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So, not to put to fine a point on it, the McCain Amendment is as worthless as I said it was.

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks. Further, in light of the principles enunciated by the Supreme Court of the United States in 2001 in Alexander v. Sandoval, and noting that the text and structure of Title X do not create a private right of action to enforce Title X, the executive branch shall construe Title X not to create a private right of action. Finally, given the decision of the Congress reflected in subsections 1005(e) and 1005(h) that the amendments made to section 2241 of title 28, United States Code, shall apply to past, present, and future actions, including applications for writs of habeas corpus, described in that section, and noting that section 1005 does not confer any constitutional right upon an alien detained abroad as an enemy combatant, the executive branch shall construe section 1005 to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future action, including applications for writs of habeas corpus, described in section 1005.

That's what the president said in his signing statement on the bill.

He reserves the right to make it up as he goes along, and Congress, the Courts, the Constitution, and We; the People, can go piss up a rope.

He, after all, will be doing it for our own good, and that trumps all.

Further, if I am reading the decision referred to correctly, there is, per the Administration no way for anyone to enjoin; nor petition for redress, since the restriction is; as interpreted, placed only so long as the Executive deems it expedient (Alexander v Sandoval is a piece of Scalia's less clear writing, explaining why a petitioner has no right to make the intial case. Hinging on layers of meaning one [who is only as versed in the law as I am, an amateur who reads it for pleasure] might say it is a riddle wrapped in a mystery inside an enigma, but I suspect it's a trifle less opaque, but just a trifle). It will be for the courts to decide whether any appeal of violations of this law are allowed to be heard, but from my reading of that statment the White House position is, "We won't torture anyone unless we have to, at which point it will be legal, because the President says so, and if you have any problem with that, you can pound sand, because we also decided these people aren't entitled to any civil rights (I guess they aren't as inalienable as all that). So it's going to be an uphill battle.

(p.s. Hilzoy has more, at Obsidian Wings Comments there can be interesting, but the signal to noise ratio is often high)

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One of the things Judge Alito is proud of is his membership in the Concerned Alumni of Princeton, back in the mid seventies.

hilzoy, at Obsidian Wings has a post about it. It supports the general trend I see that Alito is against things I think are good.

Some exerpts:

"-- In 1973, CAP mailed a letter to parents of freshmen implying that their sons and daughters were living in "cohabitation," rather than simply coeducational dorms.

— In 1975, a CAP board member tried to disrupt Annual Giving by writing to alumni in the business community to consider whether their gifts were "being used to undermine, subvert, and otherwise discredit the very businesses which are helping fund private education.""

Those aren't just hilzoy's take on the matter, those are quotations from the Daily Princetonian.

hilzoy also points to Steven Dujack, of the Princetonian, who says, "So in 2005, we know that in 1985, Alito belonged to a group that was dedicated to pointlessly interfering with the functioning of a university because its student body had representative numbers of women and minorities, as required by law. A group which, for its entire existence, used as its only tactics dissembling and dirty tricks; the list above doesn't begin to do justice in describing the organization's destructiveness. A lot of people were hurt in the process. A great university was damaged."

hilzoy (a Princeton alum, from the time in which CAP was active) points out the things which are lost to those of us looking back and seeing CAP as a strange bit of folderol, people making a stink about things which didn't really matter, To understand CAP, you really have to understand that until the late 60s, the almost total absence of black students at Princeton was a feature, not a bug. It was one of the reasons people went there.

Consider, against this backdrop, the following

"Prospect" was founded in October 1972 by the then-newly-formed CAP, which was co-chaired by Asa Bushnell '21 and Shelby Cullom Davis '30. The latter, who was the University's largest donor at the time, was a strong traditionalist, firmly opposed to the many of the new directions Princeton was taking, including coeducation.

He wrote in "Prospect": "May I recall, and with some nostalgia, my father's 50th reunion, a body of men, relatively homogenous in interests and backgrounds, who had known and liked each other over the years during which they had contributed much in spirit and substance to the greatness of Princeton," according to an account in "The Chosen," a book by Jerome Karabel on the history of admissions at Harvard, Yale and Princeton.

