State of Change

An Agenda for Obama on Gaza, Middle East

posted by John Nichols on 01/24/2009 @ 06:43am

President Obama and Secretary of State Clinton have moved quickly, and appropriately, to send some appropriate signals regarding the Gaza crisis in particular and the broader challenge of seeking peace in the Middle East.

After taking a good deal of criticism for failing to engage sufficiently with efforts to ease the simmering Israel-Palestine during the transition period between his election and inauguration, Obama's first call to a foreign leader went to Palestinian Authority President Mahmoud Abbas.

During that call, according to Saeb Erekat, a senior Palestinian negotiator in peace talks with Israel, "Obama reiterated that he and his administration will work in full partnership with President Abbas to achieve peace in the region."

The first-call prioritization was big news in the Middle East, as was the selection of former Senate Majority Leader George Mitchell, who chaired a Middle East peace commission in 2001, to serve as the Obama administration's special envoy to the region.

Mitchell, who is Lebanese American, is well regarded in the Middle East and elsewhere as one of the abler and more even-handed of U.S. negotiators. His selection was widely seen as a signal that Obama and Clinton are serious about the need to solidify the ceasefire in Gaza and repair and renew a broken peace process.

It is in this context that Congressman Dennis Kucinich, the Ohio Democrat who has emerged as the most persistent advocate for bold moves in pursuit of peace and justice in the region, is stepping up his push for a more even-handed approach by the U.S. to Israel and the Palestinians.

In a letter sent late Friday to the president, Kucinich wrote:

The unilateral cease-fire implemented by both Israel and Hamas on January 18 is welcome news. It is, however, not an end to the humanitarian crisis in Gaza nor is it a solution for sustainable peace in the region. Israelis and Palestinians share a mutual future. Therefore the security and freedom of Palestinians and Israelis are intertwined. I urge you to focus U.S. efforts toward achieving peace in the Middle East using a framework rooted in the rule of law and not the rule of arms; through diplomacy and not force, and even-handedness.

Specifically, I urge you to immediately:

1. send humanitarian aid to Gaza to help heal the wounded and repair their civilian infrastructure which is necessary to avoid a disease outbreak;

2. negotiate a permanent cease-fire between Israel and a Palestine unity government;

3. urge an end to the blockade that has been imposed on Gaza;

4. hold both Israel and Hamas to account for violations of international law including the laws of warfare and US laws controlling military aid to foreign countries; and

5. ensure that Special Envoy George Mitchell has the support of diverse advisors.

The previous administration's inaction and lack of even-handedness allowed a humanitarian crisis to engulf the civilian residents of Gaza. The lives of over 1,300 Palestinians have been lost and it is estimated that another 5,000 are severely injured. The population of Gaza is in dire need of the basic necessities including water, food and medical supplies. Hospitals remain at or close to full capacity, while the World Health Organization has reported that 34 health facilities were damaged or destroyed by the shelling. Hospitals' access to electricity is limited to 8 to 18 hours of electricity per day.

Furthermore, twenty-three days of fighting has caused extensive damage in the Gaza Strip. The following has been destroyed:

· 2,400 homes, including 490 homes that were destroyed by air strikes

· 28 public civilian facilities, including buildings of a number of ministries, municipalities, governorates, fishing harbors and the building of the Palestinian Legislative Council

· 21 private projects, including cafeterias, wedding halls, tourist resorts and hotels

· 30 mosques; another 15 have been partially destroyed

· Offices of 10 charitable societies

· 121 industrial and commercial workshops; at least 200 others were damaged

· 5 concrete factories and one juice factory

· 60 police stations

While the exact number of people displaced by the conflict is still unknown, UNRWA continues to shelter approximately 18,000 people, down from a high of more than 51,000.

UNICEF and other aid organizations have expressed deep concern over the need to mark and clear unexploded landmines and other weaponry. The lack of operational security for aid workers cripples their ability to access some areas, thereby limiting delivery of essential aid. The United Nations estimates that this crisis may take more than five years to correct.

The U.S. should join with the international community to provide Gaza with immediate humanitarian aid, to insist on an end to the blockade, to forge an agreement on a lasting cease-fire and insist on adherence to international law. The security and well-being of both Israel and Palestine require that the U.S. take decisive and immediate action to resume our role as an honest broker of peace. I respectfully urge you to consider these rational foreign policy initiatives.

Kucinich is, to be sure, a rare voice in the current Congress. But his message to Obama is an important one, in that it highlights the need to ease the suffering in Gaza as an essential part of any grander pursuit of peace.

For George Mitchell to succeed, he and the administration he serves must recognize that a humanitarian crisis has unfolded and that it must be addressed in order for the broader project to have a chance of succeeding.

Comments (213)

  1. I wish that I could be more optimistic. What I expect, though, is for Obama to give some lip service to Palestinians' concerns, but then cave in to Israel on all the important points. I'd really love to be proven wrong. Michael Cerkowski

    Posted by mabel33 at 01/24/2009 @ 07:30am

  2. Now that Obama is in office the solution is simple and clear- he knows like no other before him what to do.

    Posted by robster at 01/24/2009 @ 08:09am

  3. who was the american pres. in whose watch peace was achieved between Israel and Egypt, the most powerful arab nation? it's a rhetorical question.

    Posted by emile duBois at 01/24/2009 @ 09:19am

  4. Yes, between 2 existing nations with wins of history behind them it a might easier to manage a settlement. Jordan too...

    However, the one obvious missing component is the issue ofcintinuious, endless, daily rocket fire into Israel. Kookchinich mentions the legal "issues" of US arms and Israel but no mention of what will pour into Gaza.....

    Legal arms? From Iran? Longer range with heavier payloads and more accuracy and more Israeli deaths?

    To balance out the "totals and counts"?

    All the liberals in the west does is blame Israel for defending itself especialy when it does so efficiencly. But remains tombstone quiet as to the rocketsattack that provoke the retaliation in the first place.

    The cycle with start again, the rockets will contine with more accuracy and power, Israel will retaliate will even stronger response(unless libs cut her off)...

    To win this one side must win decisivly and be recognized by all that one side lost. Anything else will just escalate the cycle into bigger weapons.

    And no peace. Hamas doesn't want peace but vicytory and are counting in world line togove it to them.

    Posted by YourJomamma at 01/24/2009 @ 11:03am

  5. I can't think of anyone who believes the key to peace in the Mideast is.......Jimmy Carter.

    He is the epitomy of a political failure and a practical void. He would make a great neighbor... He should find a nice place to relax and be a great neighbor to someone.... Might I suggest... ALGORE. A perfect odd couple and Al has plenty of room, cash,energy,and free airplane rides in and out of his power consuming mansions.

    Posted by YourJomamma at 01/24/2009 @ 11:13am

  6. Carter has left a legacy of peace in the mid east. not even Maasch can take that away from him. that is history.

    Posted by emile duBois at 01/24/2009 @ 11:38am

  7. >>>3. urge an end to the blockade that has been imposed on Gaza;

    4. hold both Israel and Hamas to account for violations of international law including the laws of warfare and US laws controlling military aid to foreign countries;<<<

    AIPAC is going to squash these two points, DENNIS KUCINICH, and you know it!

    Nonetheless, I am encouraged by Mitchell's appointment. It signals a new serious approach to finally ending the conflict there, so let us all support him in those efforts.

    Posted by Metteyya at 01/24/2009 @ 11:41am

  8. There will be no peace in the Middle East until the US & Israel decide to stop the persistent, deliberate, unlawful and immoral destruction of Palestinian homes and farms, the concomitant building of Israeli settlements on these lands, the building of hundreds of roadblocks, etc. all of which has been going on for 40 years and in defiance of many UN resolutions. All this present concern (rightful)of the recent bombings and incursion into Gaza is only a minor example of Israel's long term decision to take over as much Palestinian land as possible to expand the Jewish state, and all with the help and assistance of billions of US taxpayer dollars per year to build up it's military complex. Obama's administration has a formidable task in front of them to overcome the very powerful Jewish lobby in this country, AIPAC. Until they are able to stand up to AIPAC, you can forget about any substantial change to US/Israel/Palestine policy.

    Posted by tikiisle at 01/24/2009 @ 12:05pm

  9. It is absolutely absurd to suggest that President Obama is sending any good signals on the Israel-Palestine issue. He has refused to engage with Hamas, and has chosen instead to engage with Abbas and Fatah, who are increasingly loathed yet more by the Palestinian people and who are regarded as quislings, and who are not the elected majority in the Palestinian Authority. Imagine if Pakistan continued today to engage only with George Bush and Dick Cheney, and would not recognize as legitimate the Obama government. Hillary Clinton has enunciated the exact policy towards Israel and the Palestinians as did George Bush and Condoleeza Rice. George Mitchell is seen by many as yet another Zionist Israel-booster.

    The signs are all bad for "change".

    There is no daylight between the Obama government and Israel. This is the core issue. The Israelis just engaged in a nakedly savage three-week bacchanalia of war crimes and crimes against humanity, and the Obama government has acted as if this was perfectly acceptable. While the current crop of American leadership again attempts to side with the portion of the Palestinian Authority that has no respect amongst Palestinians and is the legitimately elected minority party, while shunning Hamas, and protecting Israel's every worst atrocity, the next intifada is brewing.

    Posted by syfriendly at 01/24/2009 @ 12:07pm

  10. It is foolish to believe that there is hope for near-term peace between the Palestinians and Israel, anyway, because the Israelis just got through slaughtering over 1360 Palestinians, and wounding several thousand, and destroying the ghetto that the Israelis have confined the Palestinians in Gaza within, and continuing an economic blockade of Gaza. The Palestinians are inevitably going to respond to this with a counter-attack, the most angry and vicious they can muster, in the coming months. Any hope for a return to any "peace process" in the region is years away now.

    Furthermore, the Palestinians will not wish to negotiate with the evil and despicable Tzipi Livni, who will be Israel's next head of state. They will remember how, as the bombs rained down on the masses of Gaza, she stood in front of reporters' cameras and declared "There is no humanitarian crisis in Gaza." The Palestinians will hate this woman with all their hearts and minds and will never want to negotiate with her. She is the next Ariel Sharon.

    Posted by syfriendly at 01/24/2009 @ 12:12pm

  11. To understand who the Israelis are, and what Israelis bring, look at this slideshow of the ruins of the UN Relief Works Agency HQ in Gaza: http://www.huffingtonpost.com/rebecca- shapiro/war-crimes-accusations-mo_b_160441.html

    Posted by syfriendly at 01/24/2009 @ 12:15pm

  12. Carter has left a legacy of peace in the mid east. not even Maasch can take that away from him. that is history.

    Posted by emile duBois at 01/24/2009 @ 11:38am

    He has that history, which if you HONESTLY ypou at the facts on the ground.....

    Egypt was defeated and broke..Israel wanted to close a war front down...and the deal was made by..

    the US TREASURY...ie...

    ....the tax payers...funny how the US taxpayer solves so many of the problems in the world and is the most abused creature..especially at home by the left......

    and it occured with Jimma at the con...so be it...

    another truth..

    if US Money dries up to Egypt..

    or

    Mubarack loses power, radical Islamo facsists take Egypt..the deal will evaporate with a new Jihad against Israel...and the US will be in it...

    someone needs to win it..

    Posted by YourJomamma at 01/24/2009 @ 12:22pm

  13. Posted by syfriendly at 01/24/2009 @ 12:15pm | ignore this person | warn this person

    you seem no more desirous of peace than those israelis you demonize, nor their unflappable supporters.

    any real peace process must cease re-hashing the ugly hatfield/mccoy history, which only serves to inflame both sides (and understandably, i would say). it must stick with concrete proposals and initiatives that concentrate ob how things WILL be in a peaceful, prosperous, live/let live vision of the future.

    i think oil rich arab/muslim states have a critical role to play in the process and need to be engaged as well as the united nations.

    no drama obama just might be the american president who CAN accomplish this task of hercules, which holds the potential to lower tensions throughout the ME.

    Posted by ibbleblibble at 01/24/2009 @ 12:42pm

  14. This reminds me of those who tout FDR or LBJ...for their "legacies" of the New Deal or Great Society.....them New Deals have turned into Monster Liabilities and Fatherless Society!!

    Posted by HAPPYLonghorn at 01/24/2009 @ 12:53pm | ignore this person | warn this person

    as a progressive conservative i indeed hope that the next great society or new deal or whatever you want to call it, includes an effort to encourage, by legal means, if needed, individual responsibility, including efforts to reform an economy that relies on low rates of savings, insane individual beyond-means spending, waste, and piraticy.

    i want to see a system where some of the profits of indudtry are re-invested in a social security net that encourages and fosters such, that establishes a level of security that discourages social instability so that sustainable growth is achieved.

    satanic aynrandian capitalism is at least as surefire a road to civilizational collapse as poorly thought out socialism...

    Posted by ibbleblibble at 01/24/2009 @ 1:17pm

  15. piraticy.

    piracy...

    lol...piraticy? way too much fun last night!

    Posted by ibbleblibble at 01/24/2009 @ 1:19pm

  16. Boy, it just goes on and on, huh?

    Hard Right say 'Obama naive to think he can deal with the Palestinians, they are evil and only care about destroying Israel!' (JOMAASCH)

    Hard Left say 'Obama in bed with Israel, they are evil and only care about destroying Palestin!' (syfriendly)

    And BOTH say "I'm not at all optimistic about how things can improve!"

    Same coin, two sides.

    Posted by Mask at 01/24/2009 @ 1:31pm

  17. Same coin, two sides.

    Posted by Mask at 01/24/2009 @ 1:31pm | ignore this person | warn this person

    hopefully obama can manage to ignore the harping of both sides.

    Posted by ibbleblibble at 01/24/2009 @ 1:34pm

  18. Posted by ibbleblibble at 01/24/2009 @ 1:34pm

    I think so. Neither are rational or fair. Both see the other side as "ultimate evil" and unless they are "crushed" and dragged to the bargaining table in chains, "they can't be trusted".

    Unfortunately for too long, both have been running the show...MAASCH's side in the White House for the past 8 years, syfriendly's side in Gaza for several.

    Posted by Mask at 01/24/2009 @ 1:44pm

  19. Posted by Mask at 01/24/2009 @ 1:44pm | ignore this person | warn this person

    yet another of the many herculean "tasks of obama".

    if he accomplishes even half of them i'll feel vindicated in my faith in the man.

    Posted by ibbleblibble at 01/24/2009 @ 1:49pm

  20. Kucinich is a good man. But he is overshadowed by a world of conflicting and often evil incentives.

    And I'm just referring to the world of our Congress.

    Posted by freiheit1 at 01/24/2009 @ 2:04pm

  21. Posted by Mask at 01/24/2009 @ 1:44pm | ignore this person | warn this person

    You really are absolutely worthless, aren't you?

    You can't even get your mischaracterizations straight, you stupid idiot. Gaza has not been run by Hamas by eight years, as is your (idiotic and banal) implication.

    Mask, you really need to learn something, any tiny thing, about these issues, before you open your stupid, worthless mouth and babble. That is all you do, hour after hour on this web site, is babble mindlessly.

    You've never said anything that could lead anyone to understand that you have any information about these issues, any issue you babble about, whatsoever. You seem to only exist to provoke angry responses to your idiotic little jabs at other people, so that you can get desperately needed attention. How many years have you been posting over and over on every single web log entry on The Nation's web site, Mask? How pathetic is that?

    Posted by syfriendly at 01/24/2009 @ 2:08pm

  22. Posted by syfriendly at 01/24/2009 @ 2:08pm | ignore this person | warn this person

    your handle is obviously ironic. you are smooth.

    Posted by emile duBois at 01/24/2009 @ 2:19pm

  23. Posted by syfriendly at 01/24/2009 @ 2:08pm | ignore this person | warn this person

    i do think we should talk to hamas, but they are still in my opinion barbaric fundamentalists and despicable people.

    but if they agree to stop lobbing rockets at israel and harboring anti israeli jihadists, fine.

    perhaps gaza, with support and guidance of level heads in the international community, including local, arab actors, could become a "singapore of the middle east", a modern city state seperate from the west bank and no longer a problem.

    but they need to cease lobbing rockets into israel and harboring violent fanatic jihadists.

