How I Learned to Stop Worrying and Love Judicial Review

by publius

One of the themes of the John Adams mini-series is the tension between the passions of the mob and the rule of law. We tend to forget – spoiled by 150 years without domestic war – just how precarious the line between civilization and anarchy can be. As 1770s Boston illustrated, mobs can rise quickly and do terrible things. In watching this tension play out on HBO, it reminded me of my own evolution regarding the “rule of law” (the concept). Ironically enough, the George W. Bush era has made me far more conservative on legal matters than I once was. Specifically, Bush has made me more of an Adams man than a Jefferson one.

As a law student, legal realism made a deep impression on me. To be perfectly blunt, I thought law didn’t matter. Constitutional law in particular seemed like one giant fraud – it was nothing more than political preferences cloaked in an impenetrable linguistic façade of legalisms. It was no accident that conservative judges tended to line up on different sides than liberal judges. Nor was it an accident when sweeping constitutional changes occurred with new administrations. [What’s particularly annoying about conservative jurisprudence is not so much that it’s political, but the obnoxious self-righteous denials that it is even slightly political. Their positions (which practically all align with their political views) are not policy preferences but simply “interpretations” of a “static” constitution, or the will of the framers, or whatever.]

In short, law was politics – nothing more. The rule of law was a convenient fiction. And recent events seemed to support that skepticism. Bush v. Gore remains to this day a naked exercise of illegitimate judicial power-grabbing. The audacity of 5 individuals to stop the election for the President of the United States burns me to this day. They should have all, frankly, been impeached for that (if not tarred and feathered – though that apparently really burns). Bush v. Gore was the ultimate vindication of legal realism’s predictions. It happened in 2000. I entered law school in 2000. So it goes.

Looking ahead, I feared what was to come. In particular, I feared that a Bush-appointed majority would eventually overturn significant portions of the administrative state. To head that attack off at the pass, the answer was to turn over more power to legislatures. I wanted the political process to have more power, and courts to have less. Part of my motivation was self-interested politics, part of it was a respect for democratic legitimacy.

Courts, I thought, should intervene only to fix flawed political processes (e.g., disenfranchised South) or to provide protections for minorities (religious, ethnic, etc.). And if you read old Legal Fiction posts from 2004, you’ll see a lot of these political process-type arguments. At that time, I had more faith in the people than in the elite judiciary.

Then the 2004 election came. And with it, the American people endorsed both Iraq and lawless “anti-terrorist” activity, particularly torture. And it got me re-thinking all this.

To be blunt, I began to fear the mob. It wasn’t so much the war itself that scared me. Smart people at the time could offer smart reasons for going to war. What bothered me was the manner in which we stormed off to war. In August 2002, no one even had Iraq on their mind. Yet, by early October 2002, the nation was clamoring for invasion. It’s a really terrifying thought – the idea that a single terrorist attack could cause an entire nation to be whipped up into a nationalistic frenzy in a mere matter of weeks on something so consequential.

Mankind hasn’t really changed that much since we've emerged from the forest. Passions have consumed us for as long as there have been men. We saw it in the French Revolution. We saw it in the Russian Revolution. We saw it in Boston in 1770 when British officials were swept up and tortured with burning tar (a scene the HBO series chillingly portrays). And we saw it in 2002 when America rushed mob-like into war in a matter of weeks, based entirely on falsehoods and misguided assumptions.

My larger point here is that the Iraq War and our embrace of torture has led me – like it led John Adams – to fear the passions of the crowd. We tend to be at our worst when we’re mad and scared. If another serious terrorist attack came, I shudder to think what the ultra-nationalists would clamor for, and what we’d ultimately do (particularly if McCain is president).

That’s why we need the rule of law. That's why it matters. The run-up to the Iraq War gave us glimpses into the baser, more primitive elements of man that we’ve been fortunate enough to ignore here in rich, fat, safe America. Seeing glimpses of the mob, though, made me realize that the rule of law is more important than I had previously thought.

To be a bit more cynical, I’ve also become more comfortable with giving power (circumscribed) to an elite judiciary. I’ve made my peace with judicial review – a concept I’ve opposed to varying degrees over the years.

In the face of a mob, the judiciary is one of the last hopes that individuals will be treated according to law rather than intoxicated prejudices. Katherine is right when she says that the efforts of human rights lawyers in courts have done infinitely more than our cowardly legislature has to fight torture and to bring it to light. The Supreme Court was also the only institution willing to put some real limits on Bush’s Calvinball courts that could have sent (and may yet send) innocent people to their death. The courts’ efforts to reimpose law, however, would be threatened if people like me keep going around calling the whole enterprise illegitimate and phony.

All that said, I’m still uncomfortable with judicial review. As snotty as I may sound at times, there’s a deep populist rural Kentucky streak in me. But still, I think giving power to an elite judiciary is a necessary evil in light of recent events. (More precisely, recent events have reconfirmed ancient truths). The terrorism cases have shown us the importance of rule of law – specifically, they’ve shown that it is something more than a political preference imposed by those in power. It is, in this respect, the wall separating our higher and lower selves. We break it at our peril. Indeed, that’s exactly the theme that John Adams raises in the Boston Massacre trial, and I think it’s a powerful argument – and a powerful warning.

Comments

[A Different Matt]

This definitely reads like "Mind your elders" or somesuch, and if our governing Aryans showed a modicum of restraint, foresight, humanity, or skepticism, I'd agree that we should indeed heed our betters.

