effective, as some of their main targets have remained on the books.

Where I really have a problem with the conservative legal movement is in what they tell the masses, as exemplified by Bart's despicable comment (the 3rd one in this thread). Conservatives aren't motivated by the unconstitutional accumulation of government power or the arrogation of legislative power by the courts. They are motivated by the advancement of certain results that they favor.

That's why the conservative legal establishment (and Bart) rushed to defend Bush in his seizure of breathtaking executive powers, and it's why in plenty of cases, from due process limits on punitive damages to affirmative action to the Eleventh Amendment, the conservative movement supports the courts' striking down of acts of legislatures.

And the problem is, the message is so coordinated, i.e., there are so many conservatives who know better and are lying, that when you get to the grass-roots level every conservative believes the big lie. They all believe that the debate is between liberals who want the courts to decide everything and don't care about what the law says and conservatives who want the courts to pull back and for there to be limited government.

Conservative counter-revolution? I can deal with that. Heck, I don't even agree with all the Warren Court's decisions. But lying to the masses rather than honestly admitting that conservatives just want courts to strike down different laws and constrain different powers. That's inexcusable, and it taints the entire enterprise.
 

Dilan:

What government powers do conservatives wish to enhance beyond the limits of the Constitution? Give us the conservative counterparts to gutting the limits of the commerce clause and writing the rights to keep and bear arms and to property out of the Constitution.

What court legislation do conservatives propose? Give us the conservative counterparts to the invention of rights to abortion and sodomy or arrogation of Article I and II powers to set rules for captures.

Do not simply offer examples of judgments that you do not like. Show how they increase government power in contradiction to the text of the Constitution.
 

baloney .. the "right to abortion" does anything but increase government power bart .. it restricts the government from exercizing the power of the state over the rights of the individual involved...and imo.. only those directly involved should have any say in the matter at all ..

the entire issue can be dealt with very easily by adhering to the age old practice of minding one's own business ..
 

Jkat said...

baloney .. the "right to abortion" does anything but increase government power bart

This falls under the unconstitutional expansion of judicial power to amend the Constitution. The judiciary is just as much part of the government as is the President and Congress, but far less accountable.

the entire issue can be dealt with very easily by adhering to the age old practice of minding one's own business ...

No more so than the courts finding a right to homicide or child abuse. Perhaps the core function of government is to use its police power to keep one person from harming another.
 

Perhaps the core function of government is to use its police power to keep one person from harming another.

# posted by Bart DePalma : 3:40 PM


Baghdad, for a guy who claims to be really concerned about not harming people, you do seem to love war just a little too much. Methinks you are a lying scumbag. You're not the slightest bit concerned about people being harmed.
 

You're not the slightest bit concerned about people being harmed.

All it takes... all it takes is one tiny little 5-letter word, and then it's OK to kill people. Lot's of them.

Can you say "enemy?" I know Bart can.
 

What government powers do conservatives wish to enhance beyond the limits of the Constitution?

That's begging the question. What the limits of the Constitution are is precisely the debate.

But to answer your question, conservative attempts to claim that the commander-in-chief power is a broad power to act in contravention of congressional limits rather than a power to act where Congress has not acted or within congressional authorization seems to me to precisely analogous to liberal excesses on the commerce clause.

And construing the Eleventh Amendment, which by its terms says nothing about citizens suing their own state's government, as a bar against those suits strikes me as precisely analogous to liberals finding a right to personal autonomy in the penumbras of the Due Process Clause.

So yes, I think this fight is about results, not about some legal principle conservatives hold dear. Conservatives, just like liberals, tend to like whatever principle gets them to the result they want in the particular case.

But conservatives have lied to their supporters about what the legal debate is actually about, and as a result millions of ignorant right wingers think liberals make up the law and strike down legislation, while conservatives follow the law and uphold legislation. It's completely despicable, one of the great, successful Big Lies in American history.

Give us the conservative counterparts to the invention of rights to abortion and sodomy or arrogation of Article I and II powers to set rules for captures.

By the way, Bart, you are doing it in your own comment. Read the Constitution again. There is a power to "set rule for captures". It is in Article ONE, not Article II, and Congress has it, not the President.
 

mattski:

The Constitution grants the Congress and the President the power to wage war against and kill our nation's enemies.

The Constitution does not grant the judiciary the power to legalize homicide against our own citizenry.
 

Mr. DePalma,


mattski:

The Constitution grants the Congress and the President the power to wage war against and kill our nation's enemies.

The Constitution does not grant the judiciary the power to legalize homicide against our own citizenry.


Please, please, please stop saying this stupid thing. Scalia didn't even think the judiciary didn't have the power to review the law. The Military commissions act was a law passed by the Congress and signed into law by the President. The "judicial Power of the United States shall be vested in one supreme Court," (Art III, Section 1) and "shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States..." (Art III, Section 2). When you say this, people literally have to wonder if you have any idea about how our government works. Argue till you are blue in the face that habeas does not extend to the prisoners, or that habeas was not suspended in contravention of Article I, Section 9, Clause 2, but seriously, please please please stop embarrassing yourself by pretending the law in question was unreviewable because of some "power" held by the political branches that is untouchable by the courts.

The Constitution prohibits the Executive from preventing a person in custody from having a hearing before an impartial arbiter, and limits Congress' power to do so to very limited situations. The judiciary had every right, and the solemn duty to review this case, and ruled correctly in the line of cases to restrain abusive government power. We should all be proud as Americans (and human beings) that the Court prevented the executive (and later Congress) from vitiating the Great Writ.

As far as conservatives grabbing power, how about Bush v Gore, Terry Schiavo (though the Courts properly restrained the political branches), the Oregon assisted suicide law, Altria, and the Exxon Valdez (not to mention all the dissents in the Guantanamo cases). and those are just the recent ones on hot-buttons, without all the technical business-slanted cases.
 

The Constitution does not grant the judiciary the power to legalize homicide against our own citizenry.

# posted by Bart DePalma : 4:28 PM


Imaginary citizens?
 

Dilan said...

BD: What government powers do conservatives wish to enhance beyond the limits of the Constitution?

But to answer your question, conservative attempts to claim that the commander-in-chief power is a broad power to act in contravention of congressional limits rather than a power to act where Congress has not acted or within congressional authorization seems to me to precisely analogous to liberal excesses on the commerce clause.