    Posted by ibbleblibble at 01/24/2009 @ 2:22pm

  24. >> Kucinich is, to be sure, a rare voice <<

    More than rare. Outside of the Left, among sensible people familiar with the facts, Dennis blaming the US for Hams' firing of rockets into Israel, is not rare but well done with scrambled eggs and maple syrup oozing from the ears and nose.

    His letter advocates "the rule of law and not the rule of arms". It wants even handedness between Israel and Hamas and holds both, equally to account. Nichols agrees.

    Nowhere do we hear that Hamas is a terror organization that took up firing rockets into peaceful Israeli villages after the security wall made blowing up crowded buses, restaurants and dance halls too difficult.That Hamas refuses to respect previous Palestinian agreements with Israel doesn't matter to N/K, or that its raison d'etre is war until Israel is obliterated. Such considerations have no place in their message.

    Their message is to equate Israel and Hamas, albeit with a subtext that makes Israel the uglier, more aggressive and more brutal of the two.

    Such is the moral compass of Nichols and what The Nation considers fair argument and journalism. And Victor Navasky now heads the Columbia Journalism Review, the profession's standard setter.

    Posted by Hugo_Pirovano at 01/24/2009 @ 2:22pm

  25. Posted by Hugo_Pirovano at 01/24/2009 @ 2:22pm

    HUGO,

    If you want the AIPAC line of vilifying "democratically elected" Hamas and extolling Israel's right to "defend itself" by killing hundreds of women and children in Gaza, go read the NYT or some other mainstream media source.

    America hears that nonsense all of the time, and it is refreshing that other points of view are considered here.

    Obama is reaching out to the PLO, he has appointed a Lebanese American with serious diplomatic skills to the case....the only thing left is to acknowledge that democratically elected Hamas represents the majority of the Palestinians and most of the land in Palestine and therefore needs to have a seat at the table if the conflict is to be finally resolved.

    Posted by Metteyya at 01/24/2009 @ 2:42pm

  26. Fat chance of this plan ever being implemented, what with AIPAC Stephin Fetchit, Obama, the one having his strings pulled. A very, very, ominous appointment for envoy for Iran is Richard Holbroke, a neo-con's neo-con. You might as well have have named Bill Kristol. Mitchell has more credibility but no real independence. He is every bit the AIPAC captive as is his boss, Clinton. Peace in the Middle East is out of the question without conditionless recognition of Hamas, the elected government of the Palestinian people. And strictures on Iran's nuclear capabilities out of the question until Israel admits to and permits UN inspection of it own nuclear program with concommitant destruction of atomic weapons should they be uncovered. Anything short of this kind of balance is simply unjust. Looking for peace and an end to terror? The provision of balance and fairness is the only way to it.

    Posted by john lowell at 01/24/2009 @ 2:59pm

  27. John, whom would you have chosen for these posts?

    Posted by emile duBois at 01/24/2009 @ 3:13pm

  28. you seem to find Obama wanting. who was your choice for pres?

    Posted by emile duBois at 01/24/2009 @ 3:23pm

  29. MAASCH's side in the White House for the past 8 years, syfriendly's side in Gaza for several.

    Posted by Mask at 01/24/2009 @ 1:44pm

    My side has never entered the WH since Reagan left...

    Posted by YourJomamma at 01/24/2009 @ 4:00pm

  30. even as a tourist...except me, of course.

    Posted by YourJomamma at 01/24/2009 @ 4:29pm

  31. My side has never entered the WH since Reagan left...

    Posted by YourJomamma at 01/24/2009 @ 4:00pm | ignore this person | warn this person

    so you are ok with the way the deficit increased over those years?

    ;)

    Posted by ibbleblibble at 01/24/2009 @ 4:41pm

  32. but chooses either NOT TO or just don't know proper English....in either case, the real McCoy of INEPTNESS!

    Posted by HAPPYLonghorn at 01/24/2009 @ 12:48pm

    grammatical karma strikes again!

    take a good look at YOUR english ineptness, mr longhorn.

    Posted by frosty zoom at 01/24/2009 @ 4:53pm

  33. Nope,

    Read my last 6 years posts on Bush, repub firings and my last post above

    Posted by YourJomamma at 01/24/2009 @ 4:53pm

  34. lol.

    Posted by frosty zoom at 01/24/2009 @ 4:53pm

  35. but if they agree to stop lobbing rockets at israel

    Posted by ibbleblibble at 01/24/2009 @ 2:22pm

    uh, actually they did.

    Posted by frosty zoom at 01/24/2009 @ 4:54pm

  36. someone needs to win it.. Posted by YourJomamma at 01/24/2009 @ 12:22pm

    nope.

    we all need to calm down.

    Posted by frosty zoom at 01/24/2009 @ 4:55pm

  37. no drama obama just might be the american president who CAN accomplish this task of hercules, which holds the potential to lower tensions throughout the ME.

    Posted by ibbleblibble at 01/24/2009 @ 12:42pm

    jack bauer could retire....

    Posted by frosty zoom at 01/24/2009 @ 4:56pm

  38. Monster Liabilities

    Posted by HAPPYLonghorn at 01/24/2009 @ 12:53pm

    actually,

    those liabilites are funded.

    st. ronnie doubled the debt.

    so did wush.

    Posted by frosty zoom at 01/24/2009 @ 4:57pm

  39. HAPPY: Why should we? HAMAS is not only NOT an ally of the US, it is downright an enemy of what we want in the ME.

    Posted by HAPPYLonghorn at 01/24/2009 @ 1:05pm

    what does hamas have to do with oil?

    Posted by frosty zoom at 01/24/2009 @ 4:59pm

  40. Kucinich is a good man.

    Posted by freiheit1 at 01/24/2009 @ 2:04pm

    he'd make a great canadian pm.

    Posted by frosty zoom at 01/24/2009 @ 5:00pm

  41. i do think we should talk to hamas, but they are still in my opinion barbaric fundamentalists and despicable people.

    Posted by ibbleblibble at 01/24/2009 @ 2:22pm

    lots of those to go around.

    right, willie pete?

    Posted by frosty zoom at 01/24/2009 @ 5:03pm

  42. My side has never entered the WH since Reagan left... Posted by YourJomamma at 01/24/2009 @ 4:00pm

    st. ronnie DOUBLED u.s. national debt.

    hooray!

    Posted by frosty zoom at 01/24/2009 @ 5:05pm

  43. uh, actually they did.

    Posted by frosty zoom at 01/24/2009 @ 4:54pm | ignore this person | warn this person

    when, before or after the invasion? and if before, then why did the rockets keep coming?

    ------------------------------------

    Posted by frosty zoom at 01/24/2009 @ 5:03pm | ignore this person | warn this person

    oh yeah

    Posted by ibbleblibble at 01/24/2009 @ 5:23pm

  44. when, before or after the invasion? and if before, then why did the rockets keep coming? ------------------------------------

    Posted by ibbleblibble at 01/24/2009 @ 5:23pm

    actually, (and don't ask me to look for the news source -- you do it, i'm tired)

    there were four rockets fired during the ceasefire, none by hamas.

    AND

    72% of palestinians and 51% of israelis polled in december were in favour of extending the ceasefire.

    Posted by frosty zoom at 01/24/2009 @ 5:27pm

  45. Posted by frosty zoom at 01/24/2009 @ 5:27pm | ignore this person | warn this person

    you mean the current ceasefire?

    i'm sure most around the world favor extending the ceasefire.

    Posted by ibbleblibble at 01/24/2009 @ 5:32pm

  46. no.

    the previous, pre-slaughter ceasefire.

    Posted by frosty zoom at 01/24/2009 @ 5:43pm

  47. personal responsibility???!?!?

    from a country with $80,000,000,000,000 in debt?

    hahahahaha.

    Posted by frosty zoom at 01/24/2009 @ 5:44pm

  48. Now, with the `Stimulus' Bill, and the TARP, how much "personal responsibility" messaging is being delivered?

    Posted by HAPPYLonghorn at 01/24/2009 @ 5:24pm | ignore this person | warn this person

    thats a great question, but what will happen if millions of people become homeless and desperate?

    what will they do? where will they go?

    who will they blame?

    themselves?

    our economy has been gigantic greed driven ponzi scheme for a long time, and the responsibility for this is spread from top to bottom.

    the current programs are stopgap and imperfect, but lets ALL hope they stem the flood long enough to build some real dikes.

    honestly, HAP, not sure here how we will get ourselves out of this pickle, but doing nothing will result in uglines even more ugly than that which awaits us under the best of circumstances.

    and when slimy thieves like that thain guy walk off shitting big bonus tiffany cufflinks and thinking they DESERVE what they scammed...

    well, if things get as bad as they might, those bastards better spend an ass of their ill gotten millions on some serious security. some homeless desperados with nothing to lose might get some crazy ideas...

    a progressive conservative worries about this kind of crazy shit, even when it appears far away, and figures a little western european style "socialism" is the best way to avert revolutionalry style socialism. even better than inventing foriegn enemies and brainwashing gullible idiots until the rug gets jerked out from under them.

    lets cease with this gubbament bad stuff. gubbament bad when run by bad, good when run by good. big gubbament good whhen the shit hits the fan, bad when times are good.

    i believe in a gubbament that grows and shrinks as needed.

    Posted by ibbleblibble at 01/24/2009 @ 6:02pm

  49. Posted by syfriendly at 01/24/2009 @ 2:08pm

    I realize froth at the mouth might possibly interfere with your vision...but I didn't say Hamas had controlled Gaza for eight years...I said "several".

    And given you are an admitted bigot agaisnt Israelis (not just the Israeli government)....again, you are merely the mirror image of the Hard Right...and thus a contingent that Obama or ANYBODY really interested in peace...

    should ignore.

    Posted by Mask at 01/24/2009 @ 6:04pm

  50. Three steps to end the Israeli occupation of Palestinian territories:

    1. Suspend the ten of billions of dollars we give Israel annually unless it pulls out of all land it occupied in the 1967 war and begins to adhere to International Law.

    2. Change the tax prevision in the US which grants tax deduction status to individuals sending money to Israel; specifically money used to build illegal Jewish settlements on the occupied territories.

    3. Obama should order the Israeli leadership to pull out of the occupied territories or else. This worked well when President Eisenhower ordered Ben-Gurion to pull out his forces when the Israelis occupied the Sinai in 1956, Ben-Gurion pulled out in 48 hours. President Eisenhower took one more step; he ordered the White House Gate Chained when the Israeli lobbyists stormed toward the White House in drove to protest his move.

    4. Make any future aid to Israel contingent on Israel entering serious and prompt negotiations with its Arab neighbors. George H. Bush tried this with Yitzhak Shamir when he suspended the 10 billions of US loan guarantees to Israel unless Shamir negotiated Peace seriously in Madrid. This action cost George Bush the re-election to a second term, but at least he placed America's interest first.

    Now, let's see the Israeli-Firsters jump up and down shouting their usual Anti-Semitism cry.

    Posted by CripThink at 01/24/2009 @ 6:09pm

  51. Posted by frosty zoom at 01/24/2009 @ 5:43pm | ignore this person | warn this person

    frosty, i'm looking at stories of gaza rockets slamming intermittantly into southern israel for at least a year prior to israel's invasion.

    i think "4" is a bit too low an estimation...

    Posted by ibbleblibble at 01/24/2009 @ 6:11pm

  52. Carter has left a legacy of peace in the mid east. not even Maasch can take that away from him. that is history.

    Posted by emile duBois at 01/24/2009 @ 11:38am | ignore this person | warn this person

    Yea, he gave us Iran ruled by Aytollah Khomeni and all the proceeding Mullahs with fanatic figurehead mouthpieces as its President!

    Iran is now a country that is busy supporting Islamic Terrorists worldwide making nuclear deals with Pakistan and supported by communist chinese arms and rockets used by Hezbollah and Hamas daily on Israel!

    He took credit for an Israel and so called Palestinian agreement that he really had nothing to input in!

    Now he is recognized as a real anti-semitic and pro-arab terrorism sourse!

    That is what his peace making looks like!

    Posted by comancheamerican at 01/24/2009 @ 6:21pm

  53. it takes no rocket scientist to understand why we are where we are now, economically.

    the kind of economic growth we of all economic classes have come to expect was unnatural, largely based on the paradigm of a post world where we were the only powerful market democracy left and had suffered from a crippling depression less than two decades prior.

    in order to sustain such impossible growth absurd lines of credit were extended to millions while the profits of the shell game were pocketed and hoarded by a very few.

    at some point something had to snap. we can parse the individual aspects all we want. the housing thing is simply one great big aspect of the overall phenomenon.

    Posted by ibbleblibble at 01/24/2009 @ 6:27pm

  54. Did you know that Japan and England, along w/many others, have far, far higher per capita national debt than evil Americans?

    Posted by HAPPYLonghorn at 01/24/2009 @ 6:04pm

    so? england is about to default.

    and that number is pre-obama.

    it's for that reason mr. obama needs to borrow more.

    once you hit that pipe, you gotta keep comin' back.

    how much do YOU owe, mr. rich guy?

    Posted by frosty zoom at 01/24/2009 @ 6:27pm

  55. and why do you call americans "evil".

    such hyperbole.

    Posted by frosty zoom at 01/24/2009 @ 6:28pm

  56. This action cost George Bush the re-election to a second term, but at least he placed America's interest first.

    Posted by CripThink at 01/24/2009 @ 6:09pm

    great ideas. however, i think reagan's recession may have helped mr. clinton's fortunes more than mr. bush's stand against the israeli government.

    Posted by frosty zoom at 01/24/2009 @ 6:31pm

  57. i think "4" is a bit too low an estimation...

    Posted by ibbleblibble at 01/24/2009 @ 6:11pm

    whatever.

    you need to read dr. cole.

    Posted by frosty zoom at 01/24/2009 @ 6:32pm

  58. Yea, he gave us Iran ruled by Aytollah Khomeni and all the proceeding Mullahs with fanatic figurehead mouthpieces as its President! Iran is now a country that is busy supporting Islamic Terrorists worldwide making nuclear deals with Pakistan and supported by communist chinese arms and rockets used by Hezbollah and Hamas daily on Israel! He took credit for an Israel and so called Palestinian agreement that he really had nothing to input in! Now he is recognized as a real anti-semitic and pro-arab terrorism sourse! That is what his peace making looks like!

    Posted by comancheamerican at 01/24/2009 @ 6:21pm

    too much nonsense for one human to produce.

    alas.....

    ever heard of operation ajax?

    who funds the chinese?

    who's actions gave rise to hezbollah?

    p.s. if y'all had listened to mr. carter way back when, the u.s. might still have an auto industry.

    PLUS, YOUR ST. RONNIE WAS TEHRAN'S BEST FRIEND.

    Posted by frosty zoom at 01/24/2009 @ 6:35pm

  59. at some point something had to snap. we can parse the individual aspects all we want. the housing thing is simply one great big aspect of the overall phenomenon. Posted by ibbleblibble at 01/24/2009 @ 6:27pm

    at this point it is prudent to compare global debt to global temperature rise.

    we must end fiat money.

    if that slows growth, at least we'll still have somewhere to live.

    Posted by frosty zoom at 01/24/2009 @ 6:36pm

  60. you need to read dr. cole.

    Posted by frosty zoom at 01/24/2009 @ 6:32pm | ignore this person | warn this person

    what? juan cole? huh?

    Posted by ibbleblibble at 01/24/2009 @ 6:39pm

  61. Al-Sharq al-Awsat reports in Arabic that Shaikh Najih Ibrahim, the leader of the fundamentalist group al-Gama'a al-Islamiya in Egypt, said Friday that his organization fears that al-Qaeda will launch an attack on the United States shortly, in revenge for Israel's assault on Gaza, with the aim of turning Barack Obama into "another George W. Bush."

