Wednesday, December 19, 2012

"If your Constitution is so good, how come you're sending drones against us?"

Mark Tushnet

That's a question asked of me at a session with trainees for the Pakistani civil service at their academy in Lahore, where I was over the past few days. The politics of the comment are of course interesting -- that the trainee felt licensed to ask the question, that I have no idea to what extent he [the trainees were about 4/1 male/female] was representative. For now, though, I'm interested in the perspective on the US Constitution reflected in the comment: that, because the Constitution is a template for justice, anything that's unjust must be inconsistent with the Constitution. Part of my response was that, though the drone strikes might be morally problematic (I should note that I'm quite "conservative" on this question, thinking that at the very least as between bombs and drones, drones are pretty clearly morally superior), the law dealing with the moral issues might be international law or international human rights law or the law of armed conflict, but not US constitutional law. I think there's a reasonably obvious connection between this point and the one Sandy Levinson's been urging -- that maybe we shouldn't be excoriating the Supreme Court's Heller decision, but the Second Amendment for removing important policy issues from ordinary political resolution. (Another post on conversations in Pakistan to follow.)