But they got us into this mess. The people weren't clamoring for war until Bush and his court of jesters led the people there. The people of Spain weren't clamoring for war after the terrorist attacks back in 2005(?). So there's one example of people, lacking some frenzy-inducing propaganda, can indeed choose peace, civility, and reason in the absence of safety.

I have some sympathy for your argument to accept Judicial Review and legal realism, but frankly, the whole things seems to ignore the elephant in the room - strife keeps our elites in power.

[Bruce Baugh]

Matt makes a good point. The major problem of the '00s isn't the public, it's the entrenched elites and the absence of feedback or correction to their campaigns of misrepresentation.

Mind you, judicial review can be a real help with that too.

This marks a significant shift in my own thinking, I should note. Around 2004-5 I was really down on the public. But as time goes by and I see the public learning and the elites not, I've been looking back and thinking "you know, falling for duplicity isn't the best thing in the world, but it's not the worst, either, and it's not the root problem".

[Brett Bellmore]

For all your disgust with Bush v Gore, it never would have happened without Gore v Harris, which wasn't much better in terms of a court deciding to toss election laws aside, and just keep rolling the dice until they came out right.

Judicial review is justified because, without it, constitutions aren't law. And why should the people be subject to law, where the government isn't? By what right do the lawless impose law?

But that implies that those doing the review must be bound by law, too. As they're not elected, even more bound by the legislature.

[cleek]

For all your disgust with Bush v Gore, it never would have happened without Gore v Harris, which wasn't much better in terms of a court deciding to toss election laws aside, and just keep rolling the dice until they came out right.

as with a typical 2nd amendment thread, i'm sure everybody here can recite all sides of a Bush v Gore thread from memory.

so, umm, let's just recite it to ourselves off-line, and save everybody the trouble of typing it all in... ?

[Slartibartfast]

What fun would that be? I mean, how could we possibly get along without Jesurgislac pointing out how Bush Stole The Election, twice daily or so?

[Incertus (Brian)]

Come on now. Bush didn't steal the election. He just happened to win the only vote that mattered, and he won it 5-4.

[DaveC]

so, umm, let's just recite it to ourselves off-line, and save everybody the trouble of typing it all in

The problem is that some people will insist over and over that the 2000 election was stolen and present that opinion as somehow indisputable. And if nobody disagrees, then that is deemed to be the truth, even if it is not really the truth. So other people have to point out how the electoral college works, how disputed elections are supposed to be handled by state governments, then the US House if necessary. Or maybe point out the mishmash of open and closed primaries, caucuses, super delegates, etc. used when choosing a nominee in the first place.

Say, you were in a group where somebody claimed that the CIA invented the AIDS virus. If nobody in the group steps up and actually says that this is not true, then everybody else in the group might believe it, even if it isn't so.

[cleek]

The problem is that some people will insist over and over that the 2000 election was stolen and present that opinion as somehow indisputable. And if nobody disagrees, then that is deemed to be the truth, even if it is not really the truth.

yeah, yeah. someone is wrong on the internet

[Jesurgislac]

cleek: so, umm, let's just recite it to ourselves off-line, and save everybody the trouble of typing it all in... ?

I wrote a Greasemonkey script, actually. Wanna share? ;-)

[AnonymousInMA]

A very interesting post, and I think an interesting topic. Just a few thoughts to add...

I think I once embraced the idea of the Supreme Court as a group of wise men/women who site on high, enforce the rules, and protect us from ourselves. However, having a passing interest in the Court and its history, the more I read, the more it is clear that the court is a very political body. The justices are appointed by politicians, so it is not terribly surprising that the Justices carry their own politics with them into their deliberations.

However, I think the value in our judicial system is that by the very nature of lifetime tenure, it is slow to change. So, the current conservative trend on the court doesn't reflect the current administration and congress as much as it reflects the electorate's move to the right starting with Reagan. Therefore, a single election in which the fans of fear and division are flamed to elect GW Bush is not enough to dramatically alter the Court, even though it may bring Roberts and Alito with it. They are not sufficient to radically change the court without already having Scalia and Thomas, and moderates like Kennedy, Souter, and sometimes Breyer.

I don't know if the framers thought of the system this way, but I think of political trends as being pretty noisy - i.e. they can change suddenly, and they are impacted by major events/people. To put it in engineering terms (I apologize), the Supreme Court acts like a low pass filter - they simply follow the broad trend while filtering out the sudden/random fluctuations. So, the large liberal trend in the country starting with FDR led to the Warren Court, while the large conservative trend starting with Reagan has led us to the Roberts Court.

I personally think having a branch of government that exercises Judicial Review exactly to filter out the sharp changes is one of the great things about our system, and in many ways it does protect us against the passions of the mob.

Not sure that the argument is very clear, but just my two cents.

[AnonymousInMA]

A very interesting post, and I think an interesting topic. Just a few thoughts to add...

I think I once embraced the idea of the Supreme Court as a group of wise men/women who site on high, enforce the rules, and protect us from ourselves. However, having a passing interest in the Court and its history, the more I read, the more it is clear that the court is a very political body. The justices are appointed by politicians, so it is not terribly surprising that the Justices carry their own politics with them into their deliberations.

However, I think the value in our judicial system is that by the very nature of lifetime tenure, it is slow to change. So, the current conservative trend on the court doesn't reflect the current administration and congress as much as it reflects the electorate's move to the right starting with Reagan. Therefore, a single election in which the fans of fear and division are flamed to elect GW Bush is not enough to dramatically alter the Court, even though it may bring Roberts and Alito with it. They are not sufficient to radically change the court without already having Scalia and Thomas, and moderates like Kennedy, Souter, and sometimes Breyer.