Let us stick to conservative legal theory and the proposition that the Courts should not be in the business of allowing the President and Congress to exercise powers in excess of what the text of the Constitution allows.

Article II grants the President general CiC powers without textual limitation. Article I grants Congress express powers over enumerated areas of military policy. Given that express grants of power trump general grants, the text of the Constitution grants the President has plenary an unlimited power over military matters except when Congress acts within one of its enumerated powers.

Do not confuse the conservative legal jurisprudence with the policies of some quasi-conservative members of the executive. I know of no conservative jurist who disagrees with the proposition in the prior paragraph and has entered a judgment that has expanded the President's CiC power beyond these textual limits. Cheney, Addington and Yoo are not conservative jurists and some of their opinions are outside of general conservative legal thought.

By the way, Bart, you are doing it in your own comment. Read the Constitution again. There is a power to "set rule for captures". It is in Article ONE, not Article II, and Congress has it, not the President.

By making the President CiC, Article II granted the President all the traditional powers of that position. One of the basic powers of a military commander is to set rules for the treatment of Captures.

By expressly granting a concurrent power to Congress, Article I granted Congress the ability to set rules for Captures that preempt the President's general CiC power.

And construing the Eleventh Amendment, which by its terms says nothing about citizens suing their own state's government, as a bar against those suits strikes me as precisely analogous to liberals finding a right to personal autonomy in the penumbras of the Due Process Clause.

You have a point here. However, this interpretation of the Eleventh Amendment started over a century ago and is not part of the modern conservative legal counter revolution.

My problem with modern conservative legal thought is that it is, well, conservative and gives far too much deference to prior erroneous precedent. Although I drafted the brief as an advocate for the State of Florida that applied the Eleventh Amendment precedent to the age discrimination statutes, as a Supreme Court Justice, I would have reversed the erroneous precedent.

But conservatives have lied to their supporters about what the legal debate is actually about, and as a result millions of ignorant right wingers think liberals make up the law and strike down legislation, while conservatives follow the law and uphold legislation. It's completely despicable, one of the great, successful Big Lies in American history.

Who in the conservative legal movement has made this argument?

Our argument is that the Constitution means what it says, grants the Congress and not the judiciary the power to legislate and limits Congress to expressly enumerated powers that it may not exceed.

Within that framework, liberal courts have been justly criticized for creating new law and allowing Congress to far exceeding its enumerated powers.

Given your failure to offer conservative counterparts to such outlaw cases as Wickard, Roe, Lawrence and Boumediene, then I suggest that the criticism that these outlaw tendencies are limited to liberal courts appears to be well taken.

For the purposes of illustration, a conservative counterpart to Roe would amend the Constitution to read that human life began at conception and that abortion was therefore murder. Instead, the conservative legal position is to reverse Roe and return the power to legislate abortion law back to the states where the Constitution places all powers not expressly granted to the federal government.

There is no conservative counterpart to Roe repeating the error of Roe to achieve conservative policy preferences. Rather, there is a conservative desire to enforce the Constitution and reverse the Roe error.
 

Nerp:

Article I expressly and Article II generally granted the power to set rules for Captures to the Congress and President respectively. Article III did not grant the judiciary a concurrent power.

To the extent that Article I implies that the Constitution incorporated and guaranteed habeas common law in existence when the Constitution was ratified, that common law also declined to grant the judiciary the authority to review the detention of wartime foreign POWs and certainly did not grant the judiciary the power to set rules for the detention of such captures.

Boumediene was an outlaw decision where the judiciary unconstitutionally assumed the powers the Constitution expressly granted to the Congress and the President.

As far as conservatives grabbing power, how about Bush v Gore, Terry Schiavo (though the Courts properly restrained the political branches), the Oregon assisted suicide law, Altria, and the Exxon Valdez (not to mention all the dissents in the Guantanamo cases). and those are just the recent ones on hot-buttons, without all the technical business-slanted cases.

None of these cases involve a conservative court unconstitutionally exercising legislative or executive powers or permitting the Congress or President to exercise powers not granted by Articles I and II. Indeed, the dissents from the Gitmo cases were conservative opposition to Court arrogations of the power to set rules for captures granted to Congress and the President.
 

Mr. DePalma,


Article I expressly and Article II generally granted the power to set rules for Captures to the Congress and President respectively. Article III did not grant the judiciary a concurrent power.


Then what is the power to adjudicate all cases and controversies arising under the laws of the United States, of which the MCA was one? This makes no, and I mean absolutely no, sense. Is Marbury v Madison wrong?
Article I grants the Congress the power to regulate commerce among the States, but Article III does not grant the Court a concurrent power, right? How can conservative jurists strike down laws in excess of the commerce power? This is inexplicable. The Court clearly had the power to review the Constitutionality of the MCA. You can disagree with the analysis of the extent of habeas and whether it should have reached the prisoners, but this is pathetic. (and I love how you can put "Our argument is that the Constitution means what it says, grants the Congress and not the judiciary the power to legislate and limits Congress to expressly enumerated powers that it may not exceed." in the same thread with "To the extent that Article I implies that the Constitution incorporated and guaranteed habeas" - its right in the text! it couldn't be clearer. but you say "to the extent Article I implies..." Article I prohibits, clearly, unabashedly, suspension of the writ. there is no "implies" about it - there is explicit instruction) I mean, if you honestly and seriously think the Court was powerless to review whether the MCA violated the Constitution, I literally think your law school should retroactively fail you in your con law class. No one can honestly read the Constitution in such a manner. No one.


None of these cases involve a conservative court unconstitutionally exercising legislative or executive powers or permitting the Congress or President to exercise powers not granted by Articles I and II. Indeed, the dissents from the Gitmo cases were conservative opposition to Court arrogations of the power to set rules for captures granted to Congress and the President.

Bush v Gore doesn't involve the Court deciding what a State's law in violation of federalism? The assisted suicide law didn't involve conservatives trying to arrogate power to the federal government? Power can be arrogated in more than one direction. How about Hein - allowing the President to violate the First Amendment through discretionary action?

There is nothing conservative about allowing an executive to imprison people with no review indefinitely on the executive's word alone. That's not conservatism - that's authoritarianism.
 

Given that express grants of power trump general grants, the text of the Constitution grants the President has plenary an unlimited power over military matters except when Congress acts within one of its enumerated powers.