"I cannot envisage a similar happening in the future," Davis added, "with an undergraduate student population of approximately 40% women and minorities, such as the Administration has proposed."


"An alumnus wrote in 1974 in CAP’s magazine that “We had trusted the admissions office to select young men who could and would become part of the great Princeton tradition. In my day, [Dean of Student Affairs] Andy Brown would have been called to task for his open love affair with minorities.”

For a sense of Prospect's general level of discourse:

"People nowadays just don't seem to know their place," fretted a 1983 Prospect essay titled "In Defense of Elitism." "Everywhere one turns blacks and hispanics are demanding jobs simply because they're black and hispanic, the physically handicapped are trying to gain equal representation in professional sports, and homosexuals are demanding that government vouchsafe them the right to bear children."

And this:

"CAP supported a quota system to ensure that the vast majority of students would continue to be men. Asa Bushnell, then chairman of CAP, told the New York Times in 1974 that “Many Princeton graduates are unhappy over the fact that the administration has seen fit to abrogate the virtual guarantee that 800 [out of roughly 1,100] would continue to be the number of males in each freshman class.”

And for those conservatives who oppose affirmative action on the grounds that we should pay no attention to gender or ethnicity:

"Another article published that same year bemoaned the fact that "the makeup of the Princeton student body has changed drastically for the worse" in recent years--Princeton had begun admitting women in 1969--and wondered aloud what might happen if the university adopted a "sex-blind" policy "removing limits on the number of women." In an unsuccessful effort to forestall this frightening development, the executive committee of CAP published a statement in December 1973 that affirmed unequivocally, "Concerned Alumni of Princeton opposes adoption of a sex-blind admission policy."

Some will say this doesn't really matter, because it was on the job application where Alito claims he was just playing to the refs, doing what anyone would do to get a job (this is what those of us interested in calling things by name would call either misrepresenting oneself, or lying... neither of which; as they are self-confessed, leads me to place much faith in the answers he gives today. Past behavior often being indicitive of present and future behavior. If he'd lie to get a little job, why won't he lie to get a bigger job, one which others have said he really wants, to the point that he was described as being very unhappy when Harriet Meirs was named).

But it does, because the membership in CAP is consistent with his other statements, and his written opinions. Alito has a track record of saying, and supporting the views that women, and minorities (and that would seem to extend to religious, not just ethnic and racial) don't have the same rights as white men, nor even the same standig before the courts.

Which is against the principles of the country, and the motto above the Court, "Equal Justice Under Law".

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Judge Alito said his legal opinion was that the Constitution doesn't support the holding of the Supreme Court in Roe v Wade. Since we are contemplating his appointment to a job where he will be using his legal opinions to make decisions, I think it matters still.

He said this when he was hoping to be hired by the Reagan administration. Senator Feinstein (with whom I've already shared a piece of my mind. I am not happy with her, haven't been for years, the only real problem is the alternatives I've been offered) said today, in response to him saying, in essence, "I didn't really mean it, I was just trying to get the job,"

Sen. Dianne Feinstein, D-Calif., an abortion rights supporter and the only woman on the Senate Judiciary Committee, said she asked the conservative judge about a document released Monday showing Alito in 1985 telling the Reagan administration he was particularly proud to help argue that "the Constitution does not protect a right to an abortion."

"He said first of all it was different then," she said. "He said, 'I was an advocate seeking a job, it was a political job and that was 1985. I'm now a judge, I've been on the circuit court for 15 years and it's very different. I'm not an advocate, I don't give heed to my personal views, what I do is interpret the law.'"

When asked whether she found his answer satisfactory, Feinstein said: "The question is, Did I believe he was being absolutely truthful, and I did."

The question I have is whether she believes he was being truthful when he said he would lie to get the job, because it is, at its best interpretation, disingenous to think the personal and the political never intersect with the legal opinions of those on the bench.

We know that he has, in the past, decided his testimony to the Senate about how he would behave on the bench could be rendered, "inoperative," to use the words of another menadacious public servant, in light of his not recusal in cases where he'd promised to do so.