I don't know if the framers thought of the system this way, but I think of political trends as being pretty noisy - i.e. they can change suddenly, and they are impacted by major events/people. To put it in engineering terms (I apologize), the Supreme Court acts like a low pass filter - they simply follow the broad trend while filtering out the sudden/random fluctuations. So, the large liberal trend in the country starting with FDR led to the Warren Court, while the large conservative trend starting with Reagan has led us to the Roberts Court.

I personally think having a branch of government that exercises Judicial Review exactly to filter out the sharp changes is one of the great things about our system, and in many ways it does protect us against the passions of the mob.

Not sure that the argument is very clear, but just my two cents.

[Ivan]

It's funny to me that your current post is in support of judicial review, because when I read your Second Amendment post, my main thought was, "Publius just wants to do away with judicial review, huh?

Your argument there seemed to come down to allowing the legislature to determine what the Constitution requires, in order to keep up with the times. That's a perfectly defensible position--IF you want to repudiate Marbury v. Madison. And the Constitution doesn't necessarily require judicial review; there are strong arguments for allowing coordinate branches, particularly the legislature, a larger role in determining what the Constitution means. But I think you're trying to have it both ways here.

Here's what I mean. When you agree with 'the mob,' (on Commerce Clause powers, gun control, etc), you want the Court to read the Constitution as keeping up with the times, following legislative understandings. When you disagree with 'the mob,' you want the Court to step in and exercise judicial review, striking down ultra vires laws. Am I reading you wrong?

PS: In a sense, I'm living in a glass house throwing stones. This is something I've struggled with as well. Politically, I like penumbras, I like Wickard's Commerce Clause reading, I like gun control, etc. But I can't justify my desire for the Supreme Court to do what it did in Lawrence, Roe, Miranda, etc while arguing with a straight face it did poorly in Lopez, Morrison, Heller (I'm pretty sure), and so on. Maybe you can help me out.

[publius]

ivan - you're spot on. there's definitely some tension there. this is hard stuff, and i almost feel like i need to throw everything out and just start con law from scratch.

more precisely, i'm beginning to think this is so complex that there simply aren't theories that cover everything coherently.

i guess to answer the question though. This isn't saying "courts should become more activist on every single issue." i'm just moving further down the spectrum b/w the two poles of full deference and full activism.

in other words, i used to believe judicial review was justified in only a tiny set of situations. that set has since expanded.

also, on the second amendment, i meant to say that one argument for a collective reading is that it empowers legislatures, while the indiv reading puts sharp limits on them

but this is all hard stuff

[Slartibartfast]

I take actions consistent with my principles, she is a judicial activist, they are driven by politics.

[Brett Bellmore]

"i meant to say that one argument for a collective reading is that it empowers legislatures, while the indiv reading puts sharp limits on them"

That's kinda the POINT of having a bill of rights, isn't it? To limit the government? That's what the 1st, 3rd, 4th, 5th, 6th, 7th, and 8th amendments do: Put limits on what the legislature can do.

If you don't want to have a Bill of Rights, just say so openly.

[publius]

it depends brett on whether you think courts or legislatures should be the final arbiter of the constitution.

but more directly on point, yes, that's what the bill of rights does. my point, though, is that it's not clear that the scope of this particular right expands very far. thus, in the face of 2 equally plausible readings, the excessive legislative-limiting is a policy argument

[Brett Bellmore]

If that's what the Bill of Rights does, then the reading that doesn't do that is clearly wrong, because it makes no sense of the 2nd amendment being in a bill of rights.

Look, I can understand that you don't like the 2nd amendment, but when you've got a clause of the Constitution, and two readings, under one of which that clause is utterly without any force, they are NOT "equally plausible". That's a standard rule of construction. You interpret clauses of a constitution so as to give them effect, not to render them moot.

And two readings of the phrase, "right of the people", one of which does not read it as a right, are not equally plausible, either.

Your dislike of a constitutionally guaranteed right to own firearms is causing you to put a VERY heavy thumb on that scale.

[Baskaborr]

To DaveC, OCSteve, Sebastian, et al. I would not say the 2000 election having been stolen is beyond despute. It is perfectly obvious that a number here on ObiW and millions across the country dispute that statement. Still, I have looked at all the information that I could find about the election and I feel perfectly comfortable with considering the statement that Gore won the 2000 election a statement of fact. There are millions of people in the US who dispute the fact of evolution, but that doesn't change its reality.
In point of fact, I have met dozens of people who still believe that NASA faked the moon landing and the all space flight is a hoax. I have even encountered one genuine flat earther. So if the standard for a fact is being is "beyond dispute" then evolution, space flight, even the heliocentric solar system don't qualify.

[bc]

power to an elite judiciary

more precisely, i'm beginning to think this is so complex that there simply aren't theories that cover everything coherently.

One of my pet peeves. Sometimes I think of the various constitutional theories as being a sort of "emperor's new clothes." The intellectual battles are for the sake of sounding intellectual, not for making common sense decisions. E.g. O'Connor's tripartite analysis.

I would like a few intelligent non-lawyers on SCOTUS. If the Constitution is for the People, why should you need a law degree to understand it (I say this as a lawyer)?

"Elite judiciary" smacks of supremacy and not equality between the coordinate branches of government.

it depends brett on whether you think courts or legislatures should be the final arbiter of the constitution.

Or, (dare I say this here!) the Executive. All three can effectively be arbiters of what is constitutional. By design. If two or more go different directions, you have this wonderful thing called a stalemate. Or impeachment proceedings.