Only if you ignore what a "commander" of the armed forces actually is. "Commanders" are bound by the laws that govern the military. The power to make those laws is expressly given to Congress (i.e., the power to make rules governing the armed forces). So no, the Constitution clearly rejects your theory that the Commander-in-Chief power is a power to DISOBEY duly enacted laws.

But in any event, that wasn't really my point. My point was that this is an example of conservatives advocating for an aggrandizement of the power of the government, despite the fact that AT BEST this power would be found in the penumbra of the incredibly vague words "commander in chief". In other words, you can get there, I guess, but only by making the exact same sorts of interpretative moves that you condemn when liberals make them.

I know of no conservative jurist who disagrees with the proposition in the prior paragraph and has entered a judgment that has expanded the President's CiC power beyond these textual limits.

That's a pretty narrow claim. Certainly Thomas didn't get five votes for his position, but his construction of the war powers is both based on structure and penumbras and policy (his belief of what is necessary to win a war), not text, and would be an extreme aggrandizement of federal power.

By making the President CiC, Article II granted the President all the traditional powers of that position. One of the basic powers of a military commander is to set rules for the treatment of Captures. By expressly granting a concurrent power to Congress, Article I granted Congress the ability to set rules for Captures that preempt the President's general CiC power.

That's not really right. But it's too technical a distinction to really get into deeply here. The short of it is that there is no specific rulemaking power granted by the Constitution, but rather, the President makes battlefield decisions within the limits set by Congress. And those battlefield decisions can be codified into regular practices or rules. But that de facto rulemaking power is quite a bit different than the express constitutional power to do it, which is reposed in Congress' hands. (The way this would play out is that the President's actions absent a congressional mandate would get more searching scrutiny from the courts, as Jackson said in his Youngstown concurrence.)

Our argument is that the Constitution means what it says, grants the Congress and not the judiciary the power to legislate and limits Congress to expressly enumerated powers that it may not exceed.

1. That's not really your side's actual argument. For instance, your side DOES NOT believe that the Eleventh Amendment means what it says or that Congress and not the judiciary should determine whether we should have affirmative action or that Congress has no power to, e.g., implicitly preempt state laws even though it isn't expressly stated in the Constitution.

2. Your side does in fact say things other than what you just said. For instance, conservatives will often say that liberals believe in "unelected judges overriding the will of the people". I've heard it a million times. Well conservatives believe in that too, just on different issues.

Or conservatives will say that liberals believe in making up the law. But Bush v. Gore, for one, was a huge high-stakes exercise in making up the law. The Eleventh Amendment sovereign immunity doctrine is created out of whole cloth. Etc.

Given your failure to offer conservative counterparts to such outlaw cases as Wickard, Roe, Lawrence and Boumediene, then I suggest that the criticism that these outlaw tendencies are limited to liberal courts appears to be well taken.

Start with Bush v. Gore, Seminole Tribe, Medtronic. Plus the positions taken in dissents in such cases as Hamdan and Hamdi.

There is no conservative counterpart to Roe repeating the error of Roe to achieve conservative policy preferences.

Sure there is. Seminole Tribe. The Eleventh Amendment is as clear and unambiguous as it gets. The conservatives don't like federal civil rights laws that allow oppressed citizens to sue the states they live in. So they read sovereign immunity into the penumbra of the Eleventh Amendment.

It's all the same. Only the names are changed.
 

nerpzillicus said...

BD: Article I expressly and Article II generally granted the power to set rules for Captures to the Congress and President respectively. Article III did not grant the judiciary a concurrent power.

Then what is the power to adjudicate all cases and controversies arising under the laws of the United States, of which the MCA was one?

Article III grants the judiciary the power to interpret and apply the MCA, not to ignore the MCA and legislate its own rules for Captures.

The Court clearly had the power to review the Constitutionality of the MCA.

Sure it does. However, in doing so, the Court must apply the Constitution as it is written, not as the Boumediene Five think it should have been written. In fact, the MCA in no way, shape or form violated the text of the Constitution nor the habeas corpus common law impliedly incorporated into the Constitution.

BD: None of these cases involve a conservative court unconstitutionally exercising legislative or executive powers or permitting the Congress or President to exercise powers not granted by Articles I and II.

Bush v Gore doesn't involve the Court deciding what a State's law in violation of federalism?

No. The seven member majority did not state what Florida's law should be, but rather held that Florida may not apply different rules for counting ballots under the EPC.

The assisted suicide law didn't involve conservatives trying to arrogate power to the federal government?

Not at all. What are you talking about?

How about Hein - allowing the President to violate the First Amendment through discretionary action?

Hein was decided on standing and did not rule that the President could violate the Establishment Clause.

There is nothing conservative about allowing an executive to imprison people with no review indefinitely on the executive's word alone.

Regardless of whether military detention of prisoners of war can be classified as a conservative or liberal (one would hope that the two ideologies could unite on this most basic of points), the Constitution most definitely empowers the President as CiC to order the detention of prisoners of war on his word alone.

You may have noticed that this has been the practice since the ratification of the Constitution and has been the practice of military commanders throughout Anglo American history and all Western history so far as I can recall. The idea of domestic civilian courts assuming this military power for the first time in history is the radical departure from practice and law.
 

Merry Christmas to all and to all a good night.

God bless.
 

No. The seven member majority did not state what Florida's law should be, but rather held that Florida may not apply different rules for counting ballots under the EPC.

What Bart is doing here is playing a rhetorical game. He is narrowly defining the type of sin that he is interested in, i.e., a certain type of judicial "legislation" that apparently involves rewriting laws, not striking them down, and saying conservatives don't do that.

But, of course, liberals don't do that either. Roe v. Wade, Bart's favorite example, simply says that certain types of abortion laws pass muster and others don't. It doesn't order a state to write its abortion laws any particular way, and indeed, states have different regulatory frameworks on the issue of abortion.

On the other hand, everyone, liberals and conservatives, rewrite a statute occasionally to save its constitutionality. I haven't seen any conservative judges calling for the overturn of the Ashwander v. TVA precedent. But that's done because it is assumed that legislators would rather that the unconstitutional parts of a statute be severed than the entire thing invalidated.

