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June 10, 2004

Comments

Great insight on the balance between rule and overstep, Sebastian. There's a certain pragmatist perspective that on the one hand is counter to the rule of law, but on the other actually applies to the real world.

This executive administration has proven way, way too many times that it perceives separation of powers and checks and balances as a burden to be avoided at every opportunity, something I hope would give principled conservatives long pause for thought.

Bit afield, but I wonder if this outrage combined with McCain's history with torture would cause him to reconsider the vice presidency, in an effort to remove this administration from power (That's analysis, not idle fantasy, I swear!)

A major concern of mine is the balance of power between the legislative, administrative and judicial branches.

Pshaw! You certainly must be aware that the concept of Separation of Powers was first proposed by the Baron de Montesquieu, who was dangerously French. Now that we know that Old Europe is evil and decadent, we must surely discard such silly notions; and just as French Fries gave way to Freedom Fries, so must Separation of Powers give way to Freedom of Powers. Huzzah!

Montesquieu was also dangerously secular (he was one of the first to propose removing the clergy from political power), which obviously proves that legislative limits on executive power makes the Baby Jesus cry.

So the memo is bad both because it attacks the proper Constitutional balance

See above. Constitutional balance is namby-pamby Froggery. Sebastian, why do you hate America?

Great post, Sebastian. Nice parallel with the "assisted suicide" point.

Great post. As to the last question:

As I understand it, "textualism" is not so much a statement that you have to start with and abide by the text--a principle almost everyone agrees with--as an idea that certain sources are not legitimate in interpreting the text, and you must stick to the words themselves and dictionary definitions of them and some general canons of construction (e.g., no word is extraneous) rather than historical evidence, purposive readings, etc. Since big parts of the Const. are ambiguous it sometimes leads to hang your answer to those questions on the placement of a comma or logical rules of statutory construction that bear little resemblance to how people actually behave. Or it leads to repeat "free speech means free speech" in a way that is actually not a very good argument. (This is from someone who isn't a textualist, so take that characterization with a grain of salt.)

There are definitely issues where a textualist v. non-textualist approach lead you in different directions. A strict textualist interpretation probably means that the equal protection clause doesn't apply to the federal government, for one thing--though the two most famous textualists I can think of (Scalia and Hugo Black) don't actually take this position. (Scalia might think the key case--Bolling v. Sharpe--was wrong but should be upheld because of stare decisis, but that's something he's made fun of other judges for, so....)

Anyway, I don't think this is one of those questions, though. It's just not a close issue. Unless by "textualism" you mean "arguments using the text of the Constitution," but by that standards most liberals are textualists.

In general, I don't think textualism is that great a safeguard, because textualist judges are
as likely to transgress as many others. Hugo Black wrote Korematsu. Scalia argues that undocumented immigrants should not count as "person"s under the 14th amendment--something I do not belief you could find support for in the dictionary; and that a statement that requires the Court to hearing "actual cases or controversies" places severe restrictions on who can sue--again, not something you're going to find much support for in a dictionary definition or other parts of the Constitutional text.

Not to quibble with your analogy of torture with the law on assisted suicide, BUT,

Oregon has twice passed referenda to allow assisted suicide, (and a modest number take advantage of this law each year - 129 total since 1998, ranging from 16 to 38 per year)

"A federal appeals court Wednesday rejected the Bush administration's effort to punish doctors who prescribe lethal medication to terminally ill patients under Oregon's assisted suicide law."

Oregonian

I do agree that regardless of philosophy of judicial interpretation, since the late 1600's (English Bill of Rights), the executive cannot overrule or disregard the law. In this case at least four laws are controlling: (there are others)
- US Torture Act
- US War Crimes Act
- Uniform Code of Military Justice
- Treaty Adherence to the Geneva Conventions


Well said, Sebastian.

And this in particular:

This does make for an interesting note in the Constitutional interpretation battles. For those who don't put much faith in textualism--how do you know that the Constitutional argument put forth in this memo is wrong?

Indeed. Well said.

Katherine --

In general, I don't think textualism is that great a safeguard, because textualist judges are as likely to transgress as many others. Hugo Black wrote Korematsu. Scalia argues that undocumented immigrants should not count as "person"s under the 14th amendment--something I do not belief you could find support for in the dictionary; and that a statement that requires the Court to hearing "actual cases or controversies" places severe restrictions on who can sue--again, not something you're going to find much support for in a dictionary definition or other parts of the Constitutional text.

Granted that textualism is not perfect (nothing is), and many of its practicioners even less so. However, IMHO, it's still far preferrable to start with the notion that the words mean what they say according to their ordinary definitions at the time they were written. If there's a particularly strong argument that something other than the literal is meant, then let it be made.

But perhaps that's essentially what you're saying, and we're merely emphasizing different things.

von

I agree with most of what you've held forth here, Sebastian, but I do need to quibble with one point--and it's probably a sign of the strength of your argument that both my quibble and the other major one in this thread were about your analogy.

There are extreme cases where a patient is in quite a bit of pain, wants to die, has a terminal illness but cannot kill himself. Cases where all four are true are fairly rare but they do exist.

Someone else already pointed out Oregon's law. I would add that "cannot kill himself" should not be a required test for legitimate assisted suicide. If the other three conditions exist, is it not reasonable for someone to seek expert advice on how to painlessly and efficiently terminate their life than to try messy, dangerous, cruel, and often unsure methods like pills or a gun?

via Mark Kleiman: "And Brad DeLong relays an email correspondent's account of a talk by Sy Hersh at the University of Chicago: "He said that after he broke Abu Ghraib people are coming out of the woodwork to tell him this stuff. He said he had seen all the Abu Ghraib pictures. He said, 'You haven't begun to see evil...' then trailed off. He said, "horrible things done to children of women prisoners, as the cameras run.'"

Sorry about the link

Catsy: (just to clarify a minor issue in the argument)

Sabastian said: "There are extreme cases where a patient is in quite a bit of pain, wants to die, has a terminal illness but cannot kill himself."

You've discussed the 'cannot kill himself' portion. In Oregon law, that isn't a condition, nor is the "quite a bit of pain".

In shorthand, the law provides that two MDs must find that the patient is within 6 months of death, competent to decide, and expresses a desire on two occasions for a prescription. There are other procedural safeguards. But only eminent death and a expressed desire for "Death with Dignity" (the title of the law) are necessary.

I might add that each year about twice the number of prescriptions are issued than are actually carried out. The key point is that the patient decides, and they are given the ability to control the process.

If one wants to link to what's on Brad deLong's blog, it's useful to so link.

I had forgotten that Oregon had assisted suicide. So I guess my analogy only applies in the rest of the country. But as a description of how people tend to go one step beyond the law I think it still holds true and perhaps even in Oregon, though we would need more research.

Content-free tag cleanup comment.

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