Still, I have looked at all the information that I could find about the election and I feel perfectly comfortable with considering the statement that Gore won the 2000 election a statement of fact.

Go read "Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts" by Posner. If you dare (I don't mean that the arguments will change your political view, just that it's the sort of reading that puts you to sleep-lots of statistics, that sort of thing).

Also, seems to me that most of the "stolen" arguments focus on chads, a few counties in Florida and not on Florida law. Not to start the regurgitation cleek is trying to avoid. :)

[Katherine]

I swing back and forth on this. Deeply cynical after Bush v. Gore & the criminal procedure decisions I read during my first year in law school. Far more idealistic & sympathetic after I took Con. Law & a class on the South African Const. court my second and third years. But when I started to practice I got cynical again. (It's reached a fever pitch this week after watching the Supreme Court arguments in Omar & Munaf. Is there a word for an experience that's both a fantastic opportunity that you're grateful you had, and yet deeply, deeply depressing?)

When I'm cynical, though, my response isn't to think that judicial review should go away; one of the thing that makes me angriest is conservative justices' and judges' attempts to slam the court house doors shut on certain kinds of litigants. And I tend to think: if we're going to have Scalias and Thomases and Robertses, we also need Brennans and Marshalls.

[Jesurgislac]

bc: Go read "Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts" by Posner.

Well, I'll look for it in the library - it doesn't look (from Amazon and other reviews) like the kind of book I'd feel I had to have around the house to pick up and dip into at odd moments.

However, based on the reviews both positive and critical at Amazon, it appears that Posner's argument is basically: "Yes, quite possibly Gore would have won if you count all of the votes, but it's just fine for one side to stop counting and deny recounts in order to give the victory to their candidate, rather than to the candidate the voters chose."

I am not an expert on Florida constitutional law, so quite possibly it does include the provision "The Republicans get to stop counting the votes as soon as they've achieved a result that suits them", or however it's phrased.

But Florida electoral law, and long-standing democratic traditions, say that you count every ballot where the voter's intent is clear: and the basic principle of democracy is that the candidate whom most people voted for is the candidate who won. In Florida, that was Al Gore - despite the Republican efforts to get likely Democratic voters off the electoral rolls beforehand, and the Republican efforts to prevent the ballots from being counted because Jeb Bush's big brother had been promised the win, not the lousy Democrat the voters actually preferred.

(And yeah: I was making it up about the Greasemonkey script.)

[Katherine]

fixing italics; sorry.

[Jesurgislac]

Italico delendi!

[liberal japonicus]

Is there a word for an experience that's both a fantastic opportunity that you're grateful you had, and yet deeply, deeply depressing?

Schadenmöchte??

[sophie brown]

I graduated from law school twenty years ago, and since then I have practiced in courts from the us supreme court to a little district court next to the cane fields in rural hawaii. I have to say that, what makes judicial review most palatable to me, is that many judges fell constrained by their professional obligations to decide things impartially and in accordance with common law traditions and the rules of reason. In my experience most judges I have encountered feel constrained to justify their positions in an ojective reasonable way.

Of course, not all judges feel those constraints. And Supreme Court justices are among the least principled, in a way, which is why con law class makes one a cynic.

Here is a story. Right after I graduated from law school I had some interviews for clerkships on the US Supreme Court. (I did not get one.) One of my interviews was with then-CJ Rehnquist. He asked me what my law review note was about. I told him it was about the due process rights which flowed from an earlier supreme court death penalty decision involving felony murder.

Now, shortly before my interview the S.Ct. had written a decision on the same issue; holding that those due process rights did NOT flow from the earlier ruling. I mentioned that to CJ Rehnquist, and said it looked like I had gotten it wrong.

He said "wasn't the first decision five-four (striking down the death sentence)?" I said yes.

He said, "and wasn't our recent decision five-four (affirming the death sentence)?" I said yes.

He say, "oh well, it's just politics. There was nothing wrong with your scholarship."

[bc]

I am not an expert on Florida constitutional law, so quite possibly it does include the provision "The Republicans get to stop counting the votes as soon as they've achieved a result that suits them", or however it's phrased.

No offense, but before you argue that Bush stole the election, it might help to read the provision giving Harris discretion to extend or not extend the certification deadline. I'm not an expert on the election by any means. However, Bush won the original count (and second, and third). One might argue that the Democrats wanted a standard that allowed a recount until Gore won, a standard not supported by Florida law.

Read the book.

[Jesurgislac]

One might argue that the Democrats wanted a standard that allowed a recount

...until all the votes had been counted, a standard actually required by Florida law.

As it happened, counting all the votes would have given Gore the Florida electoral college, whereas for the Republicans stopping the count while Bush was a few hundred votes ahead was the right move.

So in a sense, yes, one strategy - count all the votes! - favors the Democrats, the other strategy - "Shut up about the votes, who's got the governor and the Supreme court!" - favors the Republicans.

But it is a fairly basic democratic principle, that you count all the votes and the candidate with the most votes wins. It's fairly basic anti-democratic strategy that you rig the elections so that the candidate you want gets in regardless of who was actually voted in.

[Slartibartfast]

...until all the votes had been counted, a standard actually required by Florida law.

Actually: no. Florida statute did not, in fact, require a statewide recount.

bc, I've jumped through these hoops before, here at OW, and linked to and quoted statute, and I have to say that the horse you are beating, it is effectively dead.

[Sebastian]

My take-away from Florida was that you need to have clear election rules from the outset.