He, and his supporters are also playing the public for fools (not exactly a bad bet), byh saying, "He relied on precedent [not clear, given his record of reversal] in the past, so (now that he has the right to set precedent, and no one abovce him to overturn; barring the odd Graham type amendment to defense bill, in response to Supreme Court decisions), he will retain that level of restraint in the future.


His record is one of putting the corporation over the individual, the police over the magistrate, the gov't ahead of the citizen.

The Ninth Amendment says the list of rights in the Constitution, and the eight preceding amendments, are not restrictive; that the people retain all sorts of rights, not enumerated. Alito, and his ilk, take the other tack, that only those rights (and not broadly) mentioned exist. Where there is a conflict between the privelege of the state and the liberty of the people, the people lose.

To be honest, I'd rather see nine Thomases on the court, than one Alito.

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Pop quiz: Name this decision.

For example, no one, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble, and to petition the Government for the redress of grievances.

Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding.

These powers, and others, in relation to rights of person, which it is not necessary here to enumerate, are, in express and positive terms, denied to the General Government; and the rights of private property have been guarded with equal care. Thus the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.

Who knew (or even took a wild-assed guess and came up with) Dred Scott v Sanford

If you ask me it pretty much gives the lie to things like this, "Mason said the U.S. government is interpreting its powers in such a way that passengers never intending to enter the U.S. connecting to international flights at U.S. airports must prove they are no threat and could be allowed to enter the country.

If passengers are deemed to be inadmissible, they have no constitutional rights even if later taken to an American prison. Mason told Judge David Trager that's because they are deemed to be still outside the U.S., from a legal point of view.

"Someone who's inadmissible is in the same category as the people that the CIA snatches and grabs from other countries," said Barbara Olshansky, a lawyer for the U.S.-based Center for Constitutional Rights, which is suing a number of U.S. officials on Arar's behalf.

"You are fair game for however executive branch wants to treat you." Flyers passing through U.S. have few rights, Arar judge told

That might give me pause, were I Mexican, or Canadian, and planning a tripp which passes through the US. because, "Fair game for the executive," sounds a little scary to me, and I'm a citizen. Then again, so was Richard Reid. He hasn't been tortured, so far as we can tell (mind you, per the Atty. Gen.s' office that means the've not caused pain consonant with organ failure or death, so...)

They promise they won't condone torture. They don't promise to let you sleep or eat, but torture (the real kind) that's not going to happen. Mind you Maher Arar might not have so sanguine a view about it, as he was in a Syrian prison for something like a year, and claims he was tortured. The US Gov't doesn't even deny that, not really. They take a more biblical view and wash their hands, after all, Syria ia a soveriegn nation.

On the plus side they did catch a guy trying to get onto a plane with a bomb. I'm sure it was easy, because we all know what they look like. This one was white, and a US citizen, but they caught him anyway.

But I digress.

Dred Scott is a favorite of those opposed to Roe v Wade and Balkinization is having a nice little conversation about that here, where the issue is substantive due process.

He points out the better parallel isn't Dred Scott, but rather the more recent decision, Kelo v New London (because they are both, at heart, sunstantive due process cases, relating to the taking of private property, and giving it to another private person) I've long held the case of Dred Scott was properly decided (apart from the silly aside where Taney tried his hand at "original intent," and muffed it something fierce, in the very passage which the Roe v Wade opponents quote, and misunderstand [that whole persons clause, which Balkinazation covers, so all I'd be doing is quoting, and you can read the swipe at Scalia for yourself).

The result (from that very referenced passage) was horrid. It served to unperson an entire people, and was used to keep them in a state of semi-personhood for another century. We are still working our way past it.

I'm digressing again (this was much more coherent before the computer crashed and all was lost. The stuff in the clipboard was, of course, gone too).

Dred Scott says we owe it to the residents of our territories (be the citizens or not) the same rights citizens have inside the actual borders.