In other words, there is no distinction between what conservatives do when they strike down a law and what liberals do. They try to rewrite the statute to avoid a constitutional question where possible, and where not, they strike it down and draw a line that lets people know what laws are permissible.

Indeed, the closest I can ever remember the court getting to actually dictating the content of legislatioin was probably the Miller and Paris Adult Theater cases, in which the CONSERVATIVES created a three part test for obscenity law OVER BRENNAN'S DISSENT. That three part test has found its way into many states' and the federal government's obscenity statutes. And the conservatives on the Court wrote the statutory language, not the liberals!

Look, part of the problem here in the end is that Bart is actually one of those lemmings I talked about in my comment. Sure, he's a lawyer, but he's no legal scholar (the closest he comes is on issues involving military detentions, which he has clearly studied). He doesn't publish papers. He certainly hasn't published anything on issues of interpretation. I doubt he's read H.L.A. Hart on interpretation, or Karl Llewellyn on canons of statutory construction, or Jack Balkin on the crystalline structure of legal thought for that matter. What he knows about constitutional interpretation is what the conservative movement has told him. If he was aware of the more than a century of scholarship on issues of interpretation, the Realists' criticisms of Langdell, etc., he wouldn't confindently opine about how easy interpretation is and how the liberals don't do it and the conservatives do.

Before you convince Bart, he'd need to read up first.
 

What power grab?

Gosh, I don't know. Sure couldn't refer to anything in the real world, could it? Ya think?

Perhaps Tushnet or Teles aren't entirely on board with the granting of powers to big business. Is big business granted powers in the Constitution? Another hitherto undiscovered right, no doubt.

Do movement conservatives enjoy being whores for big business? Is that the principled stand against accumulation? I must have missed that. Gosh, I do miss so much these days. Most of all I think I miss when the right wing stood for something. Something other than Wal-Mart's right to offshore another industry, that is. Or Blackwater's.

I'm sure it sounds ever so much prettier to spout it in terms of legislative versus judicial. Or ideas 'n such; ideology, doncha know.

What's intensely real these days is the power grab led directly to the power to shoot oneself and everyone surrounding. We gave big business a ticket to do so very much, and what did it do? Accumulated toxic debt. Does seem like if you had wisdom with power, that'd be one thing to skip. It's like giving power to six year olds; all that ice cream, so little time.

I'm sure it sounds ever so much more scholarly to put it in terms of branches 'n' clauses 'n' stuff. So much more high minded. So much better than, oh, looking at the record, the facts, the nakedness of the power grab, and the cretin use of power once gotten.

Was it actually a goal of the power grab, for instance, to level an American city? No, that was just an accident. No legal theory need apply. Sometimes dumb really is as dumb as it looks. Sometimes favoritism, well, likewise. Teles and Tushnet would have a hard time coming up with a corresponding ideology. Idiocy, incompetence, insider crony imbiciles, are not actually ideology. You can look it up, Otto.

We all waited eight years for the principled right wing to point that out and explain that their constitutional principles didn't grant a free pass to morons in power, and guess what, the little boy never spoke up and said the Emperor wasn't wearing any clothes. That's when any person of sense realized the right wing no longer stood for anything. Again, outside of Blackwater's divine right to make money.
 

I want to thank Dilan and nerpzillicus for their thoughtful and learned responses to Bart. As annoying as Bart is, hearing him rebutted by such fine minds is a wonderful holiday gift.
 

This comment has been removed by the author.
 

"Sure, he's a lawyer, but he's no legal scholar (the closest he comes is on issues involving military detentions, which he has clearly studied)."

Dilan,

In reality, that's an area where Bart's ignorance and dishonesty are at their absolute worst. The guy is a shameless liar whose view of military history, customs, and law is mostly delusional to whatever extent it isn't simply fraudulent -- his positions are essentially identical to those of the Nazis and Soviets.
 

Dilan:

In other words, there is no distinction between what conservatives do when they strike down a law and what liberals do.

Repeating an unsupported assertion does not make it correct.

Indeed, the closest I can ever remember the court getting to actually dictating the content of legislatioin was probably the Miller and Paris Adult Theater cases, in which the CONSERVATIVES created a three part test for obscenity law OVER BRENNAN'S DISSENT.

Conservatives? This is the radical Burger Court that invented the right to abortion that same year. There was only one conservative on that Court - Renquist. The Federalist Society and the conservative legal counter revolution was a decade off.

Your contention is that the modern conservative legal counter revolution invents law the same way the liberal courts have. Restrict your proof, if you can find any, to the courts controlled by those who subscribe to the modern conservative legal movement.
 

Conservatives? This is the radical Burger Court that invented the right to abortion that same year. There was only one conservative on that Court - Renquist [sic].

Bart, Rehnquist and Burger voted with each other 88 percent of the time. Burger was very conservative. Powell was also conservative, and while Blackmun moved to the left later on, he was pretty conservative at that time. And White was very conservative on everything other than civil rights.

So you had a working ocnservative majority on the Court. In addition to reinvigorating obscenity doctrine, they cut back on Miranda, expanded the state action doctrine, and moved antitrust law towards a much more pro-business position.

The fact that you don't think they were conservative just shows how little you know about constitutional history. And clearly Miller and Paris Adult Theater were conservative decisions issued over Brennan's dissent, which came much closer to writing laws than anything liberals did.
 

Dilan:

:::chuckle:::

The Burger Court was only "conservative" when compared to complete radicals like Brennan and Marshall. Apart from Renquist, that entire court would either be considered comfortably on the liberal half of today's court or to the left of them.

The fact that there are basic cases on which Burger and Renquist could agree hardly makes Burger a "conservative." Burger voted for Roe and was on record opining that the Second Amendment did not guarantee an individual right. Think Souter.
 

In Bartworld Obama is both a Marxist and a conservative. Words have no meaning for this clown.
 

Why do I do this to myself?

Mr. DePalma,

The Court clearly had the power to review the Constitutionality of the MCA.

Sure it does. However, in doing so, the Court must apply the Constitution as it is written, not as the Boumediene Five think it should have been written. In fact, the MCA in no way, shape or form violated the text of the Constitution nor the habeas corpus common law impliedly incorporated into the Constitution.


