I really hope you'll take the time to read this post by Glen Greenwald. It captures my sentiments precisely, in language I could only hope to summon.
Joe
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The Years Of Writing Dangerously
9 years ago
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3 comments:
Greenwald is persuasive at his best when appealing to our soaring admiration for the wisdom of the founders and first principles,
"By the design of the Founders, most American political issues are driven by the vicissitudes of political realities, shaped by practicalities and resolved by horse-trading compromises among competing factions. But not all political questions were to be subject to that process. Some were intended to be immunized from those influences. Those were called "principles," or "rights," or "guarantees" -- and what distinguishes them from garden-variety political disputes is precisely that they were intended to be both absolute and adhered to regardless of what [Michael} Massing calls "the practical considerations policymakers must contend with.""
But he does somewhat blithely assume that there is, and always has been, only one way of reading U.S. Constitutional language -- not true in history, or in practice. Jeffrey Toobin recent book on the U.S. Supreme Court in the early post-Sandra Day O'Connor terms illustrates that.
Otherwise, I understand the basic criticism of the beltway (and probably any political elite) mentality that all issues can be compromised -- at the Hawaii State legislature, an issue is never so important that it can't just die and be taken up in the next session, and perhaps the one after that, and so on. . . .
Bilbo,
I don't see where Greenwald assumes that there is only one way of reading the constitution. I'm sure he knows that there is room for good faith disagreement regarding what constitutes "due process" or "equal protection." What he's criticizing is the notion that we can dispense with constitutiional principles when it is politically expedient to do so. On this I'm with him 100%.
Joe
Greenwald's examples, however, are subject to debate:
The President "shall take Care that the Laws be faithfully executed." "[A]ll Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land." "Congress shall make no law . . . abridging the freedom of speech." "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause." "No person shall be . . . deprived of life, liberty, or property, without due process of law."
Granted, Constitutional provisions are first principles that shouldn't be subject to political/practical considerations -- but they have been, and the courts (including the U.S. Supreme Court) have "approved" the obvious violation of those principles by the executive in times of war -- you can slap Abraham Lincoln's hand for suspending habeas corpus during the Civil War and revisit the Yasui-Korematsu Japanese internment cases decades afterwards, but this Country has not really followed the idealized dichotomy pitched by Greenwald. I do sympathize with Greenwald and you about the wrongheaded interpretations by John Yoo and others in the GWB administration about the limits of executive power and what constitutes torture and what obligations the U.S. government had to NOT torture, but its sloganeering to say a person's view of Constitutional provisions aren't colored by their political viewpoint (are the federalist papers or the anti-federalist papers useful for original intent regarding the Constitution?).
Since the U.S. Senate has not adopted the Law of the Sea as required by the Constitution, do we need to comply with its provisions since a past executive administration negotiated and agreed to it and some of our Pacific neighbors have signed on?
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