A Washington Post story on the ever-worsening situation in the country that used to be Iraq focuses on the seeming unwillingness of Prime Minister Maliki to leave office, as is seemingly desired by almost everyone in the country (and world) other than his specific supporters. It includes the following paragraph
The prime minister’s political bloc won the largest share of seats in April’s parliamentary elections, but not a majority. In his speech, he charged that Iraq’s president, Fouad Massoum, had violated the constitution by not asking Maliki’s political bloc to put forward its candidate before a deadline last week.
“This act represented a coup against the constitution and the constitutional process,” Maliki said. Violation of the constitution could have serious and dangerous consequences, he said, taking the political process into a “dark tunnel.”
What especially interests me is whether anyone really cares (or should care) about the degree to which the Iraqi constitution is being followed at the present time. I certainly have no expertise on that constitution, and I have no real idea whether Maliki's claim is correct or not; even more do I have no idea who exactly would adjudicate his claim. I assume that the United States Supreme Court would treat this as a "political question' and dodge it were there an American analogue. But, as I say, that's not really the primary question. Let's assume for the moment that Maliki's understanding is totally correct and would be found to be so by any legal interpreter. So what? Aren't there more important considerations at play right now than whether the Iraqi constitution is followed? And if we are cavalier about the degree of fidelity that ought to be directed at the Iraqi constitution, does that have any implications for our views about constitutional fidelity in the good old U. S. of A.? How do we decide which constitutions are worth obeying, even when it is clearly costly to do so, and which are not, and under what circumstances (and who decides)?
I think the Iraqis should care (or at least pretend they care). Because the alternative is to care only about how many troops will follow Maliki's orders to fire on his political opponents.
ReplyDelete"It's on the negative side because there's a rule-of-law cost associated with constitutional violations (that are conceded to be such)."
ReplyDeleteResponding to Mark, are you asserting there's no rule of law cost to constitutional violations if you refuse to admit they are violations? No, I think those can be worse, because you end up putting in place norms and mechanisms so that the constitution you're violating ceases to matter. You stop obeying your constitution, and just 'obey' it, which is to say, violate it while claiming you're following it.
We're familiar here in the US with that technique. It's why the interstate commerce clause lets the federal government regulate what I grow in my garden, and both Houses of Congress routinely conduct business without a quorum.
No, I think it's probably worse.
"So what? Aren't there more important considerations at play right now than whether the Iraqi constitution is followed?"
ReplyDeleteIn fact, aren't there ALWAYS more important considerations at play right now, than whether the law is followed? But if you make that your creed, if you come out and say, "I don't care about following the law, if at this moment following it is disadvantageous to me.", why will your foes bother following it when it's advantageous to you, and not to them?
You break the rules of the game to score, you break the game. And it's back to the war of all against all. Your point of view is the death of the rule of law, and the rule of law is the only alternative to the rule of brute force.
So, don't complain when the coup (Or counter-coup) happens, and the elections are canceled. It's what you wanted, isn't it? For the law not to get in the way?
You break the rules of the game to score, you break the game. And it's back to the war of all against all.
ReplyDeleteThat is a gross overstatement. Yes, obeying the law has value in itself, but an occasional violation for a compelling reason does not return us to Hobbes' state of nature. To believe otherwise is to support Inspector Javert against Jean Valjean.
Exactly what is Brett growing in his garden that he fears the central government may regulate? (I assume his garden in not in CO and that it is more than a window box of herbs.) Whatever it is, maybe there's a cure in the making for Brett's chronic case of Wickburn.
ReplyDeleteBrett may not be aware of the role of the US of A in formulating Iraq's constitution that lacks a provision comparable to our 2nd A (despite - or because of? - Iraq's recent and past history of shooting at whim their guns at the sky). Perhaps Brett, as a 2nd A absolutist AND a self-proclaimed anarcho-libertarian, may believe that if indeed Iraq's constitution had a 2nd A provision, all of what's going on in Iraq would be in compliance with its constitution.
As a side not to "Who cares about the constitution?" while it pertains to Irag's and not ours, some comments seem to be no-so-subtle-but-implicit comparatives.