When you wait to interpret the rules until after you exactly know how the interpretation will effect the outcome the temptation to skew slightly toward your perceived outcome is enormous. So much so that even if you think you are being fair, you won't be able to appear to be being fair.

I think it is a travesty that we didn't get very extensive overhauls in the clarity of the rules immediately after the problem was brought to our attention. That fact reinforces my one pet conspiracy theory: that mid to low level Democratic and Republican party apparatus members both have the subjective belief that they can cheat the system better than the other side. Or alternatively, the party in charge of whichever locality believes that it cheats better than the other side. So rather than introduce better and clearer laws, they would prefer being able to continue gaming the system.

[Jesurgislac]

My take-away from Florida was that you need to have clear election rules from the outset.

My take-away was that you can't trust the Republicans not to start claiming that their electoral law never actually said anything about counting all the votes, so it's okay to stop counting votes when you get the result you want.

My further take-away was that many Americans still have an astonishing resistance to accepting that, in 2000, the candidate who won the election wasn't the one who was in the White House in 2001.

[sophie brown]

I don't think, from a constitutional standpoint, the problem of bush v. gore is affected by who would have won the recount. The problem is that the USSC jumped the shark -- it did things which did not even remotely resembled the way judges are supposed to act. Here is a good discussion: http://press-pubs.uchicago.edu/sunstein/chapter9.html.

If you consider the way judges act as a normative constraint on their power, as I do, as I think even justice marshall did in marbury v. madison, it's the majority's failure to act like judges are supposed to act which is so dangerous.

[Slartibartfast]

Horse. Dead.

It just doesn't know it's dead.

[Anarch]

more precisely, i'm beginning to think this is so complex that there simply aren't theories that cover everything coherently.

Trying madly to derail the Bush v. Gore discussion, I think you can establish a crude framework of Constitutional interpretation, as long as you remember that it is crude and there will be a plethora of cases where your interpretation will fail. At that point, I'd tend to err on the side of expanding the rights of the people -- but all people, not just a select class. Which causes problems when expanding a right to one class involves limiting the rights of another, which is sort of the entire point of the crudeness of the framework in the first place.

[ThirdGorchBro]

I'm not going to wade into the very old arguments re: 2nd Amendment (I side with Brett) or Bush v. Gore (I'm agnostic on that one). I just wanted to say that it pleases me no end to see publius write "I began to fear the mob" unironically. We'll make a conservative out of you yet, pub!

[Pooh]

Horse. Dead.

Along with 4000+ others. As my friends to the right like to say when demanding votes on judicial appointments, elections have consequences.

[Pooh]

We'll make a conservative out of you yet, pub!

Who is this "we"? Not so much 'conservative' about so-called conservatives these days.

[ThirdGorchBro]

Bother! Oh, wait, that's your line.

Maybe I should have said, "We'll make an old-school conservative out of you" instead.

[Pithlord]

Progress, publius. Your namesakes recognized that democracy is a good element in the constitution of a society with ordered liberty, but it would be disastrous to make it the only element.

The basic problem is you can't trust the mob, you can't trust the aristocrats and you can't trust the king either.

[Sebastian]

"The basic problem is you can't trust the mob, you can't trust the aristocrats and you can't trust the king either."

All true, and the worst problem is: you have to trust.

[Brick Oven Bill]

"They're trying to build a modern democracy on the rubble of three decades of tyranny, in a region of the world that has been hostile to freedom. And they're doing it while under assault from one of history's most brutal terrorist networks,"

Re: Mobs, Foreign and Domestic:

George Bush was going on this morning about how the American people can take civil order for granted and how the Iraqi people need to learn that civil order will be there for them. I don’t think too highly of President Bush. I believe that he is the one who takes civil order for granted.

With large and ever-growing numbers of people here becoming dependent on unsustainable government programs, civil order in its current stateside form simply cannot last either. Our whole existence is based upon civil disorder rooted around competition for resources.

[bc]

My further take-away was that many Americans still have an astonishing resistance to accepting that, in 2000, the candidate who won the election wasn't the one who was in the White House in 2001.

And some seem to have an astonishing resistance to actually reading the law. And an astonishing resistance to seeing an objective machine count as ANY count at all (not just a less than perfect count).

bc, I've jumped through these hoops before,

the statement you quoted wasn't me, but anyway, O.k., off the dead horse. Wasn't here to see it shot the first time (or the second, or the third, apparently!)

[Jesurgislac]

And some seem to have an astonishing resistance to actually reading the law.

Where does the law say that the brother of one of the candidates can make sure a full count doesn't happen if it looks like a full count means his brother loses? Please, cite me the legislative details of this Jeblaw...

And an astonishing resistance to seeing an objective machine count as ANY count at all (not just a less than perfect count).

The gold standard for counting votes is a hand count examining each ballot, with representatives of each party observing to see fair play. That's how it's done in democracies where it's considered important that the candidate who gets the most votes is the one declared the winner, rather than the candidate whose brother's the governor of that state.

A machine count is fine for a first pass. If it's clear that there's no overwhelming majority - when tens of thousands of votes were uncountable by the machines, and the winning margin on the machine count was a few hundred - then you have to move to a more accurate hand count to find out who actually is the winner. The Republicans resisted this mightily, and Posner's argument that it's perfectly fair to quit while you're ahead rather than count every vote and risk losing, makes perfect sense there.

But in the strict democratic sense of the candidate whom most people voted for being the winner, Al Gore won Florida, and thereby the Presidential election, in 2000.

Unfortunately...

[Anarch]

Sadly, my attempt was unsuccessful...