Sadly there are decisions, relating to the land we took from Spain, which call some of that into question (it was held those territories were different, because they were taken, not incorporated, and so the full writ of the Constitution didn't really run there), but Dred Scott (that bogeyman) has kernels of hope, points we can cite to show that the Constitution is as big as those who like think it to be.

The U.S. was founded on some very big ideas, some powerful (and frightening) Ideals. The sovereignity of people, collected, was what made Gov't legitimate. It's a dangerous ideal, and has caused great strife (France, Viet-nam, Germany, Russia, Poland, Hungary, the United States, Bolivia, South Africa; all have had wars because of the manifesto we sent George the Third. That list of grievances turned the world upside down).

If we can keep those principles, as we defined them in the Constitution, we have a great thing. But we can lose them. All we have to do is let the Gov't take them back, one little bit at a time.

We have to recall what it was which made the Declaration of Independence needful, the thousand little slights which became too much to bear. If we remember soon enough, it shan't be needful to reclaim them the way they were bought the first time.

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Debate is going to go on about this.

But this article from the Atlantic Online raises an interesting, and perhaps fundamental point:

The Justices of the Supreme Court not only aren't like you and me, they aren't like other judges.

Now that Sandra Day O'Connor has announced her retirement, how many remaining justices have ever held elected office? How many have previously served at the highest levels of the executive branch of government? How many have argued big-time commercial lawsuits within the past thirty-five years? How many have ever been either criminal defense lawyers or trial prosecutors? How many have presided over even a single criminal or civil trial? The answers are zero, zero, zero, one, and one, respectively. (David Souter was a New Hampshire prosecutor once upon a time, and later served as a trial judge.)

The answers would have been starkly different fifty years ago. Five of the nine justices who decided Brown v. Board of Education, in 1954, had once worked as trial prosecutors, and several had substantial hands-on experience in commercial litigation. More famously, that Court included a former governor, three former senators, two former attorneys general, two former solicitors general, and a former SEC chairman.

That Court, in other words, was intimately familiar with the everyday workings of the political and judicial systems, and with the beliefs and concerns of everyday Americans. Not so the Court that recessed in June, eight of whose members (in addition to their long tenure in the splendid isolation of the Supreme Court's marble palace) have been drawn from judgeships on appellate courts, and sometimes from academic law before that—places already far removed from the hurly-burly of our judicial and political systems. The current justices are smart and dedicated. But they're not like you and me.

Debates over the Court's "balance"-ideological, ethnic, gender-will doubtless heat up as Congress considers the current vacancy. Yet there is likely to be little discussion about the greatest imbalance-the one in the collective real-world experience of its justices. The Court's steady homogenization by professional background has gone largely unremarked....

Over time the justices have failed ever more conspicuously to understand what messes their decisions might make. In 1997, while forcing Bill Clinton to give a sworn deposition in the Paula Jones sexual-harassment lawsuit, the Court stunned litigators and trial judges by predicting that this was "highly unlikely to occupy any substantial amount of [President Clinton's] time." Only Justice Stephen Breyer seemed to appreciate that the realities of modern discovery practice "could pose a significant threat to the President's official functions." Sure enough, the district court ordered Clinton to answer detailed, tangential questions about his relations with various women. The rest is history....

Moreover, that road is receding further in the rear-view mirror. Longer life spans and justices' increasing reluctance to retire have raised their average tenure from fifteen years before 1970 to twenty-five years since then. Until this summer no justice had retired in eleven years. Real-world experiences gained before their years on the appellate and Supreme courts have become distant memories for today's justices.

This lack of connection with the everyday may be why some of the more recent decisions like Castle Rock v. Gonzales where the court (in a Scalia opinion) held the police didn't have to enforce a restraining order (the use of the word shall in the law is the wiggle room the majority found to say the property right didn't exist to file a suit) are legally justifiable, but at odds with what seems to be common sense, and the, apparent, legislative intent of the law.

In a narrow sense this is, perhaps a legitimate holding (though Stevens, in dissent points out a similar wording in a contract for private security would be seen as a property right, and so the private company would be liable. As this was a case about personal safety, not merely material possessions that seems an interesting distinction for the Court to be hanging its hat on. Then again this is Scalia, who's never met a "strict interpretation of the text" which didn't agree with his personal beliefs).