ReplyDeleteMy next read is David A. Hyman's "Constitutional Prognostication: Does Anybody Knows [sic?] Anything?" that got Larry Solum's "Recommended" at his Legal Theory Blog, with a link of course. Is this comment "off topic?" There seems to be lot of prognosticating as well as procrastinating, with perhaps more to come. Time will tell.
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ReplyDeleteThe word "obey" and "I disagree with the current interpretation" isn't quite the same thing.
ReplyDeletePutting aside Henry's sensible comment, the example appears more five year presidential terms than determining that regulation of the environment (including what is in your garden), e.g., having continual interstate effects of a commercial nature (see, e.g., Prof. Balkin's article on "Commerce," if history and text is your bag) warrants some federal involvement.
I think ultimately it tends to be a matter of degree* though important precedents early in the history of a Constitution (e.g., the peaceful turnover from Adams to Jefferson) show it is quite important in the long term stability of constitutional government.
Which, being better than the alternative, makes caring about the document worthwhile simply in a prudential sense. Surely, we should follow the same principles, though hypocrisy and self-interest is obviously there.
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* The commerce example is a prime case of disagreement of interpretation. The true hard case is rather rare either because the alternative is easier than one thinks or there is some play in the joints. The quorum case, putting aside some lack of clarity on details, is a case of rules that realistically are not going to be followed 100% of the time. This leads to Henry's sense of perspective, especially when the document provides a way to check it.
Mr. Obama's first fumbling attempt to play the Great Game in Iraq has very little to do with domestic constitutional law.
ReplyDeleteSince when do great powers recognize the laws of small countries?
Our CO gasbag's:
ReplyDelete"Since when do great powers recognize the laws of small countries?"
might be answered by the recognition of sovereignty, at least selectively, although in practice that may result in supporting non-democratic small nations for various and sometimes dubious reasons.
Shag:
ReplyDeleteGreat nations only "recognize" the internal laws of a small country when it advances their national interests.
Forget how you think international relations should operate, this is the reality.
I didn't use the word "reality," but that was the contextual "reality" of my comment on our CO gasbag's comment. So we are basically in agreement with his follow up comment. But keep in mind Reagan's Iran/Contra brouhaha - what was the "national interest"?.
ReplyDelete"The word "obey" and "I disagree with the current interpretation" isn't quite the same thing."
ReplyDeleteTrue, but in the current intellectual climate, it is very seldom that anyone actually admits to violating the Constitution. They simply claim to be obeying their own interpretation of it. But at some point we have to be willing to say, "That interpretation is arrant nonsense.", or we don't have a language anymore.
I don't know if Brett is aware that former Congressman Tom-Tom Tancredo (who I thought might be our CO gasbag's mentor) recently stated, in effect, that if Pres. Obama is not impeached for his alleged violations of the Constitution, that people should stock up on guns and ammo and join a militia, presumably under the guise of 2nd A absolutism. Is Tom-Tom beating the drums for anarchy? Would that be in conformity with the Constitution? Does Tom-Tom seriously care about our Constitution?
ReplyDeleteBrett: True, but in the current intellectual climate, it is very seldom that anyone actually admits to violating the Constitution. They simply claim to be obeying their own interpretation of it. But at some point we have to be willing to say, "That interpretation is arrant nonsense.", or we don't have a language anymore.
ReplyDeleteThe current intellectual climate of ignoring the original and often plain modern meaning of the law as written and rubber stamping progressive law has been ongoing since the late 1930s. What is changing is the scope of the constitutional violations progressive courts rubber stamp.
When progressives originally created the regulatory bureaucracy in violation of Article I, executive legislation in the form of regulations were supposed to remain within the general parameters set by an enabling law of Congress. Now we have a president and a bureaucracy openly waiving express provisions of laws of Congress and decreeing their own law.
Dictatorship by any other name.
Of course, you are a lunatic if you suggest impeaching the dictator.
Of course, you are a lunatic if you suggest impeaching the dictator.
ReplyDelete# posted by Blogger Bart DePalma : 2:07 PM
Actually, you're a lunatic because you're constantly posting idiotic nonsense and yet still expect to be taken seriously.
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ReplyDeleteTrue, but in the current intellectual climate, it is very seldom that anyone actually admits to violating the Constitution.