    Ibrahim's group called on al-Qaeda instead to observe a 4-month ceasefire toward the United States, so as to give Obama a chance to show he is really different.

    <<<<>>>>

    THANKS, "ISRAEL"!

    Posted by frosty zoom at 01/24/2009 @ 6:42pm

  62. About Dennis Kucinich:

    freiheit1 says "Kucinich is a good man."

    But Hugo_Pirovano describes him this way " More than rare. Outside of the Left, among sensible people familiar with the facts, Dennis blaming the US for Hams' firing of rockets into Israel, is not rare but well done with scrambled eggs and maple syrup oozing from the ears and nose. "

    However, Frosty Zoom says " he'd make a great canadian pm. "

    I think Hugo' description is the most accurate and appropriate.

    It must have been what appealed to Frosty Zoom.

    Frosty, you may want to consult other descriptions of Mr. Kucinich - such as below - I doubt you really want what you are asking for!

    ====================

    In the book Best and Worst of the Big-City Leaders, 1820–1993, Melvin G. Holli, in consultation with a panel of experts, placed Kucinich among the ten worst big-city mayors of all time for reasons of temperament and performance http://en.wikipedia.org/ wiki/Dennis_Kucinich

    Posted by sjchermak at 01/24/2009 @ 6:46pm

  63. "Unlike the obsequious US press, Britain's Channel 4 is capable of challenging the propaganda that Hamas was intensively bombarding Israel with rockets during the 2008 ceasefire.

    The anchor was given a report by the Israeli government that showed that Hamas did not in fact send rockets on Israel in that period.

    Only 20 rockets were fired from Gaza between June and December of 2008, and they were fired by organizations other than Hamas. No Israelis were killed in that period by these little home made projectiles."

    20.........

    Posted by frosty zoom at 01/24/2009 @ 6:47pm

  64. sjchumhack:

    you despairingly call me a "pacifist".

    egad! such horrors.

    simple questions:

    do you want to kill people? do you know people who want to kill people?

    i thought not (fingers crossed).

    well, guess what. that's how people are all over this planet, regardless of what crazy book they read.

    people just wanna watch t.v......

    Posted by frosty zoom at 01/24/2009 @ 6:50pm

  65. CripThink

    About your recommendations, here is what should happen.

    1. No

    2. No

    3. If Obama suggests that, the Israeli leadership should tell him to go fly a kite!

    4. No - Israel has already been serious about negotiations over the years - look what it has gotten them - Hamas rockets fired into Israel by people who want no Israel, and have always wanted no Israel, and have no intention of giving up that dream in negotiations.

    Posted by sjchermak at 01/24/2009 @ 6:51pm

  66. happy,

    perhaps sound monetary policy would do a much better job of keeping jobs here.

    deport greenspun and bernancle!

    Posted by frosty zoom at 01/24/2009 @ 6:52pm

  67. sjch,

    you are just as evil as those you accuse.

    you are just as much a problem as they.

    you are nuts.

    Posted by frosty zoom at 01/24/2009 @ 6:55pm

  68. Frosty,

    You ask "do you know people who want to kill people? "

    Yes. I don't personally know them, but Hamas likes to kill people. So I do know about people who want to kill people.

    Posted by sjchermak at 01/24/2009 @ 6:56pm

  69. st. ronnie DOUBLED u.s. national debt.

    hooray!

    Posted by frosty zoom at 01/24/2009 @ 5:05pm

    Ask us next year what the increase rate ia on the debt when Obams the Most Merciful is finished....make even Bush look like a Piker...

    and Reagan also doubled tax revenues to the treasury...too, bad congress more than doubled the spending...wonder what would have happend in Tip O'Neal saved some of those revenues..or if large earred one from Washington would not have spent the money faster than Reagan brought it in...we might never had th repubs in Congress...except for $40,000 change returned on 35 cents worth of stamps purchaces at house post office...

    FZ, If you are going to recite the past to everyone asd if you have googled a revelation of importance ,...try not to cherry pick it...it appears you were not even part of the economic equation at that time... nor does it appeear you are you now?

    Posted by YourJomamma at 01/24/2009 @ 7:00pm

  70. poor, poor sjch.

    life must be so grey........

    Posted by frosty zoom at 01/24/2009 @ 7:01pm

  71. ooh,

    john's pissed.

    i dissed st. ronnie, the iranianpal.

    Posted by frosty zoom at 01/24/2009 @ 7:02pm

  72. remember john -- by your reasoning jesus doesn't rate.

    Posted by frosty zoom at 01/24/2009 @ 7:03pm

  73. i dissed st. ronnie, saddam's lackey.

    Posted by frosty zoom at 01/24/2009 @ 7:05pm

  74. SQUISH THE TOWELHEADS!

    Posted by frosty zoom at 01/24/2009 @ 7:06pm

  75. $80,000,000,000,000

    how much do YOU owe, john?

    Posted by frosty zoom at 01/24/2009 @ 7:07pm

  76. Hamas does not recognize Fatah and Abbas cannot enter Gaza, because of the Hamas threat to kill him should he or his ministers step foot in Gaza.

    Posted by lvliberty1 at 01/24/2009 @ 7:54pm

    Sounds like a great place to want to be...

    I say..

    ..give them rockets and cash!!

    They are indeed a peaceful group for sure...especially to their own people!!

    I can only imagine how peaceful they would be to their Israel neighbors, er, enemies..

    Posted by YourJomamma at 01/24/2009 @ 8:39pm

  77. remember john -- by your reasoning jesus doesn't rate.

    Posted by frosty zoom at 01/24/2009 @ 7:03pm

    Jesus had a purpose...and didn't offer solutions that he was not part of or at least in the equation...

    Posted by YourJomamma at 01/24/2009 @ 8:57pm

  78. But He would have given you free health care...

    Posted by YourJomamma at 01/24/2009 @ 8:58pm

  79. And He never offered solutions that cost Him...nothing...while others paid.

    Posted by YourJomamma at 01/24/2009 @ 9:05pm

  80. Same coin, two sides. Posted by Mask at 01/24/2009 @ 1:31pm

    and a slug, to boot

    Posted by A_Pax_On_Your_Houses at 01/24/2009 @ 10:06pm

  81. If Obama suggests that, the Israeli leadership should tell him to go fly a kite! Posted by sjchermak at 01/24/2009 @ 6:51pm

    sjshermak,

    Telling the President of the United States to fly a kite is a tall order, it is like slapping the hand that feeds you. What is wrong about relinquishing the occupied territories for the sake of peace? Are you telling us that the Israelis still insist on the Greater Israel vision and want to keep all the Jewish settlements in the West Bank? Why blaming Hamas then for not recognizing Israel? Mahmud Abbas has been negotiating with Israel since 1993; all what he got in return are more settlements, more confiscation of Palestinian land and more check points in the occupied territories. The Ex Israeli Prime Minister, the Stern Gang Terrorist Yitzhak Shamir, used to say that he did not mind negotiating with the Arabs, so long as negotiations never end.

    One day Americans will get tired carrying the Racist Star of David on their backs and will ask Israel to go fly a kite. This will mean that Israel will lose its sole defender and that Israel will be rejected as an Apartheid entity in the same manner racist South Africa was rejected.

    Posted by CripThink at 01/24/2009 @ 10:21pm

  82. CripThink at 6:09pm wrote:

    >> Suspend the ten of billions of dollars we give Israel annually<<

    You're the fellow who also claims Israel only withdrew from 75% of Gaza, that she retained 25% as a border strip. That is of course nonsense and part of your indifference to the truth. The Philadelphia road was never more than 300 meters wide but even that was fully evacuated by Israel in 2005.

    As to US foreign aid, in 2008 Israel received a total of $2.8 billion in US assistance. Egypt received $1.7 billion.

    I, incidentally, have for years opposed more foreign aid for Israel. With a $200 billion GDP she can fund all of her needs without US taxpayer assistance.

    You claim: >> Obama should order the Israeli leadership to pull out of the occupied territories or else. This worked well when President Eisenhower ordered Ben-Gurion to pull out his forces when the Israelis occupied the Sinai in 1956, Ben-Gurion pulled out in 48 hours. <<

    Israel conquered the Sinai in October 1956.She withdrew in March 1957. Some 48 hours!

    Ike, in 1956, had little leverage over Israel. She got modest foreign aid and a 1948 embargo continued to deny her modern US weapons. Ike's leverage was over France and Britain whom he quickly forced to withdraw by threatening to destroy their currencies.

    When Israel did withdraw it was because the UN's first peacekeeping force, UNEF was to serve as a buffer between Egypt and Israel and to keep out fedayeen raiders from Sinai and Gaza. Also, Ike guaranteed Israeli shipping through the Suez canal and her access to the Red Sea. Those promises were not kept in 1967 when Nasser closed the Straits of Tiran; and UNEF ran away when Nasser brought 800 tanks to the border.

    You really suppose, your Jew hate is not transparent?

    Posted by Hugo_Pirovano at 01/24/2009 @ 10:25pm

  83. sjchermak is evil?

    hmmm...

    Posted by ibbleblibble at 01/24/2009 @ 10:49pm

  84. Bear with me, folks:

    http://www.youtube.com/watch?v=cqi5F5MqqTQ

    Posted by A_Pax_On_Your_Houses at 01/24/2009 @ 11:14pm

  85. Posted by HAPPYLonghorn at 01/24/2009 @ 7:18pm

    Obama made a mistake. He shouldn't even consider Limbaugh relevant...cuz he's not.

    Although maybe there's method in that madness, as it forces the GOP to OPENLY declare their loyalty to their SJCHER/HAPP/LVLIB wackadoodle base (in the shape of Limbaugh) and further alientate themselves and marginalize themselves...

    or reject them and try to appeal to the Center (which they've lost)...but risk you guys going "third party" and backing some "America First"/"Real Conservative" Party, that leaves the Right shattered permanently.

    Posted by Mask at 01/24/2009 @ 11:26pm

  86. Posted by lvliberty1 at 01/24/2009 @ 7:54pm

    2.4 million in West Bank includes Israeli settlers and East Jerusalem.

    1.5 million in Gaza is still significant and would be the equivalent of excluding 18 out of the 50 states in the US.

    Negotiations 101 requires ALL interested parties at the bargaining table if you want the negotiation to succeed.

    If you want to play lip service to negotiations or favor one party over the other, then excluding Hamas is the way to go.

    Ending the Israeli embargo of Gaza ends the Hamas rockets, so if we are serious about resolving this conflict, that appears to be the logical starting point.

    Hamas has already recognized Israel's right to exist within the pre-'67 borders, so once the embargo issue is solved there really is no reason to keep Hamas out of the process.

    Posted by Metteyya at 01/24/2009 @ 11:27pm

  87. Questions CripThink asked and statements Metteyya made:

    ===========

    What is wrong about relinquishing the occupied territories for the sake of peace? CripThink

    Ending the Israeli embargo of Gaza ends the Hamas rockets Hamas has already recognized Israel's right to exist within the pre-'67 borders Metteyya

    ================

    CripThink - below I have posted why that would be wrong and Metteyya - what is below shows that the Hamas rockets do not end

    =================

    Fathi Hamad, Hamas Member of Parliament, to al-Aalam Iranian television in Arabic, 15 March 2007: (prior to the swearing-in of the Palestinian Unity government):

    "Hamas rejects the Arab [peace] initiative and wants Palestine from the [Jordan] River to the [Mediterranean] Sea. If today Israel cannot be beaten militarily, it will be possible in the future."

    • Dr. Mahmud al-Zahhar, Hamas leader in Gaza,to Hamas TV, 3 April 2007:

    "Entry to the capital means the state falls. Entry to Al Aqsa Mosque means entry to Jerusalem, it means the fall of that state that sees Jerusalem as its capital. Entry there will be victorious."

    Sami Abu-Zahary • Sami Abu-Zuhri, Hamas leader in Gaza, to Hamas TV, 6 April 2007:

    "These are the founding Hamas principles on which we raise our children and in which we believe:

    * Armed resistance * Non-recognition of the occupation in any form * All Palestine from the river to the sea * The holy places and Jerusalem * The right of return

    =================

    This is so expansive and prevalent I have to continue in a second post. Frosty Zoom might want to understand the sentiment expressed, also, in order to snap out of the pacifist la la land. (in his case located in Windsor and not Los Angeles)

    Posted by sjchermak at 01/25/2009 @ 12:17am

  88. Hamas' real intentions and goals, ctd.

    =================

    5. Prime Minister Isma'il Haniyya in an interview to the Saudi paper Al-Jazeera, (2 April) regarding the recognition of Israel:

    "As far as we are concerned, this is settled once and for all. It is settled in our political literature, in our Islamic thought and it is settled in our Jihadist culture on the basis of which we make our moves. The issue of recognizing the Israelis is out of the question."

    "We have been advocating the establishment of a Palestinian state within the 1967 borders with Jerusalem as capital and the return of the refugees. For this we will declare a truce, not recognition of Israel. This is our view in Hamas."

    9. In a series of interviews at the end of March and early April (PalMedia 31 March, Falastin Alan - internet - 1 April, Al-Aqsa TV and Al haqiqa a-Dawliyah 4 April), A-Zahhar stressed the difference between the principles of Hamas and those of the unity government:

    In his opinion, government guidelines are good for only 3 years (until the next elections in 2010) but Hamas principles will last longer, and no concessions had been made by Hamas. He stated that the Hamas platform as an Islamist movement is quite different from the guidelines of any government. Referring to the question of "respecting agreements" (made by the PLO with Israel) to which Hamas had (presumably) subscribed, he clarified that it did not mean that Hamas recognized those agreements or was obligated to carry them out.

    On the question of the borders of the Palestinian state he said:

    "Permanent borders meant recognition of Israel, while temporary borders meant just a cease fire or a de facto situation. We say that even if we get 99% of Palestine we shall consider that to be within temporary borders... We differentiate between the aim and the method, historic Palestine is the aim, negotiation is a method."

    Posted by sjchermak at 01/25/2009 @ 12:27am

  89. Hamas' real intentions and goals, ctd.

    =================

    10. The Hamas spokesman, Isma'il Radwan, gave a virulent sermon in the Gaza Mosque on Friday 30 March (Palestine TV) in the course of which he urged fighting and killing the Jews

    He quoted from the Hadith (sayings attributed to the prophet Muhammad) declaring:

    "Judgment Day will come when the Moslems kill the Jews." He alleged that the repairs Israel is carrying out near the Mugrabi Ramp in Jerusalem (note: work necessitated by a natural landslide after heavy rains) were designed to destroy the Mugrabi Gate (note: leading to al-Aqsa Mosque) and rebuild the [Jewish] Temple.

    Calling for Jihad (holy war) to defend al-Aqsa. Radwan said that Palestine and Al-Aqsa would not be liberated by conferences, international decisions or negotiations, but by the gun, because the occupation only recognized force. He concluded by saying that honor will not be regained for Palestine nor its liberation attained without Jihad as foretold by Allah in the Quran.

    ==================

    What part of this is not understood, as to it's meaning?

    One of these I posted said 99% of Israel is not enough!

    That is kind of blatantly obvious as to what the intention is.

    This stuff (Hamas goals) don't seem to have a single thing to do with all the so called oppression and wrong that people like syfriendly would have you believe that the Palestinian people are under.

    Somebody like Frosty Zoom thinks anybody that comments on this is evil.

    You are supposed to believe that EVERYBODY wants peace, and answer questions why nobody attacks New Zealand. The implication is the EVERYBODY wants peace except Imperialist America and Warmongering Israel.

    It seems like Hamas does not want peace, until they grab all of Israel.