We've gotten somewhere. Your own answer, however, shows your bias and hypocrisy. Somehow, by making the Peresident Commander in Chief (which all that it really does, as has been shown to you on numerous occasions, is assure that the military is under civilian control. Congress makes the rules, for both captures and control of the military, the President is obliged to see that such rules and laws are faithfully carried out) you believe the power is clearly there for him to detain anyone incident to war. Yet, you keep on saying this hogwash that the MCA didn't “violate text of the Constitution nor the habeas corpus common law impliedly incorporated into the Constitution.” There is no “impliedly.” For a textualist, the clause “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it” should be clear enough. The Great Writ is explicitly incorporated into the Constitution. So stop the rhetorical devices to try and strengthen your position through denigration. You give no reasoning why Boumediene was wrong. The Court performed an excellent analysis and decided a question with very little historical backing behind it. You, on the other hand, have attempted to move the goal posts, by now claiming the Guantanamo detainees are “prisoners of war” after you argued for years that they were “illegal enemy combatants.” The reason for the rhetorical shift is obvious – most everyone would agree, under normal conditions, POWs do not have habeas rights, since the Geneva Conventions provisions made into law by Congress are sufficient to protect the interests of the captured. But since that's not who we are taking about, your shift is for appearance, not substance.

This is how the Constitution is written. The only question in the case is whether habeas was available to the prisoners. If it is, the MCA is unconstitutional. If it isn't, the MCA does not offend the Constitution. That really is all there is to it. The Framers built the Constitution with the fact that the common law would be in effect, (as we have gone through many, many times previously) and it therefore makes sense that the Courts would interpret the MCA to be in violation of the suspension clause. The President did it to himself, when he always asserted he had power well in excess of what common sense would lead one to believe he should. Boumediene were the perfect examples, since they were not found on a battlefield, not engaging in hostilities against the US in a nation in which were are militarily occupying, and not members of any organization we are at war with. So they aren't POWs, or “enemy combatants,” or whatever. The President simply felt he could do whatever he wanted, and the spineless Congress went along after he realized the Court would not allow him to violate the Constitution by fiat. Luckily, the Court would not allow the Congress to violate the Constitution, either.

Article III grants the judiciary the power to interpret and apply the MCA, not to ignore the MCA and legislate its own rules for Captures.

But they didn't, and no honest person who disagrees with Boumediene can say this. You are again resorting to rhetoric because of the lack of substance in your argument. Boumediene simply held the the MCA unconstitutionally violated the suspension clause, and therefore had to be struck down, and that those prisoners could avail themselves of habeas. There was no statute-writing, there was no legislation. You can argue reasonably that habeas should not have reached these individuals, and therefore the MCA was Constitutional, but the way you state is simply deceptive, derogatory, and ignorant rhetoric. Article III empowers the Court to make sure the Congress does not violate the express limitations on its power, like its inability to suspend habeas except in certain circumstances, which it thankfully did here.


BD: None of these cases involve a conservative court unconstitutionally exercising legislative or executive powers or permitting the Congress or President to exercise powers not granted by Articles I and II.

Bush v Gore doesn't involve the Court deciding what a State's law in violation of federalism?

No. The seven member majority did not state what Florida's law should be, but rather held that Florida may not apply different rules for counting ballots under the EPC.


Mr. DePalma, do you ever try to argue in good faith? Ever? Is it always about looking like you win, rather than engaging in substantive discussion? The EPC portion of the ruling, while pragmatically insane, had basis in the text of the Constitution, and is not the controversial part of the ruling. The hypocritical part, as I have no doubt you know, is the 5-4 remedy section, where the Supreme Court decided it knew Florida law better than the Florida Supreme Court. You know this, and your response is cowardly and pathetic. You should be ashamed of yourself. And this is a message to anyone else reading this: If you ever find any statements by Mr. DePalma compelling, remember this is the manner in which he makes his points. Instead of defending his position, he tries to use rhetoric, blatant red herrings, or simple evasion of the question to avoid ever admitting he is wrong, or even that there may be a debatable gray area. Take anything he says with a ton of salt.

Back to Mr. DePalma – did you seriously think you could get this crap past me? Did you think I would say “snap! He got me!”? Not only are you dishonest, but this isn't even subtle or clever. Do you think I don't know the Bush v Gore decision? Do you think I don't know that you know exactly what I am talking about when I said this decision involved the Supreme Court taking power from states in violation of conservative principles? I assume since you can't respond to this substantively, you are basically conceding that the conservatives chose results over principle on this one.

The assisted suicide law didn't involve conservatives trying to arrogate power to the federal government?

Not at all. What are you talking about?

An incredible response. When conservatives tried to strike down a state law on assisted suicide based on the drug laws (passed under the commerce clause, I might add), it didn't violate any conservative principles of federalism or comity or state powers or majoritarian rule? Really? Not at all? Do you agree with Raich then? Cause this is the opposite side of the same coin.


How about Hein - allowing the President to violate the First Amendment through discretionary action?

Hein was decided on standing and did not rule that the President could violate the Establishment Clause.


BS. If you can't sue, the President could violate the Establishment clause with impunity. And since the claimants could have sued if Congress had been the actor, the Court was splitting hairs. By giving the President relief from suit, the Court gave him power to violate the First Amendment.


There is nothing conservative about allowing an executive to imprison people with no review indefinitely on the executive's word alone.

Regardless of whether military detention of prisoners of war can be classified as a conservative or liberal (one would hope that the two ideologies could unite on this most basic of points), the Constitution most definitely empowers the President as CiC to order the detention of prisoners of war on his word alone.

You may have noticed that this has been the practice since the ratification of the Constitution and has been the practice of military commanders throughout Anglo American history and all Western history so far as I can recall. The idea of domestic civilian courts assuming this military power for the first time in history is the radical departure from practice and law.

Except, as you have argued countless times, these guys aren't “prisoners of war.” I mean, now they are, for you, since that is rhetorically more beneficial to you, but when they asked for Geneva Convention accords, they sure weren't POWs then, right? So they are one thing when you want them to be, and another when they aren't. Just like Bush was a conservative, but now he isn't, or even though Burger an Rhenquist voted together 88% of the time (thanks Dilan), Burger wasn't a conservative, but Rhenquist was. Conservatism can't fail, it can only be failed, right? That basically sums up modern conservative legal theory.