ReplyDeleteWhen was it popular to so admit? Again, I'm unsure of Bret's golden age, since he uses language that appears to cite time old things as if they started recently.
They simply claim to be obeying their own interpretation of it.
From the beginning, there were major disputes over constitutional terms and one side strongly thought the other side violated it. Jefferson, e.g., thought it obvious Hamilton was violating it. Time gave Hamilton staying power in various cases.
But at some point we have to be willing to say, "That interpretation is arrant nonsense.", or we don't have a language anymore.
GM, the blogger here, noted as such in his latest book. He also noted however there was a broad degree of reasonable debate.
So, sure, that is true as a bland statement. I don't think the feds regulating gardens unreasonable, e.g., because of products sold in interstate commerce or environmental regulations involving national commercial matters.
That's the problem, alright: You don't think it's unreasonable to regulate what goes on in your backyard, on the basis of a clause authorizing regulation of interstate commerce. Even though your backyard garden is neither.
ReplyDeleteYou don't think it's unreasonable to interpret the interstate commerce as though it stopped with "To regulate". You don't think it's unreasonable to ignore most of the clause.
I completed my reading of David A. Hyman's article "Constitutional Prognostication: Does Anybody Knows [sic?] Anything?" The article (and an earlier one by him) addresses PPACA. Those who follow this Blog should find it interesting. Hyman is not a con law professor. His specialty is medical malpractice. He faults much of the con law academics, including as political. But he fails to address that the Court can be political as well. Be that as it may, he makes a point on con profs' predictions on cases at the trial, appellate and Supreme Court levels. Back in the archives of this Blog, a 1/29/11 post by Sandy "Et tu, Garrett,"I mde this (as well as many other) comments on a long thread:
ReplyDelete***
Today's NYT editorial "Politics and the Court" that focuses upon recent Justices Scalia and Thomas doings includes this:
"Constitutional law is political. It results from choices about concerns of government that political philosophers ponder, like liberty and property. When the court deals with major issues of social policy, the law it shapes is the most inescapably political."
It's a shame we don't have a Finley Peter Dunne and his Mr. Dooley around to constantly remind us of this but with wit and charm. What might Mr. Dooley have said about the back and forths on the constitutionality of the Affordable Care Act, aka Obamacare? And what might Mr. Dooley have said about the "Tea Totaling Party"?
Back in the fall of 1952, I asked my ConLaw Prof. Thomas Reed Powell how he thought the Supreme Court might rule on a particular issue (it had to do with baseball) working its way through the courts. He responded: "I don't know. I stopped years ago trying to figure out what those bozos will do." And he knew well personally and professionally several of those then serving.
Wikipedia has a nice feature on Dunne that includes some of his and Mr. Dooley's memorable quotes to help put the present in perspective.
# posted by Blogger Shag from Brookline : 4:42 AM
***
Hyman's article is only 13 pages short. I plan to download his earlier article.
Constitutional law is political.
ReplyDeleteMostly because the Founders underestimated the power of the judiciary and placed no checks on the third branch.
Consider this proposed amendment:
Section 1. The judicial power shall include interpretation of the law, treaties and this Constitution, but such interpretation shall be limited to the original meaning of the language of the law as it was commonly understood at the time of its enactment. To the extent that the original meaning of a provision of this Constitution is uncertain, the judiciary shall construe the language against the reviewed government exercise of power. This section shall have retroactive effect and all prior judicial decisions exceeding the foregoing limits have no precedential value.
Section 2. Congress shall have the power to review and revise a judicial interpretation of this Constitution by the Supreme Court within five years after entry of the order of the Court. A bill revising a judicial interpretation shall originate in the House of Representatives and must be approved by a three-fifths vote of both the House of Representatives and the Senate. A bill of revision is not presented to the President of the United States and the President may not disapprove it. A bill of revision so approved is final and may only be changed by an amendment to the Constitution.
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ReplyDeleteThat's the problem, alright: You don't think it's unreasonable to regulate what goes on in your backyard, on the basis of a clause authorizing regulation of interstate commerce. Even though your backyard garden is neither.
ReplyDeleteI note that you failed to actually refute my examples.