    Posted by sjchermak at 01/25/2009 @ 12:35am

  90. Posted by Hugo_Pirovano at 01/24/2009 @ 10:25pm

    Hugo,

    The American economics aid package to Israel is 2.8 billion Dollars annually. There is also separate military aid package. There are joint R&D ventures between the US and Israel in missiles and other weapon systems which are entirely paid for by the US. One large American contribution to Israel is the tax exemption status to all donations made by US citizens, American Jews and evangelical Christians to Israel. These donations are estimated to be about 10 billion Dollars annually; costing our treasury considerable tax revenue. The Americans asked Ben-Gurion to pull out his forces from Gaza, the Israelis stalled until March 1957 when Eisenhower Threatened Ben-Gurion with sanction. Ben-Gurion started to move out in 48 hours. According to the Israeli Human right group B'T Selem, the Israelis created what they call buffer or security zone along Israel's borders with Gaza. This zone varies between 1-3 miles in width along the entire borders or about 25% of the total land in Gaza. Palestinians are barred from entering that land. B'T Selem has a comprehensive report on the destructive and inhumane aspects of Israeli siege of Gaza and can be found at: http://www.btselem.org/English/Gaza_Strip/ By the way, I did not attend Jewish-only schools as many participants in this forum, thus my temperament is based on secular fairness. Nor do I view myself as part of the Chosen few, and I don't hate or view other races with inherited contempt. But let me concede to you that I do hate injustice and those who treat others with the same brutality which was once inflicted on them.

    Posted by CripThink at 01/25/2009 @ 01:05am

  91. bend over and grab our ankles..."

    Posted by HAPPYLonghorn at 01/24/2009 @ 5:57pm

    OL' Rush "Bend Over" Limbaugh. Rush's favorite expression is Bend over This, Bend over That. This preoccupation of Limbaugh's should make some of you repugs a little uneasy. Well maybe not. Many homophobes are just in the closet anyway.. Nevermind.

    Posted by chaoszen at 01/25/2009 @ 01:33am

  92. >>>It seems like Hamas does not want peace, until they grab all of Israel.

    Posted by sjchermak at 01/25/2009 @ 12:35am<<<

    That is AIPAC propaganda, SJC!

    This is what they "used" to say about the PLO and Arafat.

    This propaganda is only effective on those with short memories, or on those who are not really paying close attention.

    The plain fact is that in 2006, Hamas stated unequivocally that it RECOGNIZES ISRAEL'S RIGHT TO EXIST within the pre-'67 war borders. I know you won;t be able to convince the Middle East news editor at the NYT to report this fact in their newspaper, but this does NOT make the fact go away.

    http://www.ynetnews.com/articles/0,7340,L-3249568,00.html

    Posted by Metteyya at 01/25/2009 @ 01:42am

  93. sjchermak is evil? hmmm... Posted by ibbleblibble at 01/24/2009 @ 10:49pm

    well,

    you gotta try somethin'

    he's o.k. i wish he'd see "they" got grandkids, too.

    Posted by frosty zoom at 01/25/2009 @ 01:49am

  94. pax,

    that is one weird cartoon.

    i watched a bit but i'm in a good mood and that's one weird cartoon.

    i'll try tomorrow night.

    "thanks"

    (i think there's probably a very good point in there, it's just that's one weird cartoon)

    Posted by frosty zoom at 01/25/2009 @ 01:52am

  95. I'll just put Raul's face on you....I am sure you'd be proud!

    Posted by HAPPYLonghorn at 01/24/2009 @ 11:43pm

    and richer.

    (i think mask's name is a good choice. i will not state the longhorn joke i have just deleted.)

    Posted by frosty zoom at 01/25/2009 @ 01:55am

  96. Everytime I try to post a link here I get an error message. Word is too long or some crap. What's up with that?

    Posted by chaoszen at 01/25/2009 @ 02:00am

  97. This is so expansive and prevalent I have to continue in a second post. Frosty Zoom might want to understand the sentiment expressed, also, in order to snap out of the pacifist la la land. (in his case located in Windsor and not Los Angeles) Posted by sjchermak at 01/25/2009 @ 12:17am

    why are you obsessed with my place of residence?

    i've been on vacation to cumberland island, georgia, too.

    it's real nice. lotsa god and stuff.

    i live in no lalaland.

    my house is peaceful.

    isn't yours?

    don't you want to extend that peace ever further?

    you can pick at the scab or put on some aloe vera, the choice is yours.

    just remember, some scars become permanent.

    how much prosperity and good times does war bring?

    didn't think so.

    read the butter battle book:

    "The race begins when a Zook named Van Itch slingshots the Yooks' "Tough-Tufted Prickly Snick-Berry Switch", which could be used to give Zooks a twitch if they dared to come close to the wall, which was guarded by "the Zook-Watching Border Patrol". The Yooks then develop a machine with three slingshots interlinked, called a "Triple-Sling Jigger". This works once (Van Itch got scared and ran off), but the Zooks counterattack with their own creation: The "Jigger-Rock Snatchem", a machine with three nets to fling the rocks fired from the Triple-Sling Jigger back at the Yooks' side "just as fast as we catch 'em"."

    and the wheels on the bus go round and round.

    but i like life. and almost everybody i meet does, too.

    i know many muslims. not one has ever tried to change me into a follower of the quran, nor do i get the impression that they care.

    they want to sell me spinach pies.

    and when i speak the smattering of arabic i know, they seem happily surprised to see that someone sees them as just another human, not so

    Posted by frosty zoom at 01/25/2009 @ 02:03am

  98. meone he will eat children.

    and i've found that to be true of people from everywhere.

    make no assumptions and search for the goodness in everybody's heart.

    pacifist? preferably. why is that degrading in your eyes?

    why do you degrade the words of jesus, for ˇsi! blessed are those crazy folks who make peace,

    who say wtf when the clusterbombs raindown.....

    and my apologies, for you are not evil.

    "Gonna lay down my sword and shield

    Down by the riverside

    Down by the riverside

    Down by the riverside

    Gonna lay down my sword and shield

    Down by the riverside

    Ain't gonna study war no more."

    by the riverside indeed.

    ≤≤≥≥

    see, humans need to take that next step. we need to calm down.

    ain't no "money" left for such silly nonsense.

    don't grasp at the past, reach for the future.

    that's the only way we can go.

    ≤≤≥≥

    peace be upon you.

    Posted by frosty zoom at 01/25/2009 @ 02:13am

  99. I intend to email my two Senators & Representative to vote against the `Stimulus Bill' as it stands today!

    Posted by HAPPYLonghorn at 01/24/2009 @ 11:53pm

    i'm sure your representatives are ready to represent.

    Posted by frosty zoom at 01/25/2009 @ 02:14am

  100. You are supposed to believe that EVERYBODY wants peace, and answer questions why nobody attacks New Zealand. The implication is the EVERYBODY wants peace except Imperialist America and Warmongering Israel.

    Posted by sjchermak at 01/25/2009 @ 12:35am

    no way.

    there's lotsa wackos out there.

    the u.s. ain't the worst, not even close.

    but it seems, that most of the time,

    peaceful people get to be peaceful.

    why take stuff when you can pay for it? sheesh.

    imperialist america? what a cheesy cliché.

    israel needs to calm down, say o.k. we've got enough. putting israel there was dumb. but there they are. no problem. lotsa smart people there who can do many wonderful things. but taking peoples orchards and putting up giant walls to make people live in swiss cheeseville is so passé.

    their ain't no money left.

    of course everybody doesn't want peace. i mean, we've invented clusterbombs after all.

    but can't you see that most people do?

    they want to work, eat dinner and play on the xbox.

    it's time to share.

    Posted by frosty zoom at 01/25/2009 @ 02:22am

  101. see sjch,

    in my lalalaworld we don't need no police or military 'cause i ain't gonna hurt nobody.

    and if that's just 1/6,785,432,345th of humanity, so be it.

    i'm proud.

    Posted by frosty zoom at 01/25/2009 @ 02:24am

  102. It seems like Hamas does not want peace, until they grab all of Israel.

    Posted by sjchermak at 01/25/2009 @ 12:35am

    and who is hamas?

    just another bunch of morons who say they represent the people.

    a people offered a choice between the corruptocrats and the fundaloids.

    whoopee!

    meanwhile al-gazan dude can't by bread 'cause his "leaders" are spitting on people cause there being spit upon by the others and so on.

    the wheels on the bus go round and round.

    fuck hamas. fuck likud.

    whackos.

    we need to be negotiating with farmers and bakers not power grabbers.

    stupid humans.

    Posted by frosty zoom at 01/25/2009 @ 02:29am

  103. and rush is a boor.

    Posted by frosty zoom at 01/25/2009 @ 02:29am

  104. let's check to see how long the character string limit is:

    abcdefghijklmnopqrstuvwxyz1234567890!@#$%^&*()ˇ™Ł˘∞§¶•Şş

    Posted by frosty zoom at 01/25/2009 @ 02:31am

  105. abcdefghijklmnopqrstuvwxyz1234567890!@#$%^&*()ˇ™Ł˘∞§¶•Şşabcdefghij klmnopqrstuvwxyz1234567890!@#$%^&*()ˇ™Ł˘∞§¶•Ş

    Posted by frosty zoom at 01/25/2009 @ 02:31am

  106. that many.

    111 characters.

    Posted by frosty zoom at 01/25/2009 @ 02:32am

  107. The page you are trying to access does not exist. Please use the form below to let us know what you were trying to do that led you here. Thanks for helping us improve our website!

    Posted by frosty zoom at 01/25/2009 @ 02:33am

  108. must be updating or something.

    Posted by frosty zoom at 01/25/2009 @ 02:33am

  109. and springsteen is going to ruin the stuporbowl.

    go cards!

    pittsburgh by 5.2 (the secondary's gonna gobble warner up)

    Posted by frosty zoom at 01/25/2009 @ 02:36am

  110. and rush is a boor.

    he should be the next spokesmodel for [insert something funny here].

    Posted by frosty zoom at 01/25/2009 @ 02:40am

  111. and rush is a boor. Posted by frosty zoom at 01/25/2009 @ 02:40am

    Or a boar? Like in pig.. Gee, can't we just hog tie him and horsewhip him?

    Posted by chaoszen at 01/25/2009 @ 02:53am

  112. That might be the beer talkin..

    Posted by chaoszen at 01/25/2009 @ 02:54am

  113. http://www.youtube.com/results?search_type=&search_query=rush+limbaugh+b end+over&aq=f

    Bend Over Link.

    Posted by chaoszen at 01/25/2009 @ 03:01am

  114. Hamas might offer a 100 year HUDNA.(PEACE).Kucinich needs support .Israel continues to grab land in 2008.

    Posted by worker-bee at 01/25/2009 @ 05:00am

  115. (i think there's probably a very good point in there, it's just that's one weird cartoon) Posted by frosty zoom at 01/25/2009 @ 01:52am

    (spoken in Rafiki's voice): Claymation has an inherent ugliness, don't you think?

    Posted by A_Pax_On_Your_Houses at 01/25/2009 @ 05:41am

  116. We know that SJ "BLACKS DON'T WANT OR NEED TO VOTE" CHERMAK is a right-wing automaton, a savage incapable of more than imitating primitive rightwing memes, a Ditto-Head Deluxe.

    But let's test out further what this means. We know already that it means that he despises American, a nation that is far beyond his meagre capacity for comprehension. And we know that it means that he is a long-winded and vapid apologist for the NeoC(l)o(w)n PNAC when they were braying and foaming at the mouth for a "New Pearl Harbor" in 2000 -- human sacrifice of American blood for their policy package of exquisite stupidity. And we also know that SJ's savagery and primitivism make him a densely stupid shrug-and-hand-wave apologist for Charles Black's ghoulish comments about the upside of a terror strike for McCain's electoral campaign. SJ has let this smouldering hatred and contempt for 300,000,000 Americans slip on other threads. But let's open some new lines of examination of the sorry Rush-Sean hating of which SJ is a copy carbon-copy, as dumb as he is ignorantly smug.

    Question, SJ: Geore W Loser carried the 2004 election by a thin margin although, in recent times, candidates running for a 2nd term tend to either gain it (Reagan, Clinton) or to be denied (Carter) by resounding margins. It is safe to assume that the unusual political landscape after 9-11 gave Loser the edge against Kerry. So, it's likely that without 9-11, metrosexual elitist W Loser would have been sent into retirement 4 years ago in January '05. So, the question, SJ:

    __ American history is better WITH 9-11 and with the enablement it gave for two terms of W Loser.

    __ American history is better WITHOUT 9-11 and with a Kerry presidency following one term of W Loser.

    (Now watch his wild spasms of apologetics!)

    Posted by PhilMcCrevice at 01/25/2009 @ 10:38am

  117. Posted by HAPPYLonghorn at 01/24/2009 @ 11:53pm

    HAPP, you and I are in complete agreement.

    I think 3-4 more election cycles "on the outs", because the Republicans have decided to link themselves to Fat-man and his youthful ward, Seanin the Boy Blunder...is just the lesson they need to get them back on track.

    Oh and please run Sarah Palin as your nominee in 2012.

    That'll show Obama and those Demoncrats!

    heheh

    Posted by Mask at 01/25/2009 @ 10:46am

  118. More questions for SJ "BLACKS DON'T WANT OR NEED TO VOTE" CHERMAK.

    Shall we see whether the abject stupidity of the thoughts that he has been too lazy to think can approximate even the most minimal standards of coherance?

    1-In Ditto Head Deluxe mode, SJ smugly praises himself as a staunch foe of Islamofacism (thereby imitating the very word choice of the people who tell him what to think).

    On the assumption that he is now 45 years old or less and could have been deemed fit for combat during the manly GWOT, I ask SJ to describe his service to the that GWOT.

    Please notice that "Front line, Blogger, 1800 words a pop, brave posts stenographically consistent to the creeds of Rush, Sean, the Moonies, and Scaife" does not constitute a formal rank.

    2-As SJ is sufficiently expert on the topic to wave at it endlessly, may he kindly specify *more precisely* what he means by Equal Protection under the 14th Ammendment as it bears on the SCOTUS case W Loser v Gore. SJ has had this one posed to him on countless occasions now and he continues to dodge it since he has been unable to cut-and-paste anything of convenience from NewsMax to fill in what he "thinks".

    3-What, in precise and specific terms, distinguishes a court "making" law from a court "interpreting" law? SJ has, with the smugness and pomposity of someone who has followed his Maximum Leader Rush's every syallable for years like a scholar pouring over scrolls, so he should be well versed in particulars that explain WHY he believes what he adamently insists that he believes.

    Failing that, as SJ undoubtably will, it is safe to assume that his expertise is in hitting 1800 words without even the vaguest clue of why he claims to believe his stated beliefs -- indistinguishable from a pre-modern CroMag...

    Posted by PhilMcCrevice at 01/25/2009 @ 11:03am

  119. Phils meds have worn off or failed completely....again. He needs govt health care now.

    Posted by YourJomamma at 01/25/2009 @ 11:04am

  120. "Oh and please run Sarah Palin as your nominee in 2012.

    That'll show Obama and those Demoncrats!

    heheh"

    Posted by Mask at 01/25/2009 @ 10:46am

    Given that Saint Sarah is struck dumb by viciously accusatory questions like "What publications do you read?" when posed by John Yoo-torture-opinion-wielding uber-Inquisitors like Katie Couric, another questions Dems may want to ask of her holiness: "Saint Sarah, you are against abortion in cases of rape and incest. Are you therefore IN FAVOR of rape and incest? Is Ayatollah Todd?"

    Posted by PhilMcCrevice at 01/25/2009 @ 11:11am

  121. john,

    do favour a private police force, too?

    how about private water?

    private firefighters?

    private president?

    private military?

    oh, yeah. you've already got that.

    Posted by frosty zoom at 01/25/2009 @ 11:13am

  122. Posted by frosty zoom at 01/25/2009 @ 11:13am

    FROSTY,

    JOMAMMA's dense agnosia toward what he allegedly believes is worse than could otherwise be imagined.