Substantively, the Constitution gives the President the power to faithfully execute the laws made by Congress. The Congress is given no more, and no less, power to make laws than by the limitation placed on it through the Constitution, including the explicit prohibition on the suspension of the writ of habeas corpus. I also think ex parte Merryman and ex parte Milligan may cast some doubt on (okay, completely eviscerates) your bold claim that the civilian courts never have entered into military arrests, and certainly the the President can act alone in declaring who is a POW and how those POWs can be dealt with.

More importantly, i agree that liberals and conservatives should be able to agree that a President, who thinks he can arrest and detain anyone as a prisoner on his say so alone, is a threat to government of the people, for the people and by the people, offends and insults our constitutional republic, and is abhorrent to the principles of this nation. One would also agree that authoritarianism should be repugnant to both liberals and conservatives, and all the other free thinking people of the world, no matter what they call themselves. Unfortunately, there are some people who do not support such principles - however, we luckily have (barely) a Supreme Court that does.
 

Nerp:

1) The Constitution nowhere expressly states that it guarantees a right of habeas corpus review. Rather, discussions of habeas corpus imply that the right is guaranteed. Rights implied by the text are rights just the same.

2) Prisoners of war are simply enemy belligerents (military or civilian) detained for the duration of the conflict. The Geneva Conventions stricter definition of prisoners of war eligible for treaty privileges has nothing to do with this issue. The Swedish and Spanish sailors held as POWs by the British and denied habeas corpus review by the British courts also would not have qualified as privileged POWs under the GCs.

3) I have given extensive analysis as to why Boumediene has no basis in the Constitution or habeas corpus common law. The Boumediene Five could not offer any basis whatsoever in the text of the Constitution or Anglo American common law to justify the first habeas corpus review of foreign POWs in history.

4) Reread the Boumediene Five's opinion as to the extensive set of rights it suggested the district courts should grant the Gitmo detainees. These are rules for Captures over which Article III does not grant any power to the judiciary.
 

baloney .. the "right to abortion" does anything but increase government power bart

This falls under the unconstitutional expansion of judicial power to amend the Constitution. The judiciary is just as much part of the government as is the President and Congress, but far less accountable.

Sorry, Bart, but I disagree. Yes, it does expand the judiciary's power... but it does so at the expense of the legislature, so it's not an example of increasing government power.

That's not to say that I think Roe and its progeny have any firm legal foundation, but I don't think it's accurate to criticize it as increasing "government power."
 

Nerp,

Recall, Mr. DePalma has stated before that, as an attorney, his job is to best represent his client, not to necessarily argue in good faith.

Take this one:

2) Prisoners of war are simply enemy belligerents (military or civilian) detained for the duration of the conflict. The Geneva Conventions stricter definition of prisoners of war eligible for treaty privileges has nothing to do with this issue. The Swedish and Spanish sailors held as POWs by the British and denied habeas corpus review by the British courts also would not have qualified as privileged POWs under the GCs.

Where is his spirited claim that Guantanamo prisoners are not POWs, and are not entitled to GC protections? I have consistently showed him that any capture is covered under GC, but now you have to be a "priveleged" POW. It's all about winning the argument, via good faith, bad faith, or whatever tactic is necessary.
 

Mr. DePalma,

1) The Constitution nowhere expressly states that it guarantees a right of habeas corpus review. Rather, discussions of habeas corpus imply that the right is guaranteed. Rights implied by the text are rights just the same.

The Constitution expressly prohibits the political branches from suspending the privilege of the writ. It guarantees the Courts' power to consider applications cannot be blocked by the executive (or Congress). This is perhaps your basic problem with this whole case – this is not a question of whether someone has the right of habeas, it is a question of whether Congress (and the President previously) exceeded its power by violating an express provision of the Constitution. There are few express rights in the Constitution – most are all negative liberties recognized as limitations on the power of Congress' lawmaking ability (except for certain criminal stuff in the Fifth and Sixth). Habeas is no exception. If Congress passes a law that suspends the writ without a finding of insurrection or the sort, it violates an express limitation on its power, and the law is unconstitutional. Period. The power to review a petition is found solely in the Courts. Read Article I, Section 9, clause 2. I can't believe I have to argue this is an express limitation on Congress' power. Can Congress pass ex post facto laws in your world? All habeas does is force the executive to defend the detention of an individual, and invests the Court with the power to order the release of the individual if the executive's reasoning is found wanting. This is ludicrous. I suggest you read Judge Rodgers dissent in Boumediene, to see the contrast between a limitation on the power of Congress and an individual right.


2) Prisoners of war are simply enemy belligerents (military or civilian) detained for the duration of the conflict. The Geneva Conventions stricter definition of prisoners of war eligible for treaty privileges has nothing to do with this issue. The Swedish and Spanish sailors held as POWs by the British and denied habeas corpus review by the British courts also would not have qualified as privileged POWs under the GCs.

No. You are changing the terms on purpose, because the prisoners, like Boumediene, are claiming they were not engaged in any conflict with the US. Prisoner of war, to use you favorite word appropriately, implies the individual was captured as a member of an enemy army or organization. Boumediene, as you argued on countless occasions, were not prisoners of war, but alleged unlawful enemy combatants. For instance, remember:

Exactly how can you argue both that the rights of due process have value and the extension of those rights does not reward foreign unlawful enemy combatants?

And yes the various due process rights we extend to civilian criminal defendants do reward criminals, a not unsubstantial number of whom escape justice because of these rights. Our society accepts this drawback in the name of fairness to our People.

However, we have not extended civilian due process or the lesser POW rights to unlawful enemy combatants during wartime.

In war, you can kill the enemy at will on the battlefield. The law of war suspended that general rule for captures which follow the laws of war in order to encourage the protection of captures and civilians. Extending POW privileges to those who barbarically violate the laws of war removes the encouragement to follow the laws of war.

Your arguments are grotesque - the ideology projecting them actually noxious. I fail to see how anyone raised on the principles of modern civilization, of life, liberty and the pursuit of happiness, of inalienable human rights can avoid being morally repulsed. Sometimes that need be explicitly said.

To summarize, the US should extend the rights of POWs and civilian criminal defendants to terrorists because you think we should.

This is an opinion, not an argument. I will presume that you cannot defend this opinion.
# posted by Blogger Bart DePalma : 1:49 PM

Saturday, March 17, 2007, John Yoo Appears to Confirm CIA Waterboarding,
http://balkin.blogspot.com/2007/03/john-yoo-appears-to-confirm-cia.html

The distinction sure seemed important back then. Why would you not use the same terms now?