To repeat them: "because of products sold in interstate commerce" and "environmental regulations involving national commercial matters."
Pollution, e.g., doesn't stay intrastate in various cases. If your garden poisons the air and water [or a serious threat is there] which flows interstate and continuously is a matter of interstate commerce in a variety of ways, yes, it is okay pursuant to interstate commerce (with an assist of the Necessary and Proper Clause) for feds to regulate.
You don't think it's unreasonable to interpret the interstate commerce as though it stopped with "To regulate". You don't think it's unreasonable to ignore most of the clause.
No, I gave specific examples tied to interstate commerce. I realize you disagree with me on what it means (I don't even think Thomas would go along with you all the way) but that's another matter. The policy benefits also is another matter.
You concern for text again is somewhat ironic.
There was nothing to refute.
ReplyDelete“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
Is my backyard garden commerce with foreign nations? Is my backyard garden commerce among the several states? Is it commerce with the Indian tribes?
No, it is none of these things. And the clause does not say, “To regulate anything which might effect Commerce with foreign Nations, and among the several States, and with the Indian Tribes”. The clause, on it's own terms, aims to leave much, perhaps most commerce, and all things which are NOT commerce, beyond its reach.
It is only commerce itself, and a subset of that, which the clause authorizes regulation of. And yet, you'd interpret it so as to render everything beyond "to regulate" without effect.
This is the sort of sophistry which has created a leviathan under a constitution designed to limit government. It may in the end prevail, the people who like that sort of thing have a lot of guns and allies.
But I don't have to pretend to respect sophistry, or those who engage in it.
In response to the NYTimes' 2011 quote "Constitutional law is political.", our CO gasbag says this is:
ReplyDelete"Mostly because the Founders underestimated the power of the judiciary and placed no checks on the third branch."
Reread Article III with care. It is quite short. It makes no specific reference to "judicial review." Nor does Article III or any other part of the Constitution confer judicial supremacy in horizontal fashion over the Congress and the Executive. Some of this resulted from a power grab by the Court early on, most notably with Marbury v. Madison. I've been intrigued by the several article on Marbury's 200th Anniversary in Constitutional Commentary, including Jack Balkin and Sandy Levinson's article on the detailed facts in the case not disclosed in the opinion. CJ Marshall could have easily tossed out the case on the basis that under the Constitution the Court lacked jurisdiction. But for obviously political reasons, Marshall had to go through steps to show that Marbury's appointment by Adams was complete even though Adams' Secretary pf State (who happened to be Marshall) failed to deliver the commission to Marbury. (Quel conflict d'interest, Monsieur Chief Justice, a fact not revealed in his unanimous opinion for the Court.)
This brings to mind Adam Lliptak's NYTimes column today "On Supreme Court, Does 9-0 Add Up to More Than 5-4?" Perhaps had there been a dissent in Marbury, more facts would have been disclosed including that Marshall should have recused himself.
Is it too late for the elected branches to un-usurp the powers claimed by the Court early on that have continued? Let's hear from Mark Tushnet on judicial review, what is it good for?
In any event, our CO gasbag's proposed amendment is hokey, although it might provide full employment for historians (legal and conventional), linguists to provide expert testimony on cases no longer having precedential value. And Section 2 giving Congress the power to in effect revise an opinion of the Court may have problems unconnected with the provisions of Section1.
Brett's:
ReplyDelete" And the clause does not say, 'To regulate anything which might effect Commerce with foreign Nations, and among the several States, and with the Indian Tribes'. The clause, on it's own terms, aims to leave much, perhaps most commerce, and all things which are NOT commerce, beyond its reach."
is a reminder that the 2nd A does not specify an individual right even ignoring the prefatory clause, nor self-defense.
Sophistry indeed.
But seriously, Brett, what do you grow in your garden that the central government might want to regulate? Plums converted into prunes?
Heirloom tomatoes and bitter melon, mostly. You ever try bitter melon? One of my favorite veggies.
ReplyDeleteI've never had a garden or even a window box. As a pre-teen I would get a bunch of corn silk and dry it out in a sunny area of our apartment. My mother asked what it was for. I said it was for a school project. After suitably dried, I cut it up and with a small roller and paper made cigarettes. They were quite mild but there wasn't even a kernal of a kick. So I abandoned that. Now in season I thrive on sweet corn harmonica style.