    Recall that JOMAMMA is the self-nominated pro-Torture and pro-Invasion/Occupation "libertarian". Yup, that's his word for himself: "libertarian". With airtight logic, JOMAMMA seeks to convice the world that a government that issues library cards, or delivers mail on roads it constructed, has reached the heights of lunatic ineptitude and depravity. But *somehow* through *alchemy* different divisions of that same state exhibit *unquestioned* wisdom and operational acumen that, by definition, hovers above criticism when it dispatches planes, warships, tanks and foor soldiers on a mission against civilians.

    It may seem there are two brains fighting for ideological supremacy in JOMAMMA's tortured skull as he lumbers about Lincoln banging his head and moaning. However, the truth is that there are no brains resident there -- only a drippy shit-like goo that causes his well-documented random spastics at the keyboard. Thus, JOMAMMA is able to vote twice for George W Loser even as he decries W Loser as "not a real conservative" and other apologetic drivel for his own failings in torturing reality until it screams.

    Posted by PhilMcCrevice at 01/25/2009 @ 11:28am

  123. if we waterboard reality, will it rain?

    if we sleepdeprive reality, will the moon never rise?

    if we "harshly interrogate" god, will he tell us the meaning of life?

    http://ca.youtube.com/watch?v=HZtTLHAvDhc&fmt=18

    Posted by frosty zoom at 01/25/2009 @ 12:33pm

  124. sarah palin?

    too passé....

    the GOPPERS already have the 2012 ticket set:

    BAUER/TOKEN -- Harsh Victory for America.

    Posted by frosty zoom at 01/25/2009 @ 12:44pm

  125. Posted by HAPPYLonghorn at 01/24/2009 @ 11:53pm

    Please stand apart. Maybe learn something from your Old Right roots and move beyond this hackneyed conceptual framework of "left", "right" and "center" - the last of which is just code for "popular".

    Posted by srjenkins at 01/25/2009 @ 12:53pm

  126. Prez Obama at least mentioned Palestine as if they actually existed in his speech, I hope he will be stronger on his stance toward Israel than Bush was but I suppose time will tell. This conflict cannot continue to go on without any kind of resolution toward a permanent peace for that region. I think George Mitchell is a good man to have on hand, he has dealt with kind of thing before with the IRA and it can't do any harm for him to get involved. Both sides need a lasting peace, no one side should have anymore say than the other and we must be honest brokers in this and not take sides!!

    Posted by Caj at 01/25/2009 @ 1:24pm

  127. Posted by HAPPYLonghorn at 01/25/2009 @ 1:21pm

    BTW, HAPP, again, would you explain why it's terrible the "general lack of respect for authority" and "Deragnement Syndromes" about the President of the United States...

    don't count....now.

    So we can tell our "Magical Messiah".

    Posted by Mask at 01/25/2009 @ 1:28pm

  128. left + X% of center = popular, IF AND ONLY IF >0.50

    :)))))))

    Posted by HAPPYLonghorn at 01/25/2009 @ 1:33pm |

    All hail Archimedes Longhorn! Hey HAP I hope you don't balance your own checkbook...

    Posted by chaoszen at 01/25/2009 @ 3:51pm

  129. <i>Posted by PhilMcCrevice at 01/25/2009 @ 11:03am </i>

    Leaving all the rest aside, I'm going to try and address (3) because I think it raises an important question about our judicial system.

    One of the best ways I've heard it explained is this: the Constitution provides a judge with the major premise for his or her argument, and the interpretation part involves finding the minor premise that will entail a particular legal conclusion in the case at hand. That's what the "interpretation" framework means. From this perspective, the role of the judge is to take fixed principles and analyze how they apply to the case at hand.

    The "making law" framework, on the other hand, allows the judge to also decide what he or she believes the major premise should be. For instance, the overturning of state or federal laws based on rights not enumerated in the Constitution, but placed in there because the judge believes they are fundamental to a system of ordered liberty or something to that effect, is making law.

    I recognize that the boundary between these two isn't simple black-and-white. The key difference is that when the judge is deciding, the principles which underlie their decision should not be of their own creation, but should originate from the Constitution itself as originally understood. I tend to think that is the only framework which enjoyed the consent of the Constitution's creators and ratifiers, and the only one which is capable of reconciling the tension between judicial review and democratic representative government. Quite simply...the Constitution is law, the judge's moral and philosophical convictions are not.

    Posted by Thrawn at 01/25/2009 @ 4:34pm

  130. Posted by Thrawn at 01/25/2009 @ 4:34pm

    THRAWN, your comments strike me as a reasonable first pass on the general form of the question. We also notice, however, that (1) SJ maintains his sullen silence on the matter and (2) having addressed some particulars about the concept, we still do not have an account of its fit around the SCOTUS remanding the Bush v Gore case back to the Florida Supreme Court in '00 just as SCOTUS claimed the clock was exhausted.

    Let's also note that, unsurprisingly, cons indulge in what they accuse other people of doing. Scalia and Thomas have been far more activist in striking down local laws than Ginsberg and Breyer, at the least and at first blush trumping legislative processes and intervening into local governance.

    But onto SJCHERMAK.

    To bring the plot up to date, SJCHERMAK has been reading his cue cards as written by Sean and NewsMax and he has been going completely apeshit on another thread about "people trying to kill us".

    SJ is manly in his indignation on this issue that libruls do not get.

    Question for SJCHERMAK: When George W Loser was handed a memo on 6 August 2001 entitled about "people trying to kill us", entitled, "alQ poised to strike in USA", what did the metrosexual elitist phony do with the memo?

    Make a paper airplane with it?

    Hand it off to a servant for disposal & then then play several rounds of golf (as he spent his younger years, while Ho Chi Minh menaced San Francisco)?

    Boo-hoo to daddy or nice old man Mr Cheney that (whimper sob sob) this job was too tough for him, when was the bailout coming?

    SJCHERMAK, you have said repeatedly, with psuedo bravado and embarrasingly fake sophistication that "people are trying to kill us". What did George W Loser do when he was told this very thing???

    Posted by PhilMcCrevice at 01/25/2009 @ 4:59pm

  131. Posted by HAPPYLonghorn at 01/25/2009 @ 1:21pm

    We live in a republic, and popular doesn't determine who wins. Consult the 2000 election for an illustrative example.

    Posted by Thrawn at 01/25/2009 @ 4:34pm

    "The key difference is that when the judge is deciding, the principles which underlie their decision should not be of their own creation, but should originate from the Constitution itself as originally understood."

    Aside from the fact that judges do not make their decisions this way, you aren't providing any support for your normative claim that they should.

    Your structure is also flawed. There are plenty of topics that judges have to give rulings on that have no basis in Constitutional law - export controls on encryption, malpractice, custody of children, etc.

    Your framework is also conveniently avoiding our tradition of common law, which you have done in the past and is the central flaw in your thinking.

    Posted by srjenkins at 01/25/2009 @ 5:43pm

  132. http://ca.youtube.com/watch?v=HZtTLHAvDhc&fmt=18 Posted by frosty zoom at 01/25/2009 @ 12:33pm

    Lordy sweet Mama! Somehow I don't think that was the Portuguese version of "I'm Goin' to Jackson."

    I do, however, have a you tube featuring an appearance by God. I think:

    http://www.youtube.com/watch?v=prC_eExhVQM

    Not nearly as Cheney-esque as the previous one.

    Posted by A_Pax_On_Your_Houses at 01/25/2009 @ 5:52pm

  133. <i>Posted by srjenkins at 01/25/2009 @ 5:43pm </i>

    I mean, many judges DO make their decisions that way, or at the very least strive to. Empirically, there are many judges who do not subscribe to the realist paradigm that you often defend.

    Let me also be clear on what I am defending. My analysis relates specifically to cases in which judges strike down the laws made by elected representatives. The common-law has never been understood, as far as I can tell, to fit this paradigm.

    I think I've also given plenty of reasons for my position:

    1) An intuitive reason is that when judges say that X act is "unconstitutional," they recognize that such is the only justification for striking an act down. The only question then is, "what is constitutional?" So long as the Constitution is law, it follows that a provision of it should be interpreted as originally understood, just as we tend to do for statutes.

    2) The original understanding of the Constitution is the only one to which people could at all be said to have given their consent; what you have to prove is that somehow, a judge's own political philosophy not only counts as law, but is in fact enough law to outweigh the outcomes of democratic processes.

    3) Absent the original understanding, you have no standard but the judge's own political philosophy. In addition to the reasons why this isn't "trump law," this position can't even get off the ground because it requires the additional assumption that the judge somehow possesses superior moral discernment to elected representatives, and I see no good reason to believe that.

    One last note: activism isn't about how many statutes you strike down, it's about the grounds on which you do so because some grounds constitute a usurpation of legislative authority.

    Posted by Thrawn at 01/25/2009 @ 6:09pm

  134. Looking at these entries, one thing is clear... this problem is just as far away from being resolved as it has ever been and none of us live there. Everyone has their favorite facts that refute the facts of someone else. An endless causality loop involving name calling, finger pointing and the massaging of historical data. Just like 'over there'.

    Oddly, it seems that everyone has some credible points on the issue as well. But rarely do you see a post that says..." Y'know, you have a point there. I'm going to think about that". Nope. Everyone is wrong. Much like the conflict itself, there is no room for concession. It seems like there is mostly browbeating with an obsession for a desired capitulation on the part of the other party.

    Overpopulation fuels the flame. Adherence to ridiculous and unprovable religious beliefs and dogma throws an accelerant onto the fire. A Jungian substrate in our consciousness let's us simultaneously hope for and acknowledge a fast approaching end of our own making while we also try to deal with our failures and make a half hearted attempt to address them. The problems inherent in this process are made worse by our own intractable self-centeredness.

    This conflict is one of the greatest examples of our generalized failure as a species. Will we destroy it all and each other? And/or will we continue to 'improve' on a reality that is more and more miserable for most of the living? The answer is 'probably both'. There seems to be far more malice, derision, and hatred than there is good will towards others. Far more fantasy than pragmatic realism. Hatred DOES seem to be a family value, regardless of those who would scoff at this somewhat maudlin yet harshly realistic statement.

    Posted by ficheye at 01/25/2009 @ 6:45pm

  135. A Jungian substrate in our consciousness let's us simultaneously hope for and acknowledge a fast approaching end of our own making while we also try to deal with our failures and make a half hearted attempt to address them. The problems inherent in this process are made worse by our own intractable self-centeredness. Posted by ficheye at 01/25/2009 @ 6:45pm

    This is scary - like we're a old person about to croak and we believe have to come to grips with our mortality and make amends and say our foxhole prayers and we're bringing down the whole planet with us, if I read you correctly

    Posted by A_Pax_On_Your_Houses at 01/25/2009 @ 7:04pm

  136. Posted by ficheye at 01/25/2009 @ 6:45pm

    Very thoughtfull post. We do tend to browbeat each other here. There does seem to be no room for concession. The insanity of this world does make us all seem like fools lost. I concede that. But every once in awhile we transcend it. Not to often. Not often enough. But just often enough to make it worthwhile. There are solutions.

    Some have been posted here. I lived in Afghanistan for quite awhile. True, it was over 30 years ago. But the experience changed me forever. I have much respect for the Afghan people. The resistance to change from the outside world and the starkness of their existence coupled with the amazing moon like terrain. I travelled everywhere there, maybe not each square inch as it is a large place. I was entranced by things like their horsemanship. And even things like their rampant homosexuality, which is brought about by the difficulty of their culture. Most men do not have the money to secure a bride. They must save up. It is not uncommon for a man to ever even see the full measure of a woman.. Even within the family. Women are like shadow people, never going anywhere without a male escort.

    I don't mean to ramble. But if you have ever been over the Khyber Pass to the outlaw areas between Afghanistan and Pakistan, you would never understand..

    Posted by chaoszen at 01/25/2009 @ 7:09pm

  137. never yet, chaos. Hope to, one truly happy day

    Posted by A_Pax_On_Your_Houses at 01/25/2009 @ 7:17pm

  138. In the lawless no mans land between the Afghan border and the Pakistani border, strange things occur. One example, when I went through there 3 British travellers had camped out for the night. During the night bandits had invaded their camp. But they never knew. Three of them were sleeping side by side. The one in the middle woke up in the morning to discover that his money and passport were missing from the purse around his neck. A hole had been cut in his mummy sleeping bag and his purse removed from around his neck. When he tried to waken his companions he discovered they were dead. Their heads had been removed, and were carefully placed reversed on the others body. A rather wicked sense of humor. Leaving one alive to tell the tale.

    Posted by chaoszen at 01/25/2009 @ 7:31pm

  139. Posted by Thrawn at 01/25/2009 @ 6:09pm

    "So long as the Constitution is law, it follows that a provision of it should be interpreted as originally understood, just as we tend to do for statutes."

    It doesn't follow at all. In fact, there is a whole tradition that observes a "Living Constitution" that the Constitution is what it is understood to mean - via Supreme Court decisions (common law, if you'd like to call it that), terminology changes and what not.

    The point is that it does not follow and you are smuggling in your own assumptions into your argumentation.

    "...what you have to prove is that somehow, a judge's own political philosophy not only counts as law..."

    I don't have to prove this at all. Further, there are plenty of counter-arguments I could bring to bear - such as the fact that no one, living, has ever given their formal assent to the Constitution and we are basically talking social contracts. If it is social contract, then formal approval by ratification can be chucked out. Again, huge flaw in your thinking.

    "...Absent the original understanding, you have no standard but the judge's own political philosophy..."

    More smuggled in assumption based on flawed ideas that law has to make sense. Law is, as someone famously stated, what is most brazenly asserted and plausibly maintained. It doesn't make sense. It doesn't follow logic. All you have to do it read some of it and see the Supreme Court flip flop on its decisions hundreds of times to know it doesn't follow from first principles or from the Constitution (which is implied by the very concept of unconstitutionality).

    Your ideas are all well in good. But I assert, yet again, that not only are they not the case. I don't even think it would be good to implement, even if possible.

    Posted by srjenkins at 01/25/2009 @ 7:36pm

  140. A surgical strike. br-r-r-r-

    Posted by A_Pax_On_Your_Houses at 01/25/2009 @ 7:37pm

  141. Posted by chaoszen at 01/25/2009 @ 7:09pm

    I do have hope. I seek the truth, whatever that is. Wherever that is. And all the bloggers here seek truth as well, that much is granted to us all.

    The only truth that I've found so far, pure truth, is when I walk far down a wilderness trail and finally stop and listen to the wind and the water and to the silence. There, finally, the lies and fabrications of our human existence cease.

    I fully expect some unhappy blogger to ridicule the idea of hope, however, much to the point of my first post. My response to that is... the opposite of hope is despair. Is that what they would advocate for? I do not despair, but based on the ongoing dilemmas of our world, I linger in between.

    Posted by ficheye at 01/25/2009 @ 7:48pm

  142. Posted by ficheye at 01/25/2009 @ 6:45pm

    "But rarely do you see a post that says..." Y'know, you have a point there. I'm going to think about that"."

    The issue is that most of the points discussed here require different starting points.

    I can acknowledge that there is a dangerous form of Islamic fundamentalism. But, there is a whole set of beliefs that goes from taking a fact that we can agree on, to making arguments about how we are in a global "culture war" with Islam where all Islamic adherents are looking to enslave non-Muslims.

    Or ideas that the U.S. has the responsibility to make the world safe for "democracy".

    Or ideas that taxes should be cut without changing policies that require huge deficit spending or talking about the percentage of the debt comes from what and what needs to be changed to eliminate it. Some people even argue for forever debt based on some percentage of GDP that they wouldn't tolerate of their own family budget.

    But, I think your point is an excellent one. If we can't talk about basic facts and you are just going to rehash the same old arguments (such as Thrawn's ideas about interpreting the Constitution literally and mine that point out that the real world doesn't work that way) - what's the point of having any discussion at all?

    In short, is this all just a collossal waste of time that would be better spent with our families talking about - whatever it is we talk about at home.

    Wouldn't that be a better use of your time?