As far as the Spanish Sailors case, the petitioners there admitted they were prisoners of war, and were asking for wages. They didn't deny they were prisoners of war. Their affidavit did not create a dispute as to their status. This is not the same here. It would be the same if a Guantanamo prisoner put forth an affidavit that said “I was fighting the Americans in Afghanistan, but I don't want to be held as a prisoner.” The petition could be denied without hearing, because the facts of the affidavit, and almost certainly of the return, would agree that prisoner was engaged in military conflict with the US on a battlefield. Same with Schiever, which I assume is the other case you reference. More importantly, the Schiever stated: “But the Court thought this man, upon his own shewing, clearly a prisoner of war, and lawfully detained as such.” There was a showing, which means review, which means process. There was a holding that he was lawfully held as a prisoner of war. I don't know whether the Seedish guy should have been classified as a prisoner of war, but the court determined he was. That is vastly different from what the government put forth in Boumediene, claiming that if the President says so, that's it, and that the MCA prevented the courts from reviewing habeas petitions from alleged unlawful enemy combatants. Whether the substantive finding was correct or not, the court reviewed the application and the allegations. The courts never have held they don't have jurisdiction to hear case in which the person's affidavit makes a factual showing that he is not a prisoner of war. You are wrong that review was denied – only the writ was denied.

3) I have given extensive analysis as to why Boumediene has no basis in the Constitution or habeas corpus common law. The Boumediene Five could not offer any basis whatsoever in the text of the Constitution or Anglo American common law to justify the first habeas corpus review of foreign POWs in history.

You only do this because you assume they are prisoners of war (after dispensing with your original term). But Boumediene was clearly not. His factual affidavit showed this. The government couldn't even provide any evidence whatsoever to hold five of the six of them. And you are wrong. While no court has granted a writ to a prisoner of war, there have been reviews of the allegations. Especially in the two cases you cite, where the courts holds the affidavits showed the individual to be a prisoner of war. This is a factual inquiry, not just a “do what the executive says” inquiry. The facts were insufficient for the old English cases. But the petitions were considered. The administration should have every right to file a return and demonstrate these guys are unlawful enemy combatants. Of course, as we have seen with Boumediene, that won't happen in at least some of these cases.

4) Reread the Boumediene Five's opinion as to the extensive set of rights it suggested the district courts should grant the Gitmo detainees. These are rules for Captures over which Article III does not grant any power to the judiciary.

No. The rights detailed are the rights required for sufficient habeas review. It has nothing to do with the rules for captures. If the habeas review results in a finding that a particular individual is an enemy combatant or whatever, then the rules for captures kicks in. The rights outlined are for those who claim not to be enemies, and are required in order to make a showing of that. Congress has every right to make rules for captures that do not violate the Constitution. It cannot pass laws that suspend habeas wrongly. The Court has the power to administer habeas proceedings, which are not the same as rules of capture. This is what I have repeatedly told you is an absolutely ridiculous argument. Once habeas is extended to the Guantanamo prisoners, the rights given to them are not “legislation” or usurp the law making power of Congress, but are instead the process for the habeas review.

One logically cannot say “Okay these guys are entitled to habeas, now lets follow the unconstitutional procedure in the MCA.” If you assume Congress unconstitutionally suspended the writ, then the Courts will determine the process for habeas review. The rights granted to the prisoners in habeas flow from the finding that the MCA unconstitutionally suspended the writ. They aren't rules for captures, they are rules for the habeas proceedings. The courts, under the common law, will of course create the procedure to follow.

Your claims come from this fundamental misunderstanding. The Court is engaged in habeas review, not “Rules for Captures.” Once the habeas review is finished, either the prisoner will be ordered released because of the unlawful detainment, or the prisoner will continue to be detained pursuant to Congress' rules for captures. You are simply trying to put a case you don't like in a bad light by claiming it is some kind of activist court legislation. I don't even think the conservatives on the Court would agree with your assertion. They disagree with the majority on the fundamental question on whether the Congress suspended the writ, but if they agreed constitutional habeas was available, I don't think there would be any question that the courts make the rules for the review.

So, tone down your rhetoric, and argue that habeas should not extend to those whom the President claims are unlawful enemy combatants, even where the prisoner completely denies it. That is at least a stance that has some kind of legitimate basis. This “legislation” and “rules of capture” garbage can only lead a reader to believe you have no idea of what you are talking about.
 

The fact that there are basic cases on which Burger and Renquist could agree hardly makes Burger a "conservative." Burger voted for Roe and was on record opining that the Second Amendment did not guarantee an individual right. Think Souter.

Bart, Souter votes in a bloc with the 3 other liberals in numerous 5-4 decisions every year. In contrast, Burger voted far, far, far more often with the conservatives. Indeed, while he was part of the 7-2 majority in Roe, he also wrote a concurrence saying the right should be read narrowly and later authored a concurrence indicating that Roe might be overturned.

He did hold the collective rights view of the Second Amendment, a view that he shares with many conservatives such as Harvie Wilkinson. It was the dominant view at that time.

But that's 2 narrow areas of the law where he sometimes joined with liberals. But if you look at him on affirmative action, criminal procedure, capital punishment, antitrust and business regulations, obscenity and other free speech claims, etc., the guy was a staunch conservative.

You really do not know what the heck you are talking about. Burger was almost as conservative as the two Chief Justices who followed him. If he were on the Court now, he would be voting with Roberts and Alito in the vast, vast majority of cases.
 

Nerp:

You are simply misrepresenting my positions now. I am not going to waste time correcting you. My posts speak for themselves.

I would conclude by observing that prisoners of war do not gain rights under the Constitution or the Geneva Conventions simply because they deny they are enemies. Under the GCs, a signatory military simply needs to hold a hearing to determine the category under which the prisoner falls.
 

You are simply misrepresenting my positions now.

Baghdad, you misspelled "destroying".
 

Dilan:

Like Souter, Burger was nominated as a supposed conservative and then evolved into a liberal on most subjects apart from criminal law.

Burger drafted the awful opinion in Swann v. Charlotte-Mecklenburg Board of Education affirming court ordered social engineering in the form of forced busing. Indeed, the man was so weak that Brennan and other leftists bullied him into a far worse opinion than he intended to write.