ReplyDeleteHeirloom tomatoes are delicious, especially when ripened on the vine. My local farmers' market provides a wide assortment. But heirloom tomatoes are not a commodity like wheat (Wickburn) or ganja (Raich) that even indirectly may impact interstate markets. (Note that Justice Scalia, a textualist/originalist, would not accommodate new originalist Randy Barnett in Raich.)
I haven't tried bitter melon, preferring watermelon. My father used to tell of his family's farm in the old country and the large crop of watermelon that would ripen at about the same time. There was so much watermelon that he would eat only the sweet center portion, feeding the rest to cattle. I'm so penurious that I use a curved knife to get as close to the rind as possible. So during the season, at my age, there is a nocturnal impact of eating too much watermelon. Next time I'm at mr farmers' market, I'll look for a bitter melon. But then I'll Google to see if it might turn me into an anarcho-libertine, or something like that.
But I just might focus on beefsteak and heirloom tomatoes to make liberally spicy gazpacho - perhaps with some dice watermelon added.
But seriously Brett, every garden has some weed, doesn't it?
"But heirloom tomatoes are not a commodity like wheat (Wickburn) or ganja (Raich) that even indirectly may impact interstate markets."
ReplyDeleteNow, now, Shag, I'm certain you know better. Under current commerce clause, (Note that they've dropped the 'interstate'.) doctrine, that's not so. My tomatoes can be regulated under the interstate commerce clause on several basis. Because I grow my own tomatoes, I don't buy them at the grocery store, and, in aggregate, the practice of home gardening could effect interstate commerce. Further, my gardening tools might have been articles of interstate commerce.
Like the creek next to my house, 6" deep in a heavy downpour, and dry in a drought, is federally regulated as "navigable waters", the courts do not care if my tomatoes were bought or sold across the relevant boundaries.
Because the courts do not care if the Constitution is actually being complied with. They only care if they can invent some sophistry to pretend that it is, while doing the job they were hired for: Enabling the leviathan.
Oh, and Shag? Try making some watermelon pickles.
I do pickle cukes and certain other veggies. I have enjoyed pickled watermelon rind, but it is labor intensive getting the green off. Also, alas, the white portion of the rind seems to be getting smaller and smaller, perhaps because of seedless development over the years. This observation brings to mind your concern with the changing demographics.
ReplyDeleteBlame Pres. Nixon for your being up the creek problem. Then again even a self-proclaimed anarcho-libertarian appreciates clean water, I suppose.
And maybe that bitter melon may lead to a cure for your chronic Wickburn.
There was nothing to refute.
ReplyDeleteI gave you specific examples. Your failure to actually refute them is telling.
No, it is none of these things. And the clause does not say, “To regulate anything which might effect Commerce with foreign Nations, and among the several States, and with the Indian Tribes”. The clause, on it's own terms, aims to leave much, perhaps most commerce, and all things which are NOT commerce, beyond its reach.
Since you didn't actually respond to it for some reason, I still fail to understand how "products sold in interstate commerce" and "environmental regulations involving national commercial matters" cannot involve interstate commerce merely because your home garden was involved. CJ Marshall in the 1820s explained how intrastate affairs can have interstate reach in this fashion and it applies here. If your garden contributes to the pollution of the air, an ongoing channel of interstate commerce, e.g., it might be helpful to refute why Congress cannot regulate the garden in the process of regulating the channel.
It is only commerce itself, and a subset of that, which the clause authorizes regulation of. And yet, you'd interpret it so as to render everything beyond "to regulate" without effect.
No, I provided an example regarding INTERSTATE COMMERCE, not anything regulation under the sun. Your disregard for text remains ironic.
This is the sort of sophistry which has created a leviathan under a constitution designed to limit government. It may in the end prevail, the people who like that sort of thing have a lot of guns and allies.
But I don't have to pretend to respect sophistry, or those who engage in it.
I see your disgust but again feel you don't really do a good job on the specifics.
Again, I realize you disagree with long held -- before the New Deal given the breadth you are taking it -- doctrine. But, this is not the same thing as those who disagree not "caring."