But it may be that not living, nor really inhabiting the same world the rest of us do (where matters of life and limb are real, not abstract, issues) is part of what leads to this. The Court is an ivory tower. Tenure insulates, as it should (the sketch where a newly elected Thomas is catering to the other justices, until someone points out he isn't subject to anyone's approval for his continued presence, at which point he gets what would be called, "uppity," in some circles, touches on a very real point about the Court), but to take those we grant such tenure to, from a class already tenured, is to double the insulation.

That much insulation may be ill. Not that these aren't thoughtful people, but that may be the very crux of the problem. Everyone has heard the jokes about theory and practice, well the lawyers we are asking to set the boundaries between them haven't had much practice.
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I've been boiling about this for a few weeks. The simmer started when Judge Lefkow's family members were killed and the fringey-right started crowing about it, while trying to say it was not only not their fault, but people were wrong to look at them suspiciously.

Since people like Hal Turner as Orcinus points out, not only say things about judges needing to look over their shoulders, but they get treated well by the Republican Party the fringe is moving into the "Big Tent."

That's odious enough, so too is the part of the party trying to side-step little things like the First Amendment by trying to remove theocratic laws from the purview of the court. The Constitution Restoration Act

The nut of the act is,
Sec. 1260. Matters not reviewable
"Notwithstanding any other provision of this chapter, the Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any matter to the extent that relief is sought against an entity of Federal, State, or local government, or against an officer or agent of Federal, State, or local government (whether or not acting in official or personal capacity), concerning that entity's, officer's, or agent's acknowledgment of God as the sovereign source of law, liberty, or government."


In interpreting and applying the Constitution of the United States, a court of the United States may not rely upon any constitution, law, administrative rule, Executive order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than English constitutional and common law up to the time of the adoption of the Constitution of the United States.

Scary. This has been introduced before, and it failed to leave committee, which is what will probably happen now. That is, to some degree what the co-sponsors (which number 23) probably want. They get to pose for the fringie elements of their constituency, without having to pony up a vote which might piss the rest of us off.

So it might be better for this nonsense to see the light of day, that the snake-oil salesmen be forced to drink their own potion, or be shown up for the frauds they are. On the off (and right now it's a very off chance) the foul thing passes, well it will be ruled unconstitutional (there are ways in which it can be brought before a court, diversity being the easiest).

this time around the author added the second clause That is the one I fear most, because it calls for an ossification of the law.

England has the Common Law, which is an ever changing thing, and might be completely replaced by a single act of Parliament (they could make the Monarch absolute again, should they so choose). We have a Constitution, a more rigid document, but not absolute.

There is a parallel, in my opinion, in the Old Testament, and how it applies to Orthodox Jews. The Law is defined. There is no question about what it says. God ordained it, and meant Man to follow it. But Man is fallible, and cannot completely apprehend the fine turns of God's meaning, so they have the Talmud. A bit more than 2000 years of case law to refine the application (not the meaning) of the law.

The Bible does not address cars, nor electricity, nor any of a vast host of modern inventions. Does a cotton-poly blend violate the prohibition on the mixing of unlike objects? Is electricity fire? If it is, how is it kindled (since one cannot light a fire on the Sabbath this is a crucial thing to ascertain)?

The Talmud deals with this, and is still growing, because the problems of people never end.

We have the same, and we have been arguing those cases for more than 200 years. This law would cast all that aside. Dred Scott v Sanford becomes as dead as John Brown.

The States become completely autonomous save for those laws which the Feds specifically apply to them.

It, in short, invalidates the principles of Federalism and returns us to the Articles of Confederation; which worked so well we disposed of them.

The leadership of the party has gotten on board with this. Tom Delay (Speaker of the House) has said "I believe the judiciary branch of our government has overstepped its authority on countless occasions, overturning and in some cases just ignoring the legitimate will of the people.” as well as, “The time will come for the men responsible for this to answer for their behavior, but not today."