    I will say that there have been times that I have learned certain things because of challenges here. The one that stands out the most is that the US funded bin Laden in Afghanistan. Totally wrong. Probably never known that if not for LVL, but I'm not sure those moments are enough of a payoff.

    Posted by srjenkins at 01/25/2009 @ 7:50pm

  143. Posted by srjenkins at 01/25/2009 @ 7:50pm

    Learning things like why the U.S. funded Osama and the Taliban/Mujahideen in Afghanistan can be enlightening. The U.S. also funded and supplied Saddam for many years. In fact most of those WMD that Saddam had were supplied by the U.S. We have a short memory. Discussing this is not a "colossal waste of time." It is essential. Discuss whatever you deem apropriate with your family. Daily affairs, the weather, whatever. Can you not walk and chew gum at the same time?

    And if you depend on LVL for your information, you are in trouble already..

    Posted by chaoszen at 01/25/2009 @ 8:08pm

  144. Phil.

    Your August 6, 2001 memo has taken on mythical proportions, and the significance of it has been way overblown over the years.

    It was not the smoking gun you profess it to be.

    1- It did not tell anybody in our government anything they did not already know.

    2- It did not in any way contain specific information about an attack, with regard to dates, times, locations, people who would be involved.

    The government was treating al-Qaeda as a threat, along with all the other threats that existed at the time and were being evaluated by the executive branch and the intelligence agencies.

    And the administration was reviewing the approach to these threats, with the goal of staying on top of them.

    The dots were not connected in many ways because there were no dots to connect. This is possibly due to the fact that effective "walls" had been created between law enforcement and intelligence agencies, with regard to the sharing of information. These were established during the previous administration (the Clinton administration), perhaps to "protect civil liberties".

    In addition law enforcement and intelligence agencies were reluctant to conduct much surveillance at mosques and even on chat rooms on the Internet, due to politically correct attitudes, and thus some dots may have surfaced to be connected had they not been adverse to doing that.

    The Bush Administration, through the Patriot Act, fixed those things. It was condemned for doing so.

    Thus, the classic damned if you do and damned if you don't - the Bush administration falsely condemned by people like you for not "connecting the dots" prior to Sept. 11, but then condemned by you for fixing the problem afterwords.

    Posted by sjchermak at 01/25/2009 @ 8:12pm

  145. Posted by ficheye at 01/25/2009 @ 7:48pm

    All of us, when we are in our right mind linger between hope and despair. That is the Occam's Razor of our existence. Like Newton said: "We are to admit no more causes of natural things than such as are both true and sufficient to explain their appearances."

    Hope and despair exist as two sides of the same coin (circle). Yin/Yang. As Pink Floyd said: "You decide which is right, and which is illusion."

    Posted by chaoszen at 01/25/2009 @ 8:19pm

  146. Phil,

    The Florida Supreme court made law from the bench by ruling recounting could continue.

    By Florida election law the election was to be certified and over. All the things that were to happen in an election that also resulted in a challenge had happened. Automatic recounting had occurred. The Gore team could not substantiate in court the need for manual recounting, and Gore wanted it only in limited areas to begin with.

    So election law said the election was over. If law says the election was over and a court says keep going, is that not making law from the bench?

    It seems Florida is not a good place for this stuff.

    According to Florida law, Terri Schiavo's wishes were NOT known to the standard required by the law. Her husband said she wanted the tube pulled, but the legal standards required by Florida law regarding the documentation of her wishes had not been met.

    Thus fundamentally there was no legal documentation of her wishes. As such, Florida law REQUIRED that doctors leave the tube in.

    Judges said pull the tube.

    If law says leave the tube in and judges say pull the tube, then is that not making law from the bench?

    These are two cases where effectively new law was made, because the law was clear as to what was to happen and judges said do the opposite.

    In one case, the ruling was overturned, properly so, and George W. Bush took the office he was rightfully elected to.

    In the other case, nobody stepped in even though people tried (and were condemned for doing so), and the will of the judges prevailed, and Terri Schiavo is dead.

    People think Florida is a great place to go and enjoy good weather and retire there, but I don't know about that.

    It seems in Florida you can't be sure that law in place to protect you will be allowed to actually protect you.

    Posted by sjchermak at 01/25/2009 @ 8:22pm

  147. <i>Posted by srjenkins at 01/25/2009 @ 7:36pm </i>

    To start off with, the assertion that judges do not employ a philosophy of original understanding is simply false; many do not, but many do. That's why this is a contentious issue to begin with.

    )n the "Constitution means what it is understood to mean" point. If by this you mean that Supreme Court decisions constrain other branches and lower courts, this is obviously true. However, you seem to take this farther and suggest that the Supreme Court is justified in making the Constitution mean whatever they want it to, which is just false. Some may defend it, and I note that you make no effort to (for good reason; it's dumb). On this line, could the Supreme Court justifiably say "35 years old, for the Presidency, really just means 20"? If we're dealing with a question of justification, I think this position is pretty obviously false.

    The consent argument is equally flawed, as is demonstrable by the same illustration. By your argument, the right to a trial by jury would not be binding if the Supreme Court chose to ignore it because no one living now consented to it. The current generation does not have to continually reaffirm consent to a law in order for that law to remain legitimate.

    Moreover, and I think this is a fundamental flaw with any non-originalist position, there is no functional difference between altering the meaning of a law and altering the law. So, if a law (including the Constitution) meant one thing when passed and ratified (which it by definition had to) and is later interpreted to mean something different from that, the latter interpretation changes the law.

    Posted by Thrawn at 01/25/2009 @ 9:17pm

  148. continued

    Here's another fundamental issue that I think comes out from your responses, which tend to be efforts to poke holes rather than defend a coherent alternative framework. If we both concede that the Constitution is law (and it must be in order for judicial review to be at all justifiable), we need some standard that can define what the Constitution does and does not protect/provide. I provide such a standard, and you have been completely unable to. The "whatever the judges think it is is cool" framework isn't a standard at all; it's a formula for a judicial branch which, unlike every other branch and in complete contradiction with the intention of those who designed and ratified the Constitution, would have very few limits on its authority to overrule democratic decision-making. What you are describing and apparently legitimating is an oligarchy, limited only by self-imposed criteria (like the political question doctrine) that your own framework provides very little reason to keep.

    What I find fascinating, though, is your stark realism about the law that especially comes out in your second post. If that is really all that the law is, and if the judiciary really is, as one theorist put it, a "naked power organ," than it seems plain that there can be no justification whatsoever for judicial review.

    If you don't care about justification, then I suppose that's a moot question, but I would certainly have thought that someone interested in defending that which is good and just and rejecting that which is corrupt or unjust would challenge an unjust system no matter how entrenched he thought it to be. Indeed, if this mode of thought is as entrenched as you say, that's even more reason to call it into question.

    Posted by Thrawn at 01/25/2009 @ 9:24pm

  149. continued

    Here's another fundamental issue that I think comes out from your responses, which tend to be efforts to poke holes rather than defend a coherent alternative framework. If we both concede that the Constitution is law (and it must be in order for judicial review to be at all justifiable), we need some standard that can define what the Constitution does and does not protect/provide. I provide such a standard, and you have been completely unable to. The "whatever the judges think it is is cool" framework isn't a standard at all; it's a formula for a judicial branch which, unlike every other branch and in complete contradiction with the intention of those who designed and ratified the Constitution, would have very few limits on its authority to overrule democratic decision-making. What you are describing and apparently legitimating is an oligarchy, limited only by self-imposed criteria (like the political question doctrine) that your own framework provides very little reason to keep.

    What I find fascinating, though, is your stark realism about the law that especially comes out in your second post. If that is really all that the law is, and if the judiciary really is, as one theorist put it, a "naked power organ," than it seems plain that there can be no justification whatsoever for judicial review.

    If you don't care about justification, then I suppose that's a moot question, but I would certainly have thought that someone interested in defending that which is good and just and rejecting that which is corrupt or unjust would challenge an unjust system no matter how entrenched he thought it to be. Indeed, if this mode of thought is as entrenched as you say, that's even more reason to call it into question.

    Posted by Thrawn at 01/25/2009 @ 9:24pm

  150. Sorry for the double; accidentally hit Submit twice.

    Posted by Thrawn at 01/25/2009 @ 9:25pm

  151. PAX!

    thanks so much. that was supergroovy.

    with quincy jones music, no less.

    alright, lemme see:

    "what on earth" hasn't been released, so watch this:

    http://www.nfb.ca/film/carts_of_darkness/

    awesome film.

    Posted by frosty zoom at 01/25/2009 @ 10:41pm

  152. It seems in Florida you can't be sure that law in place to protect you will be allowed to actually protect you. Posted by sjchermak at 01/25/2009 @ 8:22pm

    just ask the seminole.

    Posted by frosty zoom at 01/25/2009 @ 10:46pm

  153. Posted by chaoszen at 01/25/2009 @ 8:08pm

    Except there is no evidence that the U.S. gave any money to bin Laden. I looked it up. The best account you are going to find is Ghost Wars, and he explicitly makes this point.

    While it doesn't mean there weren't deals no one talks about, but the account from the US and from bin Laden himself is that there never was any support for him from the US. So, you cannot make this claim - since there is no evidence supporting you.

    The fact that you are learning it for the first time from me - is something you can thank LVL for as well.

    I'll leave off further commentary about your pendantic attitude for another time. If we had less of that around here, the quality of the discussion might move back to something that is more worth people's time.

    Posted by srjenkins at 01/25/2009 @ 11:09pm

  154. Posted by Thrawn at 01/25/2009 @ 9:17pm

    "To start off with, the assertion that judges do not employ a philosophy of original understanding is simply false..."

    Your claim basically helps me. You readily admit that some judges don't do what you say they do. Now, you are left playing the numbers game, but you don't have any. Not a particularly good position to be in.

    "However, you seem to take this farther and suggest that the Supreme Court is justified in making the Constitution mean whatever they want it to, which is just false."

    As before, I say they do as observable fact. The Supreme Court changes its mind. A lot. The fact that it doesn't make sense given your framework - further helps my argument that there are problems in your framework.

    "The consent argument is equally flawed..."

    The consent argument focuses specifically on the social contract about what the constitution means. So, if you redefine someone as an "enemy combatant", you don't have trial by jury - irrespective of that the Constitution says about it. If it is accepted by the population, then it's part of the social contract. So forth and so on.

    "...I would certainly have thought that someone interested in defending that which is good and just and rejecting that which is corrupt or unjust would challenge an unjust system..."

    The law is unjust. However, I can't pretend that something is or isn't - just because I don't like it.

    "So, if a law (including the Constitution) meant one thing when passed and ratified (which it by definition had to) and is later interpreted to mean something different from that, the latter interpretation changes the law."

    Exactly. That's what it does.

    Posted by srjenkins at 01/25/2009 @ 11:17pm

  155. Continued...

    Think about it is legislating based on specific application of law. Congress does broad strokes, the judicial branch does the detail work. But both legislate. However, each can't do the work of the other.

    "...which tend to be efforts to poke holes rather than defend a coherent alternative framework."

    I'm talking about the world as it exists. Not how I'd like it to be. Obviously, it "works" because it is the status quo. Defending it as something that is possible is pointless, because it is.

    "...than it seems plain that there can be no justification whatsoever for judicial review."

    Certainly not, if we take an originalist approach to the Constitution...because it's not in there. Which again, it shows a problem in your position. You can't argue that the framers wanted judicial review because its not there. So you are being schizophrenic and holding a logicall incoherent position. You want both judical review and literalism - but under literalism there is no judical review, unless of course you resort to some special reading that requires digging into meeting notes and not reading the Constitution based on what's actually there...and thereby confirming my very point. You want law to be what you want it to be. I don't like it, but that's the way the law works. And you either make the decisions or you are subject to them. Democracy has nothing to do with it.

    Posted by srjenkins at 01/25/2009 @ 11:24pm

  156. who cares?

    we've got legal python:

    http://ca.youtube.com/montypython

    Posted by frosty zoom at 01/25/2009 @ 11:46pm

  157. Posted by srjenkins at 01/25/2009 @ 11:09pm

    ???? You must be nuts! Of couse the U.S. funneled money to the Mujahideen when the Soviets were in Afghanistan. Are you that naive? We can't even begin to have a discussion when even common facts are not agreed on. Why do I even bother..

    You are not worth my time. Even when I was there 30 years ago there was U.S. money being paid. That was when the Soviets and the U.S. were competing to build roads. By the way, I drove on them. The Russian built roads were much better. Anyway, at that time the good ol' U.S.A was spending a bunch of money to keep people like me out. Anybody with "long hair" was not allowed in. Unless either they cut their hair at the border or paid a bribe. We have been chunking money at Afghanistan for decades.

    I know these things because I was there. I knew the drug trade. Hashish from Mazari Sharif was the best in the world. And fetched a high price in the markets in Europe. You don't know squat. Have you ever been trekking across Afghanistan in a Land Rover with a .30 calibre M1919A4 mounted on the front and the back? I doubt it. If you had, you might not speak so much from your buttcrack.

    Posted by chaoszen at 01/26/2009 @ 12:14am

  158. Posted by chaoszen at 01/26/2009 @ 12:14am

    Bin Laden is not the mujahideen. Yes, the U.S. supported the mujahideen. However, there is no evidence that bin Laden recieved U.S. money.

    I told you my source is Ghost Wars. Look it up. Do some research, and stop pretending you know much about the country just because you happened to be scoring drugs there in a Land Rover with an automatic weapon in it.

    That fact doesn't make you an expert. Nor does it impress me.

    Posted by srjenkins at 01/26/2009 @ 12:53am

  159. <i>Posted by srjenkins at 01/25/2009 @ 11:17pm </i>

    It's becoming more and more evident that the overwhelming majority of your position depends on normative considerations being wholly irrelevant. Quite frankly, I simply can't understand this. Why? If it makes a difference what kind of judging paradigm judges use to overturn laws, why in the world wouldn't this be an issue worth discussing?? And yes, no matter how many times you insist otherwise, there are a substantial number of judges who follow my paradigm much more closely than they follow whatever your paradigm is (which seems non-existent; what are you defending??)

    And here's the extra key: this isn't a numbers game at all. First, normative discussions matter even if NO ONE does what I'm defending. Bad things are still bad. In fact, as I pointed out, being in an extreme minority may be when this kind of thing matters most. Second, the MOST I'd have to defend is that some non-trivial number of judges (famous example to come later/tomorrow if you'd like) buy into the rough paradigm I'm defending. Empirical reality clearly bears that out.

    And no...courts reversing themselves isn't an argument against originalism because the interpretive phase still exists. Judges can still disagree on interpretations even if they agree on the major premise that they're using. That's fine; their source of law is still legitimate. Whatever source you're offering (and I STILL don't know what it is) lacks that legitimacy, and that's a problem. Again...bad things are bad.

    Next post deals with the normative responses

    Posted by Thrawn at 01/26/2009 @ 01:02am

  160. Continued

    On consent...no, this makes no sense. By that logic, my example holds true; the Supreme Court could say "35 really means 20!" and it would be completely legitimate. No. Moreover...how do you register consent, precisely, particularly when what people often care about is the political outcome of cases rather than the (actually important) legal basis for them. The judiciary isn't meant to be political, and shouldn't be politicized. That's the point of an independent judiciary. The catch is that this independence carries with it a responsibility to actually stick to the law rather than generating it yourself.

    Then, the "no judicial review in the Constitution" argument. Nope; Marshall actually defends it nicely in Marbury; the judicial power necessarily includes it because it is the province of the judiciary to say what the law is (they have to use the law when they decide cases, etc.). Plus, it was clearly in the original understanding of "the judiciary power" anyway, so this argument goes away.

    continued in only one more post

    Posted by Thrawn at 01/26/2009 @ 01:09am

  161. Continued

    I wanted to save some space for this, because I want to emphasize a crucial point in this discussion, revolving around the creation/changing of law.