Burger drafted a concurrence in Roe that approved of the fabrication of a right to abortion while foolishly assuring us that abortionists could be trusted as doctors not to abuse this new power. Abortions soared to over 1 million per year soon afterward.

Burger commented famously on PBS:

JUSTICE BURGER: If I were writing the Bill of Rights now there wouldn’t be any such thing as the Second Amendment.

MS. HUNTER-GAULT: Which says.

JUSTICE BURGER: That says a well regulated militia being necessary for the defense of the state, people’s rights to bear arms. This has been the subject of one of the greatest pieces of fraud, I repeat the word “fraud,” on the American public by special interest groups that I have ever seen in my lifetime. Now just look at those words. There are only three lines to that amendment. A well regulated militia — if the militia, which was going to be the state army, was going to be well regulated, why shouldn’t 16 and 17 and 18 or any other age persons be regulated in the use of arms the way an automobile is regulated? It’s got to be registered, that you can’t just deal with it at will. Someone asked me recently if I was for or against a bill that was pending in Congress calling for five days’ waiting period. And I said, yes, I’m very much against it, it should be thirty days’ waiting period so they find out why this person needs a handgun or a machine gun.

These are the words and rulings of a justice who believed fully that courts could rewrite the Constitution at will to add "rights" which were never written and discard express rights of the people because he disagreed with them.

Burger is the antithesis of the modern conservative legal counter revolution against just this sort of judicial mischief making.
 

Mr. DePalma,

While I have no interest in wasting your time, the charge of misrepresentation is fairly serious. For instance, when you misrepresented my point on the stimulative effect of infrastructure construction projects (you said i made a "good point" about them not stimulating anything; i of course made no such claim), I responded with a substantive reply, clearly laying out how you misrepresented me. I didn't really need to correct such an obvious malreading of my post, but I felt it appropriate to clear up the record, and to address what i feel was your misuse of my statements.

in this matter, i would appreciate the same, one so i don't make the same mistake again, and two to see what load you pull out to pretend i misrepresented your points, which I helpfully reproduced in full prior to my responses. to recap:
1. you thing the writ of habeas corpus is impliedly incorporated into the Constitution; i contend the plain text of art I sec 9 cl 2 is fairly explicit. either that, or you think it is some kind of individual right as opposed to an express limitation on the power of congress
2. youare now using the term prisoner of war to mean everybody you once called unlawful enemy combatants; i argue this is a rhetorical device in contrast to your previously claimed term, that i recall arguing with you about at length. i still don't understand the use of term by you for Guantanamo prisoners you used to "correct" people on in the past. nevertheless this is less substantive than it is shady.

3. you contend you have analyzed the lack of support for the Boumediene majorities ruling; i contend you have misread the old cases as to whether there was review or not.

4. you contend the rights the Boumediene Court suggested as a starting point constitute the Court making "rules for captures"; i note these are simply the procedural requirements for habeas review, and that your claim of judicial legislation is malarkey.

now, i know i didn't misrepresent your viewpoints, because they are the same tired troupes we have debunked for years. however, i would like to hear your argument on how i misrepresented you.

I would like to close by saying this is not the first time you have implemented an "I'm taking my ball /d going home" approach to avoiding acknowledgement of your mistakes. i have lost count of the thrashings you have recieved only to pull out the "the thread is yours" or "i won't waste my time correcting you" or "my posts (or 'cites') stand for themselves" or other such dribble. look, i understand the temptation - no one likes to be wrong, and everyone likes less to have to admit it. But please don't delude yourself into thinking this somehow makes it look like you were correct or maligned in some way. your theory here is demonstrably wrong, and i have disproved it. when you have a debatable point, i acknowledge it. you, for some reason are simply incapabale of accepting that you may be wrong. not everyone is an unthinking ideologue - i have in the past noted you have been right about some things, like how bad kelo was, or how the heller case (while having bad reasoning) was the correct ruling on a constitutional limitation. but you don't seemt to have the same ability - if it doesn't advance your agenda, you avoid it, or foolishly argue outrageous theories to prop up the indefensible. i have a hard time understanding this mindset. so maybe that's why i constantly try to enage you, even though it is evidently futile. i would like to know, seriously, whatsatisfaction you get out of commenting here? do you know what you say is wrong, or do you really think your claims have a basis in reality? just curious.
 

i would like to know, seriously, whatsatisfaction you get out of commenting here?

It's a toxic recipe that goes something like this:

-one teaspoon "Heh, I'll show those dems, libs & leftists"
-one tablespoon "gee, those f*ckers are pretty smart but they don't know how to fight dirty like me"
-five cups "if I can't beat 'em I can always irritate the shit out of them"
 

Here's a thought. Let's all agree to ignore Bart. Let him say whatever he wants to say in comments. Let him twist words, chop logic, distort arguments, spin sophistries, until his heart bursts from the joy of it. And say nothing. Believing that you're "correcting the record" or "putting matters straight" after his comments is believing in nonsense. I have no stake in most of these arguments. I have an open mind. I'm fairly centrist in my views, with one or two exceptions that I cheerfully acknowledge. I have a healthy tendency to be a smart-ass. I like to laugh. I like Latin American Boom literature. I can apply the basic principles of formal logic to discern the validity of an argument. I know equivocation when I see it. In short, from the perspective of someone who just likes to read interesting things, and isn't passionately committed to one side or the other, what Bart is doing is obvious. So just ignore him. Contribute your own comments, certainly. The more thoughtful ones are well worth reading. (See generally Dilan, Mourad, etc.) The constant Bart-related bickering, however, is not. It's just not. For the love of God, ignore the man.
 

Works for me. People who repeatedly get the facts, the law, the context, the history, and the point wrong, often dead wrong, and then, when called on it, pretend that didn't happen, add nothing to the discourse. It would be smart to ignore them. The discourse would benefit.
 

" Here's a thought. Let's all agree to ignore Bart."

This sounds a tad conspiratorial. I reserve my liberty interest to ignore, bait, ridicule, etc, purely on an individual basis, without even a suggestion of conscious parallelism. Keep in mind the punchline to the old joke about dogs chasing cars: But they never catch them.
 

I value the friend who for me finds time on his calendar, but I cherish the friend who for me does not consult his calendar.
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