[Porcupine_Pal]

Thank you for this excellent post, Publius.

The Rule Of Law seems to be a point of departure for political discourse in the US. Most of us simply don't appreciate how crucial it is to our system of government.

I have been astonished at the general unconcern for torture, rendition, suspension of habeas corpus, unreasonable searches and siezures, the casual abrogation of treaties. Upon reflection, I think this is due to our pretty good record in the US for adherence to the Rule Of Law.

Like our laws or not, we have in this country lived by the rules and not by fiat, for a long time. We have become so used to it, that most Americans could probably not express it in words. The Rule Of Law has been as ubiquitous as air, something that we assume without being aware of it.

If only Americans could face the issue directly: are we a nation of laws, or a nation of 'men'. That we could face this issue at a time when we could still do something about it!

[jim filyaw]

i've been watching this series and i assume that when you mentioned mob violence, you were referring to the scene where the tax collector got tarred and feathered and ridden out on a rail. it was truly a realistic portrayal of a terrible torture. at first, i was horrified, but then the thought occurred. there are two of our highest elected officials for whom i would gladly hold the tar bucket.

[tgirsch]

I, too, believe it's generally better to have an elite judiciary as final arbiter of constitutionality (if, by "elite," one means "immune to the sort of partisan politicking that someone who's constantly running for re-election has to deal with"). The problem is with our method of selecting that judiciary. Requiring a simple majority for confirmation simply isn't good enough. Requiring it from an essentially anti-Democratic body like the Senate is even worse.

This isn't to say that the Senate shouldn't be the people confirming justices; the size of the body and the longer terms of service make them ideal for this job, even if the malapportionment is a very real problem. What we need, instead, is a higher bar.

I've said this before, but if I were Constitutional Emperor for a Day, and had the ability to make one single change to the constitution by fiat, I would require that justices at all levels of the federal judiciary be confirmed not by a simple majority of the Senate, but by a 2/3 supermajority. In this way, you prevent justices from being appointed along party lines, which is Very Bad for everyone who's not unabashedly partisan.

If you have a confirmed appointment that makes one party unconditionally happy, and the other one unconditionally upset, I'd argue that's a bad situation, especially in a country as politically divided as ours has been lately.

(If I get to add a corollary, I'd allow the Senate to remove justices with a 3/4 vote. But I digress.)

[tgirsch]

Also, the title of this post reminds me that I really need to watch Dr. Strangelove -- a movie I'm ashamed to admit I've never seen.

[MNPundit]

Does the Supreme Court have any thing that law to back it up? Andrew Jackson proved it doesn't.

I'm a law student now. It IS all political, we can never go back to it with capitulation. (WMaybe Obama can get us there, but who knows.) There have to be limits and due process so that the people as a whole BELIEVE the system works and don't decide to take matters into their own hands. Aside from my own tendency to fairness and harm preventing (my moral foundation) that's why I support process like habeas etc.

[Gary Farber]

"Also, the title of this post reminds me that I really need to watch Dr. Strangelove -- a movie I'm ashamed to admit I've never seen."

It's one of the best films ever made, IMO. And extremely funny; it should not be a painful experience.

Watch it this week: this is an order. I have spoken.

If you do not, there could be fighting in the War Room. And I fear a Dr. Strangelove-watching gap.

Worst, if you do not, you will begin to sense a strange loss of essence.

[hilzoy]

tgirsch: I am a mild-mannered person. I do not give orders. I say this so that you will understand what it means when I say:

Go. Watch. It. Now.

Trust me: you will not regret it.

[Garth]

Major T. J. "King" Kong: Well, boys, I reckon this is it - nuclear combat toe to toe with the Roosskies.

Now look, boys, I ain't much of a hand at makin' speeches, but I got a pretty fair idea that something doggone important is goin' on back there. And I got a fair idea the kinda personal emotions that some of you fellas may be thinkin'.

Heck, I reckon you wouldn't even be human bein's if you didn't have some pretty strong personal feelin's about nuclear combat. I want you to remember one thing, the folks back home is a-countin' on you and by golly, we ain't about to let 'em down.

I tell you something else, if this thing turns out to be half as important as I figure it just might be, I'd say that you're all in line for some important promotions and personal citations when this thing's over with. That goes for ever' last one of you regardless of your race, color or your creed. Now let's get this thing on the hump - we got some flyin' to do.

[Garth]

any my favorite;

General "Buck" Turgidson: Mr. President, about, uh, 35 minutes ago, General Jack Ripper, the commanding general of, uh, Burpelson Air Force Base, issued an order to the 34 B-52's of his Wing, which were airborne at the time as part of a special exercise we were holding called Operation Drop-Kick.

Now, it appears that the order called for the planes to, uh, attack their targets inside Russia. The, uh, planes are fully armed with nuclear weapons with an average load of, um, 40 megatons each.

Now, the central display of Russia will indicate the position of the planes. The triangles are their primary targets; the squares are their secondary targets. The aircraft will begin penetrating Russian radar cover within, uh, 25 minutes.

President Merkin Muffley: General Turgidson, I find this very difficult to understand. I was under the impression that I was the only one in authority to order the use of nuclear weapons.

General "Buck" Turgidson: That's right, sir, you are the only person authorized to do so. And although I, uh, hate to judge before all the facts are in, it's beginning to look like, uh, General Ripper exceeded his authority.