    I've already clarified the distinction between making law in the sense of providing a minor premise and the Constitution supplying a major premise (legitimate) and providing a major premise (illegitimate). My argument is simple: the latter form is the only kind which could properly be deemed "judicial legislation" because the addition of a minor premise involves only application of law rather than its creation ex nihilo.

    Note also, and this is crucial, that there is a difference between what you call "creating law" and changing the meaning of the Constitution. We've already agreed that when enacted, it meant something. With that agreed, you make what I think is a hugely problematic concession:

    <<"So, if a law (including the Constitution) meant one thing when passed and ratified (which it by definition had to) and is later interpreted to mean something different from that, the latter interpretation changes the law."

    Exactly. That's what it does.>>

    This concession is absolutely crucial. When the Constitution delegates powers, it provides for two and only two means by which the Constitution may be altered: a constitutional convention and ratification by state legislatures. These are the only means by which the Constitution can legitimately be changed. This means that your framework is per se illegitimate because it effectively alters the Constitution without going through the only legitimate processes by which this can be done. The only way to generate new major premises for use by the judiciary is the two methods listed, and your system doesn't fit in that. Therefore, it's illegitimate.

    Posted by Thrawn at 01/26/2009 @ 01:15am

  162. The devil is in the details.National City Bank employs thousands in Cleveland.The Kucinich district includes this city.TheBANK was not allowed TARP money.The Tarp money was given to PNC to buy National.Now PNC says the puchase is lucrative.Kucinich needs support.

    Posted by worker-bee at 01/26/2009 @ 02:55am

  163. In addition law enforcement and intelligence agencies were reluctant to conduct much surveillance at mosques and even on chat rooms on the Internet, due to politically correct attitudes, and thus some dots may have surfaced to be connected had they not been adverse to doing that.

    The Bush Administration, through the Patriot Act, fixed those things. It was condemned for doing so.----Posted by sjchermak at 01/25/2009 @ 8:12pm |

    Wait a minute...I thought you guys claimed Bush WASN'T spying on Americans?!??!????

    Posted by Mask at 01/26/2009 @ 07:22am

  164. Bin Laden is not the mujahideen. Yes, the U.S. supported the mujahideen. However, there is no evidence that bin Laden recieved U.S. money. Posted by srjenkins at 01/26/2009 @ 12:53am

    Bin Laden joined the Mujahideen as a volunteer in 1979. The Carter and Reagan administrations both maintained a campaign of support and training for the Mujahideen. There was funding by U.S. government agencies and private agencies and think tanks. Bin Laden was a member of the Mujahideen at that time. Although he was largely self financed and supported by the Saudi and Pakistani governments he still would have benefitted from U.S. money and training.

    And no I am not an expert on Afghanistan, nor have I claimed to be. But I did learn a few things about the country while I was there. I didn't originally go there to "score some drugs". I went there to explore the country and people. I happened to fall into a line of work there that was a little unconventional.

    Posted by chaoszen at 01/26/2009 @ 09:56am

  165. I happened to fall into a line of work there that was a little unconventional.----Posted by chaoszen at 01/26/2009 @ 09:56am |

    "It makes, it doesn't make any difference to me what a man does for a living, understand. But your business, is uh, a little dangerous."---Don Vito Corleone

    heheh

    Posted by Mask at 01/26/2009 @ 10:15am

  166. Posted by chaoszen at 01/26/2009 @ 09:56am

    Ghost wars looked back through CIA documents, interviewed the people involved and tried to find prrof for this assertion, "he still would have benefitted from U.S. money and training," and was unable to do so.

    So, the question remains: What evidence do you have beyond making assumptions like the Mujahideen is/was a single coherent group rather than a disparate number of groups united by a common cause where some might benefit a great deal and some not at all from US aid?

    I think we can agree the Mujahideen are the latter. So, you might be able to make some argument that he may have benefited indirectly - and there is probably something to this claim - but this is entirely different thing from asserting that the US supported bin Laden.

    Posted by srjenkins at 01/26/2009 @ 10:19am

  167. Posted by Thrawn at 01/26/2009 @ 01:02am

    You are correct that I don't think normative claims are relevant when it comes to the law. We might wish that the law administered justice fairly and have ideas about how that "should" happen - but the bottom line is that it does not happen this way.

    Let me use an analogy. I may think that all people should be treated equally (which I do since it is one of the testimonies of Quaker faith). I may develop complex frameworks that show how this "ought" to be the case and how fantastic our world would be if people were treated equally - by the law, in social situations, or what have you.

    And like you, I would be annoyed if some person kept pointing out. Hey, the real world doesn't work that way. Look at the prison population. Look at the distribution of wealth. So forth and so on.

    Then, I could object that the person raising these objections isn't offering any moral system of their own. Don't they care about equality? Don't they care about people? Don't normative claims have any standing?

    Of course, they do. The problem is that the assumption that the entire framework sits upon - i.e. all people should be treated equally - is not empirically the case.

    Now, we could argue that it should be, but the problem in your argument is you are both making normative claims, AND you are saying that it is empirically the case. And every time I point out that it is not the case, you bring in your normative claims, do a little tap dance and then reassert that the world works according to your normative model.

    Example: "The judiciary isn't meant to be political, and shouldn't be politicized."

    Yet, it is. When they talk about judges, commentators regularly mention WHO appointed them and other political considerations.

    Posted by srjenkins at 01/26/2009 @ 10:34am

  168. Posted by Thrawn at 01/26/2009 @ 01:02am

    To your specific comments:

    "It's becoming more and more evident that the overwhelming majority of your position depends on normative considerations being wholly irrelevant."

    They are irrelevant, if the normative model is not nor is ever likely to be, the case. I could argue until I'm blue in the face that the world would be best if there was world peace. But that is a different matter that arguing that we have world peace. The problem in your argument is that you ARE trying to do both - provide a normative model and say that it actually is in place.

    "Second, the MOST I'd have to defend is that some non-trivial number of judges (famous example to come later/tomorrow if you'd like) buy into the rough paradigm I'm defending."

    Why is that? Either it is the case, all or perhaps most of the time, or it isn't. I'm asserting it isn't the case - even if a judge like Scalia pretends it is. That's the central issue - and probably not worth discussing beyond it.

    "Judges can still disagree on interpretations even if they agree on the major premise that they're using."

    And here we have it. Let's put an elabrote, unnecessary, viel of legitimacy and judges basically applying whatever interpretation that they wish to impose. Looks like legal realism to me.

    "...how do you register consent, precisely..."

    Well, since I (you or anyone else for that matter) never ratified the Constitution, what gives it legitimacy? Why am I bound by the ideas of men 200+ years ago, when they ratified the Constitution? Particularly when their ideas - such as slavery should be a tolerated institution - undermine notions in the Constitution that people should be treated the same under the law?

    Posted by srjenkins at 01/26/2009 @ 10:45am

  169. Posted by Thrawn at 01/26/2009 @ 01:09am

    "...the judicial power necessarily includes it because it is the province of the judiciary to say what the law is..."

    Which is exactly my argument. The judicary says what the law is. And if they want to say something is inherent in the Constitution that isn't in there, that's the law.

    "...When the Constitution delegates powers, it provides for two and only two means.."

    And just because the Constitution says something, doesn't mean that's the way it is. For example, feel free to discuss the Fourteenth Amendment and Jim Crow laws.

    "This means that your framework is per se illegitimate..."

    I don't have a framework. My sole concern is to show that your ideas - why admirable for their logical and normative character - don't describe the world. It's like a Tolkien novel of law. Interesting place, not the one we live in.

    As for where it is legitimate or not. It isn't legitimate, and you are free to tell that to your local judge before he tosses you in jail. Unfortunately, raw power is its own legitimacy. I don't like. Clearly, you don't like it. But, I believe, it is the case. Period.

    The main difference between you and I is that I'm not interested in a project of legitimizing the legal system. It is illegitimate. It is unfair. It is illogical, and it is the case.

    And the main problem I ultimately have with your position is that you aren't content to simply describe how you think the world should work, you actually argue that the world does work this way. To which, I state over and over, you're wrong.

    I notice that you skim over unfortunate facts like "enemy combatants", the Jim Crow, and so forth because these show it doesn't work as you say it does. You go abstract instead. It's a problem.

    Posted by srjenkins at 01/26/2009 @ 10:58am

  170. Posted by YourJomamma at 01/24/2009 @ 12:22pm | ignore this person | warn this person

    how long has that peace held? you mistake your pessimism for an argument. think again.

    Posted by emile duBois at 01/26/2009 @ 11:51am

  171. Yea, he gave us Iran ruled by Aytollah Khomeni and all the proceeding Mullahs with fanatic figurehead mouthpieces as its President!

    this sheer nonsense. Carter did not give us the ayatolla. these were events beyond america's control. they should have applauded the removal of the tyrannical shah, but he was "our" tyrant.

    the US did this over and over again, with predictably bad results. support the dictator, squash the people's movement.

    democracy cannot be imposed it must be grown.

    Posted by emile duBois at 01/26/2009 @ 11:56am

  172. One day Americans will get tired carrying the Racist Star of David on their backs and will ask Israel to go fly a kite. This will mean that Israel will lose its sole defender and that Israel will be rejected as an Apartheid entity in the same manner racist South Africa was rejected. Posted by CripThink at 01/24/2009 @ 10:21pm | ignore this person | warn this person

    this is purple prose and all nonsense. Israel's sole defender, whattaloadofcrap.

    Posted by emile duBois at 01/26/2009 @ 11:59am

  173. Posted by chaoszen at 01/25/2009 @ 7:31pm | ignore this person | warn this person

    oh please, you don't expect anyone to believe this camp fire tale. hahahahahahaha

    Posted by emile duBois at 01/26/2009 @ 12:01pm

  174. CripThink at 01:05am said:

    >> The American economics aid package to Israel is 2.8 billion Dollars annually. There is also separate military aid package.<<

    Our TOTAL aid to Israel, for 2008, was $2.8 billion. That INCLUDED military aid. http://middleeastdesk.org/article.php?id=104&printsafe=1

    Joint projects by THEL, Boeing, Raytheon, etc., with companies like between Rafael and IMI, exploit Israel's knack for developing cutting edge systems quickly and cheaply. We do it to advantage ourselves. It is ridiculous to call that foreign aid.

    And how do you know, $10 billion in tax exempt donations go to Israel, moreover, what do you care whether someone is encouraged to support a worthy cause in the US or in Israel? Incidentally, most of the giving by big Jewish philanthropists goes to non-Jewish causes.

    As to 1956, earlier you urged Obama to demand Israel leave, the way Ike forced her out of the Sinai within 48 hours. Now a threat of sanctions, after five months of stalling evicted them. What sanctions? In 1957 Israel received a total of $40.9 million dollars in repayable loans and foreign aid, and none for arms. US weapon systems were not being sold to her in any case. Even in 1967, when Israel fought the Six Day War her total US aid was $23.7 million.

    As to Israel retaining 25% of Gaza your btselem link makes no mention of it, and not even Hamas supports that lunacy.

    Your sneering, "Chosen few" comment is a lousy way to explain why your lack of bigotry, and your detestation of brutality, make you a supporter of Hamas shooting rockets into Israeli villages.

    Posted by Hugo_Pirovano at 01/26/2009 @ 12:51pm

  175. <i>Posted by srjenkins at 01/26/2009 @ 10:58am </i>

    The only empirical claim I've made is that some judges are originalist and some are not; this question is a live one that has been going on for some time, and which has attracted adherents on both sides. Legal realism can claim no empirical monopoly.

    At this point, it seems that the only argument you have left is that normative claims aren't relevant. If that claim goes away, your entire position falls apart because you have nothing that's at all compelling once it's gone.

    So why are normative arguments relevant? Let's take your equality example. Here's how the discussion you describe would and should probably go. First, you go "human beings ought be treated equally." Then you notice, "huh, they're not." The third step is generally, "well, OK, so what can we do to change that?" The process I have just described underlies all meaningful political movements ever. They don't just go "well gee, this sucks, eh, guess there's nothing we can do." They see the problems as reasons to try and CORRECT said problems.

    Posted by Thrawn at 01/26/2009 @ 1:03pm

  176. continued

    But let's talk about your political theory. If your entire framework is that we should observe the system to see what it looks like, nod solemnly, and then sit back and watch it work. If that's actually your position, I'm not sure what more I can say, except to suggest to you as an individual that it seems JUST a tad inconsistent with most Christianity-related traditions I've ever seen (and certainly the prophetic tradition in the OT).

    The only possible way your position can win out is if my position effectively collapses into legal realism. Your argument for this conclusion is surprisingly weak; your argument is literally that so long as judges can legitimately disagree AT ALL, originalism is just a veneer. Really? This is no different from saying, "well, if reasonable people can disagree AT ALL about ethical conclusions...moral philosophy as a whole is just a sham." That argument doesn't make any sense because the conclusion doesn't even remotely follow.

    So...originalism means something, is adhered to by at least some judges, and if legitimacy means anything, clearly wins out. Since you haven't provided any alternative framework for how a judge should and should not exercise their power, your entire position hinges on your claim that "oughtness" doesn't matter. Otherwise, you provide no reason why a judiciary is justified in acting in ways that violate the separation of powers as understood and enumerated in the Constitution, undermine the original meaning which clauses were understood to have and which judges have no right to amend, and bestow themselves with functionally unlimited authority despite lacking any justifiable claim to moral superiority over the elected branches whose decisions they overturn.

    Posted by Thrawn at 01/26/2009 @ 1:11pm

  177. I am in complete agreement with Kucinich! Regardless of any truce or peace agreement, aid for Gaza needs to go in NOW under the U.S. flag! Further, I am very tired of seeing U.S. military equipment being used to commit war crimes. I would like to see laws forbidding the sale or gift of U.S. military equipment to any and all foreign governments. I am sure there are many other sources, including Israel, for military equipment. However, I do not want to see taxpayer money supporting these types of activities.

    Posted by P. J. Casey at 01/26/2009 @ 1:55pm

  178. Posted by Thrawn at 01/26/2009 @ 1:03pm

    Unfortunately, you are both making an normative claim (literalism should be the standard) and an empirical claim (literalism is the standard).

    I am attacking both, but primarily the second.

    I question the basis for your normative claim. I have pointed to obvious counter-arguments from the traditions of Living Constitution, legal realism and elsewhere. I don't think you are being clear about judging outcomes beyond trying to be logically consistent. But, it is easy to imagine many circumstances where the application of your framework and logical consistency creates injustice.

    For example, prior to the Reformation amendments, a judge in Massachusetts would have to accept slavery as the law of the land even though it was effectively abolished by the state's Constitution. But, this is another example of a specific problem that comes from your framework that you will try to avoid by turning it into an abstraction.

    "The only possible way your position can win out is if my position effectively collapses into legal realism."

    Not that I agree with this premise. But, your position does collapse into legal realism. It's a nice little rationalization, nothing more.

    You get the essence quite nicely. There is something different about moral philosophy and law as concieved under originalism, the difference is that moral philosophy acknowledges that there may not be a "right" answer. However, originalism, by definition, asserts that there is one. If you have differing ideas of originalism, then it pretty much undermines the logical basis for it.

    Posted by srjenkins at 01/26/2009 @ 2:10pm

  179. Continued

    "So...originalism means something..."

    Something? Something different depending on who is doing the reading? It's like literalism and the Bible, and like Biblical literalism that perports to make understanding the Bible easy does the exact opposite.

    My alternative framework is that judges should be just. Solomon asks for the baby to be cut in half and ultimately dispenses justice beyond what is available in rote following of law books.

    Law and justice isn't an algorithm. Just at moral philosophy isn't merely a Leibnitz calculation. My system, if you want to call it that, is to expect a judge to use his judgment.

    I'd rather we just acknowledge that is what is going on, rather than make up fairy tales about how judges reach their decisions or pretend that our Clockwork Orange fabrication is somehow better than people making decisions based on the evidence before them and what is right. That's the idea behind trial by jury. That SHOULD be the idea behind the sentencing.