His most amazing claim was the laying of blame for the aforementioned riding over the will of the people on the Congress , “"I blame Congress over the last 50 to 100 years for not standing up and taking its responsibility given to it by the Constitution. The reason the judiciary has been able to impose a separation of church and state that's nowhere in the Constitution is that Congress didn't stop them. The reason we had judicial review is because Congress didn't stop them. The reason we had a right to privacy is because Congress didn't stop them."

So he seems to think Art. III of the Constitution, creating a Supreme Court is immaterial, as well as that pesky little Bill of Rights.

Rights are the heart of this issue, they have been since Nixon started railing about “strict construction.”

The question before us is this, “Is the Constitution prescriptive, or proscriptive?” That is, does it tell us what rights we have, or does it list only those rights we cannot lose?

The language of the Bill of Rights is proscriptive. It details those things the Executive, and the Legislative cannot take away, and the Judiciary is set to keep them from doing it, which is why judges are appointed for life.

Which means the Gov’t has to show a legitimate interest before it can limit a right, even those not enumerated.

That is the nub of the Ninth Amendment, the one Madison felt essential lest, by enumerating particular exceptions to the grant of power, it would disparaged those rights which are not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a Bill of Rights into the system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution."

Alexander Hamilton said much the same, “I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted.” (Federalist Papers 84)

There are those, as with Kurt Lash,, Texas Law Review, Vol. 83, No. 2, December 2004, who argue the 9th isn’t meant to protect the rights of citizens, but rather is part, and parcel of the 10th, Obscured by the contemporary assumption that the Ninth Amendment is about rights while the Tenth Amendment is about powers, the historical roots of the Ninth Amendment can be found in the state ratification convention demands for a constitutional amendment prohibiting the constructive enlargement of federal power. (I think Lash errs in his basic premise holding the only reason Madison intended the amendment was to appease states and reduce the encroachment of the Feds on them. The 10th does that. The Ninth is meant to see the same encroachment isn’t done piecemeal to individuals.

Madison’s private correspondence to Jefferson seems to contradict this, "My own opinion has always been in favor of a Bill of Rights; provided it is so framed as not to imply powers not meant to be included in the enumeration.... I have not viewed it in an important light, because there is great reason to fear that a positive declaration of some of the most essential rights cannot be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition would be narrowed much more than they are likely to ever be by an assumed power.”

So the people are reserved those rights and powers not expressly given to the Feds. Privacy is perhaps greatest among them. The Declaration of Independence made the decisions to raise Liberty over Property and the principles of the Nation certainly are that, so long as one doesn’t infringe another, one may do as one likes.

But Privacy, or Speech,Religion, Marriage, or any other right being, “created” by the courts is a red-herring; a myth. The People hold those rights. Unless the Government has a compelling interest in the limit of them (which one can argue for firearms, to property; in the pursuit of information leading to a crime, and to property, by way of taxes; in that we demand the Gov’t provide services and somehow not only the services, but the labor of those who provide them must be paid for). The questions we face are always, how many of our rights is the Gov’t, and its agents, allowed to infringe, and when they are so allowed, to what degree.

That is the Court’s job. Abusing judges for doing what they are told to do, even when we disagree, is a moral wrong. It violates the social contract. The majority is not always right, and cannot, by brute force be allowed to run roughshod over the minority. Worse would be allowing a vocal minority to take advantage of beating the drum and rending their hair to appear they are being abused and thus impose a limit to others freedoms because they disapprove of them.

Making the Judiciary a subservient branch of Government (which is what the DeLays, and the Shelby’s, and; though not so obviously, the Frists, want) would be the unmaking of the Nation.

I will close this (already long enough) with some words from Alexander Hamilton, According to the plan of the convention, all judges who may be appointed by the United States are to hold their offices during good behavior; which is conformable to the most approved of the State constitutions and among the rest, to that of this State. Its propriety having been drawn into question by the adversaries of that plan, is no light symptom of the rage for objection, which disorders their imaginations and judgments. The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government.” but that is the beginning, there are words which have been left out of other people’s quotations of Federalist Papers 78.

“This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power1; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers."2 And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

… A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute….

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