[bago]

It's more like we need a more formal linguistic framework than the english language. Laws should be like an xsd schema showing what the data and grammar should be for a specific contract or discipline. Judges and juries should exist to deal with edge cases that you can't predict when making a schema. I think it would be great if judges could decide not only between guilty or innocent, but also have a formal mechanism to request a schema update from the legislature. A procedure to formally request a legislative schema update when the schema is becoming obsolete.

Also, there should be massive meta-data recorded for these procedural changes, where reasoning, votes, and precedent can be tracked 1:1 through the entire process so that a litigant can point exactly to the very people responsible for a decision in case of an appeal.

In software, we can find every person responsible for a bug, and the people that signed off on it in test and PM, and use that feedback to adjust best procedures and practices.

Right now we are throwing people in jail because a veterinarian in 1930 said that smoking weed turned him into a bat.

Of course politicians hate accountability, and continue to lie even when there is video evidence contradicting them, so it will be quite a challenge, but so many of these accountability problems have been solved that it's time for an update.

[Brett Bellmore]

I'd quote my favorite exchange from Strangelove, but I'd hate to spoil it. Yes, by all means, go watch it.

[moe99]

How does one reconcile one's belief in the rule of law with the Supreme Court's drop kicking of same in Bush v. Gore? Do we argue that it was just a burp and that the rest of the judicial rulings will be smooth sailing? What about the internment decisions in WW2? Again, simply an aberration? Or the Dred Scott decision? Or the decisions that put an end to Reconstruction? I'd say that our rule of law is better than mob rule, but only 80% of the time. I guess we just have to be satisfied with that and hope for better times in the future.

There was a political science professor at my college who is gone now but he truly was a towering intellectual figure. He was a survivor of the Holocaust and he used to say that law was the thin veneer that held our world together. These days, it seems thinner than ever.

[hilzoy]

Brett: six words:

I do not avoid women, Mandrake...

[OCSteve]

Bago: Laws should be like an xsd schema showing what the data and grammar should be for a specific contract or discipline.

Sorry dude/ette. With that I could have the Supremes dancing at my fingertips…

In software, we can find every person responsible for a bug, and the people that signed off on it in test and PM, and use that feedback to adjust best procedures and practices.

You’re not serious right? This is not meant to be offensive in any way, but I’m guessing you are rather young and new to the field. I can introduce a bug, accidentally or on purpose, get it past all testing and QA, and then blame it on you if it comes to light 20 years from now…

[Jeff]

I'd quote my favorite exchange from Strangelove, but I'd hate to spoil it.

Yeeeeeeeeee-haw!!!!!

[felix culpa]

Yeah Jeff, mine too, only I lacked some of your eees...
And in support of Gary, if your memory works poorly, you may have to watch it more frequently.
It’s clear my essence is in decline; I last saw it less than a year ago and transposed Turgidson and Kong only yesterday.">http://snipurl.com/22sur">yesterday.

[trilobite]

I deny the essence of this conversation.

Moe99, some thoughts on Rule of Law and Bush v. Gore, from a comment of mine on the next thread down:

The Supreme Court is and always has been political. Congress is fighting harder about judicial selections these last 20 years or so than it used to, which has brought the political nature of selections into sharp relief, but Presidents have always packed the Court with their friends, and Justices have always been led to some extent by their prejudices. That's not going to change, no matter what we do.

However, even the Supreme Court has to try to justify its policy decisions in judicial terms, which limits the force of the Justices' prejudices. The more we as a polity commit to rule of law, the less even the Justices will feel comfortable making blatantly bigoted rulings like Bush v. Gore. I hope.

That is why, despite his occasional betrayal of his own principles, I think Scalia has generally been a force for good on the Court. He has articulated and made mainstream a modest, minimalist, mode of textual interpretation. Other judges have to at least confront the text more squarely than they used to bother with, thanks to Scalia. Little though I like the immediate results in many cases, it does tend to put policy issues back where they belong -- in front of the legislature.

And I think it is possible to return to a less-politicized judiciary in the lower courts, which have a lot of power especially given how few cases the Supreme Court accepts cert on these days.

[tgirsch]

Only on the Internet could the suggestion of changing the way justices are confirmed by fiat be completely ignored, while an admission that one has not seen a movie spark shock and dismay. :)

The problem with not seeing Strangelove is, at this point, logistical. I almost never watch movies on DVD, so I don't have a Netflix or Blockbuster membership. Maybe I'll just have to go out and buy the blasted thing.

[hilzoy]

tgirsch: you won't regret it. If you do, I offer a money-back guarantee. ;)

[bc]

In particular, I feared that a Bush-appointed majority would eventually overturn significant portions of the administrative state.

Oh, that it were only true. :(

If another serious terrorist attack came, I shudder to think what the ultra-nationalists would clamor for

Not sure who the ultra-nationalists are (Republicans? Neo-cons? Dick Cheney?), but I would think the hue and cry over Iraq plus the changes in Congress would temper any reaction to another attack. How would you react to an attack with a clear Iranian connection? Syrian? (and I mean clear as in you worry that this is another "yellow cake in Niger" situation, so you look again and again and see irrefutable proof).

Democrats are right to be concerned about what the American people (or that mob) would react to another terrorist attack. For example, as this poll indicates, Republicans still hold a large lead on national defense issues.

[Jesurgislac]

bc: How would you react to an attack with a clear Iranian connection?

How did the US react to an attack with a clear Saudi connection?

Ans.: went off and bombed Afghanistan, then invaded Iraq, then took the US troops out of Saudi Arabia, just as the Saudi terrorist group which organised the attacks on the US wanted.

I really don't get your point. We know that if Bush decides he's going to bomb Iran, the justification for doing so will be made up after the decision. We also know that where a terrorist attack is clearly linked to a specific nation, that link may be ignored, or a placatory response offered, if Bush doesn't want an aggressive response. (And as the Bush oil clan and the Saudi oil clan are close friends, an aggressive response to Saudi over the Saudi-related terrorist attack was unlikely: like two countries making war on each other when the kings are close personal friends.)

September 11 was used as a justification for attacking Afghanistan, then Iraq, not because there was any "clear connection", but because those were the countries the Bush administration wanted to make war on.

How did you react to that, bc, if you feel that a clear connection ought to be followed up?

[Brett Bellmore]

"How did the US react to an attack with a clear Saudi connection?

Ans.: went off and bombed Afghanistan, then invaded Iraq..."

As a matter of history, we also reacted to an attack with a clear Japanese connection, by going to war with Germany. It's not a new phenomenon you're relating.

When the alarm clock went off yesterday morning, I took out the garbage. It wasn't because the garbage can was making the noise, it was because the alarm clock woke me up from my slumber.

[cleek]

As a matter of history, we also reacted to an attack with a clear Japanese connection, by going to war with Germany. I

WTF?

Germany had been attacking our ships, was allied with Japan, and most importantly, they declared war on us, first.

[Brett Bellmore]

Yeah, well, do you want to talk about the idiocy of describing an al Quaeda attack that happens to be conducted by Saudi nationals as having a Saudi connection, and pretending that Afhanistan didn't have any connection, when their government and al Quaeda were basically joined at the hip?

And we were in low level armed conflict with Iraq for years at that point, you may recall. A little matter of a war we never finished, but just put on hold.

At best I could describe Bush's foreign policy as "Criminally incompetent", but I'd like the criticisms to make at least a little sense.

[Jesurgislac]

There were no Afghans - no Taliban - aboard the planes on 9/11, Brett. There is no evidence - never was - that the Taliban were aware that of this al-Qaeda mission, nor that they would have had any means of preventing it had they been aware of it. (Not that I think they would have had any interest in preventing it if they could have: my point is that they couldn't have stopped it if they'd wanted to.)

Like the Northern Alliance, the Taliban originally opposed the Communist government of Afghanistan, with its anti-Islamic policies of education, women's liberation, and land ownership: which led into opposing the Soviet invasion of Afghanistan. Al-Qaeda was formed to help Arab veterans of the war who were then anti-Communist freedom-fighters who had been funded and supported by the US.

Saudi Arabia, as the country in which Mecca and Medina, is a holy country to many devout Muslims. The presence of US military bases was an affront to them. Al-Qaeda opposed those bases, but al-Qaeda were in this expressing what many Saudis and other devout Muslims also felt.

When the US abandoned Afghanistan following the utter collapse of government and the end of the Soviet invasion, the Taliban came to power primarily because there was no other group who could or would: the local warlords were the only authorities, and law in Afghanistan was what each warlord said it was. The Taliban succeeded as much as they did because literally any government is better than none.

That the Taliban then decided their country was going to become pure and Islamic was possibly inevitable, though material assistance would have been better than just turning our backs. But the end result was that many devout Muslims believed they ought to go help the Taliban build a better, purer, more Islamic country in Afghanistan. This was bound to appeal to the kind of Arabs who join al-Qaeda.

The wilds of Afghanistan are a good place to have "secret terrorist training camps" in that they were pretty much unassailable and the government of Afghanistan didn't have the ability to get them out. They were also familiar to al-Qaeda veterans who had fought for Afghanistan in the Soviet wars.

There was still not a hell of a lot of point in bombing Afghanistan, except that the US could.

[Anarch]

Germany had been attacking our ships, was allied with Japan, and most importantly, they declared war on us, first.

Widely considered one of Hitler's greatest mistakes, too; possibly beaten by delaying Barbarossa to reinforce the Italians in the Balkans, possibly not.

[Mind, I don't know whether, according to the precepts of international law at the time, the German wolfpacks were illegal, since they were interdicting supplies to a polity with which they were at war. I suspect they were illegal but that's a tricky, tricky area.]

[tgirsch]

Re: Strangelove, I also wonder if maybe I'm just a bit too young to "get" it. While the cold war was still ongoing when I came of age, I'm a bit too young to have had the whole "duck and cover" experience ingrained into the fiber of my being.

[bago]

CAN is a very pliable word. Just because your managers are idiots who can't use versioning control software and don't do code reviews...

[Hartmut]

The Battle of the Atlantic was really murky as far as legality was concerned and no side saw laws and treaties as something to be honored when inconvenient. Britain used false flags and ordered its ships to ram or otherwise attack U-boats, Germany ignored prize law because it knew that and could not fulfill certain rules in it anyway (even if willing), the US (formally neutral) ran convoy protection for Britain, ordered its ships to inform the British on sightings of German warships and unilaterally declared more or less the whole Atlantic as pseudo-territorial waters in order to justify US ttacks on U-boats (I do not envy British submariners because they were repeatedly attacked by their own side because sub = enemy was seen as given).
The first US warships were sunk by U-boats at night while on convoy duty (=formally fair game) and the Uboat commanders got into trouble for that. The German declaration of war on the US (while stupid) simply clarified the situation legally.
Short version: Germany and the US were factually at war in the Atlantic long before the official declaration and the US role was far from immaculate (that btw probably saved Dönitz' neck at Nuremberg because his defence counsel secured a statement from Nimitz that Germany's war at sea was less dirty than the US's).
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I hope that does not make me look like an apologist for the 3rd Reich
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Sorry for keeping OT