    However, it often isn't because someone's got some broken model in mind, trying to pretend they understand what the founding fathers might think in this particular case. Or their notion of "right" hinges on prejudiced ideas about minorities - but that's still there even with a veneer of literalism hiding it.

    So, the only improvement your framework offers is rationalization and cover-up. I'll pass thanks.

    Posted by srjenkins at 01/26/2009 @ 2:21pm

  180. Posted by Thrawn at 01/26/2009 @ 1:11pm

    "I'm not sure what more I can say, except to suggest to you as an individual that it seems JUST a tad inconsistent with most Christianity-related traditions I've ever seen (and certainly the prophetic tradition in the OT)."

    Oh, one other thing, if you want to make this about religion, I think I can suggest several passages where Jesus offers criticism regarding the Pharisee's rigid formalism toward the letter of the law that would be well worth your reading.

    Posted by srjenkins at 01/26/2009 @ 2:53pm

  181. <i>Posted by srjenkins at 01/26/2009 @ 2:10pm </i>

    First, I want to hit the injustice point. You say there are many cases where serving the letter of the law can create injustice (ex: slavery). I completely agree, but if you want to flip it, take a look at Dred Scott. The Constitution nowhere provided for the guaranteed property right that Taney found; it was based purely on his own moral preference inserted into the document. This is where the "why should judges be assumed morally superior?" argument comes in; the only real conclusion of your position here can be oligarchy, not a democracy or a republic.

    I'm not entirely sure why my position collapses into legal realism, either. It seems to rely on your later premise that originalism means that there can be only one true answer in any given case. Not necessarily, but it DOES imply that there are definitely boundaries to what decisions are reasonable. There are wrong answers. Suggesting that capital punishment is cruel and unusual on its face (independent of specific implementation) is plainly incorrect. Originalism at the very least gives us some standard by which to judge decisions, whereas the only decision calculus you can offer is either OBJECTIVE justice (often a subject of legitimate disagreement) or the judges' SUBJECTIVE perception of justice (not open to disagreement at all).

    In addition, much of my main normative analysis remains untouched. You've given me no basis for believing that a judge's moral convictions are not only law, but sufficiently strong law to OVERTURN legislative enactments. You've also given me no limiting principle whatsoever; I at least provide that. To the extent that you have a normative position, originalism clearly seems to win out.

    Posted by Thrawn at 01/26/2009 @ 4:39pm

  182. Continued

    I want to briefly hit three arguments you make on the merits, and then move to whether rightness matters. You insist that originalism is a "cover-up." In order to make this claim, you have to show that it is NECESSARILY this way, not just that people abuse it, and I don't see why that's the case (see capital punishment). You also try and reference arguments you've made before, but I've already preempted and answered them. All of those theories both provide no basis for judicial review and lead to conclusions that we would both view as absolutely absurd (ex: 35=...25!").

    Also, on the Pharisee thing...there's a difference between religious law and human law. The notion of limited judicial review comes partly out of a desire to limit governmental power (of ALL forms) and is distinct from people assuming that certain ritual works get you into heaven.

    Most of your argumentation seems concentrated on the question of whether normativity is actually relevant here. Importantly, though I do argue that a non-trivial number of justices does what I say they should do, that claim ISN'T at all essential. I would contend that if originalism is right and everyone else does adheres to some other theory, we should STILL argue for originalism. The only relevant clash on this front, then, is whether normativity matters.

    Frankly, I'm still surprised this is an area of clash. Not to be a broken record, but it just seems like good things are good. Look, I don't understand how you can possibly maintain the "this is how it works...therefore fine" position without rejecting virtually all forms of social improvement. The very kind of reasoning you reject is CRUCIAL to these improvements, and to meaningful reflection in general.

    Posted by Thrawn at 01/26/2009 @ 4:49pm

  183. Jut in a nutshell, then, here's the structure I'm defending. If we accept that rightness matters, originalism makes the most sense as a framework that judges ought apply when deciding whether or not to strike down a law. There are two questions that are relevant whenever you're trying to make that call:

    1) Is the Constitution law?

    The answer seems clearly...yes. Otherwise, it has no binding impact on different branches of government. Moreover, if it's not law, there's definitionally no basis to overrule laws on the basis of "unconstitutionality."

    2) What does the Constitution mean?

    I make two broad sub-arguments here:

    a) The Constitution meant something when enacted. There were major premises that were established and could then be applied to the particular cases that came before a judge. The judge's role, understood to be limited, was to evaluate the case in light of the premises the Constitution gave him or her. To change a major premise from A to B is to both usurp the legislative power and amend the Constitution outside of the legal means by which that can be done.

    b) The Constitution does not mean what the judge thinks it ought to mean (which sounds like your "justice" paradigm). When judges make that claim, they effectively write their own Constitution. Because their views cannot be considered "super-law" in the way that the Constitution itself can, those views do not justify overturning laws of elected representatives.

    Simply put, the judge has no basis for substituting his or her own moral convictions for what the Constitution provides and what the people vote on.

    Posted by Thrawn at 01/26/2009 @ 4:56pm

  184. Posted by Thrawn at 01/26/2009 @ 4:56pm

    We are talking past each other. You are not delinating between your normative claims and your empirical claims. I am. You aren't addressing the specific flaws in your program or it's injustices. You aren't providing any metric for "better" - which I would judge based on utilitarian grounds and I presume, you would judge based on logical consistency.

    You also bring in weird, unnecessary concepts like the whole "judges are morally superior" argument. Obviously, it's false. The only thing special about judges is they are in a position to make the call. They aren't infalliable and since morality isn't a consideration to appointment (politics is however), I don't think it even makes sense to talk about this point - yet you try to bring it in at every oppportunity. I think of it as an artifact of your framework, and it has nothing to do with anything I've ever said.

    Then you add in statements like this one: "Suggesting that capital punishment is cruel and unusual on its face (independent of specific implementation) is plainly incorrect."

    Personally, I don't think the state should be in the business of killing people, particularly in a criminal justice context. The only way you can make such a statement is if you fetishize originalist interpretations of the Constitution and make your ideas about what the founders considered appropriate trump modern ideas of limits on state power that come from experiences of the Holocaust and so forth. It's the kind of moral error that is part and parcel of originalist interpretations that makes me so opposed to them.

    Posted by srjenkins at 01/26/2009 @ 6:06pm

  185. "Also, on the Pharisee thing..."

    You brought religion into the picture, not I. You know as well as I do that Christ has quite a bit negative to say about literal interpretations of the law, that violate the spirit, and I'd eat your lunch in any debate on that topic.

    "...whereas the only decision calculus you can offer is either OBJECTIVE justice (often a subject of legitimate disagreement)..."

    There is no such thing. That's my point.

    "You've given me no basis for believing that a judge's moral convictions are not only law, but sufficiently strong law to OVERTURN legislative enactments."

    The whole idea of activist judges is an argument that exactly this is happening. Not that I want it to be happening, which I view as an artifact of your unwillingness to differentiate your empirical and normative claims.

    "Most of your argumentation seems concentrated on the question of whether normativity is actually relevant here."

    Most of my argumentation is focused on your framework. The problem in this discussion is that I understand your framework. I'm pointing out problems. And you are not letting your mind accept the problems in it.

    Instead, you want to make it about me. What about my framework? Why don't I think normative claims are involved? Etc.

    I'm pointing out problems in your thinking. I don't have to establish a position, and it is not a contest. You have serious flaws, and you need to address them, but you are too busy trying to make up a position for me or dismissing the issues to actually look at these problems and say, "Hey, I do not have any data that suggests that judges do make decisions the way I think they do. So, that part is weak." Or, "The range of interpretation might be enough to undermine the benefits of a literal approach."

    Posted by srjenkins at 01/26/2009 @ 6:19pm

  186. I could go on, but really, what's the point? You've got religion about Constitutional literalism, and you seem to be invested in it.

    I don't have religion on legal realism. If there was a system that described the world better, I'd go with that. But yours doesn't describe the world I know at all.

    I've sat in jury boxes with judges that insisted that if the law says touching someone's toe is battery, then I must pass a guilty verdict if the facts say the toe was touched. Irrespective of my sense of justice regarding the case.

    That's the problem with legal literalism, for juries and for judges. It's the problem in mandatory sentencing. Further, these ideas that you have a just, rational system only serves to hide the deep seated prejudices and politics that are behind decisions and give them an air of legitimacy.

    It all stinks, when you look at it in the light of day and get down for a moment from the ivory tower and the Platonic ideals about how things work. You illustrate this point nicely by your inability to address the specific points like how can there exist Amendment 14 and Jim Crow laws if judges work the way you say they do. Silence.

    But, you do bring in Dred Scott. Fine. Obviously, legal realism isn't pretty and has its flaws - but at least its a view that isn't legitimizing judge's prejudices. It least it puts the unpleasant truth before people and let's them look at each decision and independently evaluate it without the judge hiding behind the Founding Fathers to justify his racism or his barbaric ideas about capital punishment. We know to look for it, because the perspective acknowledges faulty judges and faulty judgement - and doesn't try to rationalize it.

    To me, that's like a breath of fresh air.

    Posted by srjenkins at 01/26/2009 @ 6:29pm

  187. Is that why there was a flood of emigres from Iran after 1979 to escape this people's revolution? Posted by lvliberty1 at 01/26/2009 @ 1:04pm

    the rich people always run fastest.

    Posted by frosty zoom at 01/26/2009 @ 9:40pm

  188. I agree that we've started to talk past each other to a certain extent, but I actually think that's starting to decrease a little bit. I think you're starting to gravitate more and more towards the moral part, which is frankly where I think the more interesting stuff is.

    I think it's important, though, to remember what exactly we're talking about here. I brought in religion because I find the idea of "no objective justice/morality" and "no reason to challenge bad things" to be very strange propositions given that framework. That's where it applies. What you're talking about is dealing with God's law, not ours. The problem I read, unless I'm missing something, was assuming that God's will could be captured in a set of strict rules rather than a broader notion of love for one another and for him. I don't think that has anything to do, though, with interpreting the laws that human beings make.

    Honestly, I realize that what I'm defending does seem against our intuitions in some ways. Imagine that you're a judge, and you hear about some law that a state passed which imposes a flat tax on the state's citizens. Say you're fairly liberal, and the law sounds abhorrent because you think it's unfair to poor people. You really don't like it, so you want to strike it down. Should you? What about other cases, where it's a little less clear?

    I'm asking you as the judge to step back for a minute, and ask a very simple question: what gives you the right to strike the law down? Sure, you've been put there to evaluate the law and decide cases, but surely that doesn't mean you just get to do whatever you want. That's not why you were put there. Instead, you have to decide what's an appropriate use of your power and what isn't.

    Continued

    Posted by Thrawn at 01/26/2009 @ 9:47pm

  189. So you go back to that obnoxious law, one that you clearly think is unjust. What do you do with that? Do you stop there? I'm saying that you shouldn't. Remember that you're given the chance not just to make an affirmative declaration of law, but to strike down what elected representatives thought was a good and just law. So what I have to ask is...what gives you the right to tell them that they can't pass that law? We've both agreed that it's not some kind of superior moral wisdom. But if that's the case, where does your right come from?

    I think the biggest clue is in the justification that everyone, to one degree or another, uses. It's unconstitutional! You strike down laws because they're unconstitutional, which means that the source of authority is the Constitution. Unless the Constitution contains your specific notions of justice, you then don't have any right to impose them on a population that disagrees.

    So the next question is...what does X part of the Constitution mean? I'd argue that it means what it meant at the time it was enacted, for two reasons. First, that's generally how we judge all other kinds of statutes, because we say that people have the right to put particular things into law, and they do just that. Second, X part meant something when it was passed. If you say that it means Y, you're changing the meaning, and the judicial pen isn't one of the ways the Constitution provides to do that.

    Posted by Thrawn at 01/26/2009 @ 9:54pm

  190. Continued

    I have to make a bit of a confession here. As you say, I do tend to believe fairly strongly that this view is right. Try as I might (and sometimes I've tried awfully hard), I just can't get around the reasoning.

    The most interesting objection I've seen here is the "masking" argument, which is a very legitimate concern. If originalism can give you multiple answers, why not think people just pick the ones that reflect their prejudices anyway? I think that's a real concern, one that I'm not sure there's any way to get rid of. In light of that, just being honest and abandoning pretense might sound kind of alluring. I don't think it is, though, and let me use an analogy to illustrate.

    Human beings are capable of a lot of awful things, even when we don't want to and even when we know those things are wrong. In that sense, we're hypocrites. However, there are two ways to deal with hypocrisy. One is to throw off the whole thing and just say "eh, we're all self-interested anyway, why even bother trying to be good?" The other is to acknowledge that you're going to do wrong, but still do everything in your power to do the best you can. I think a similar argument can be made here. Even if done with a careful effort to eliminate one's own biases, originalism can sometimes mask prejudices just like affirming moral truths can mask our own corruption. I just don't think that the answer is to abandon the effort entirely. Instead, you recognize that there'll be bias, but you do the best you can to work with it.

    I think your fear of bias is a good reason to scrutinize opinions that claim their origin in original intent. I don't think it's a reason to scrub the whole system.

    Posted by Thrawn at 01/26/2009 @ 10:01pm

  191. Posted by Thrawn at 01/26/2009 @ 9:47pm

    There is nothing inherently just or moral about the Constitution. I also have never made a claim that morality doesn't matter. I've made a claim that the supposed superior normative claims you are making are irrelevant because they aren't the case. Further, I contend, I don't believe your framework would lead to more just outcomes, if it were to exist. I also contend that it is just an elaborate cover story that collapses into my position when you give it scrutiny.

    I'm more interested in getting you to acknowledge that your system doesn't describe the real world. So, talking about normative claims is not helping me accomplish that; it's a distraction.

    As for religion, I think Jesus' point about Hebrew law is just as relevant to American law. Justice is justice, and good is good - as you phrase it. Talking about God's and man's law is a false dichotomy. It's either just or it isn't.

    "The problem I read, unless I'm missing something, was assuming that God's will could be captured in a set of strict rules rather than a broader notion of love for one another and for him."

    Precisely! If we substitute legislator's will for God's will and administering justice for "love for one another and for him", then we have one of my criticisms of your position.

    "Imagine that you're a judge..."

    A judge has to rule on a specific case. They don't have that kind of lattitude. They have the fine brush, not the broad brush. There are also traditions of common law that makes this position difficult to plausibly maintain - particularly since we know that any ruling of that sort would be appealed. You'd have to make something that would convince the judge after you. That's the sane limits built into the system.

    Posted by srjenkins at 01/26/2009 @ 10:33pm

  192. Continued...

    To put it another way, it is the judiciary, as a body, that legislates - just as Congress as a body does. Individual judges don't have that kind of power when it comes to making judgments that have larger application - anymore than individual Senators or Representatives.

    "...what gives you the right to tell them that they can't pass that law?"

    My ability to make a convincing argument that has precedent in common law and that I can get other judges to buy - without being able to influence them directly. That's a very difficult task, that gets easier the higher you go (fewer reviewers) - but then again the range of cases and the points of contention get smaller as you get higher too.

    I've made this argument before and it is more of a positive framework - but it too is problematic.

    "I don't think it's a reason to scrub the whole system."

    Which brings me back to the point that it is not the current system. I've articulated another conception of how it does work. I'm sure there are others. But, I don't think there is a lot of evidence to suggest it works the way you say it does. So, we aren't scrubbing anything - because it's not there to begin with.

    Posted by srjenkins at 01/26/2009 @ 10:41pm

  193. Since you keep wanting me to describe the real world, though I think to an extent I already am, I'll go ahead and engage your empirical claim directly. There are really two questions. One, are any meaningful number of judges originalists? Well...yes. Empirically this is true. The better question is...are they honest originalists or just using a smokescreen? Now, it's crucial to note here that simply showing some level of hypocrisy/bias isn't good enough. I admit that bias exists, but that doesn't indict a whole position. The way you deal with bias is to minimize it as best you can; corrupt originalism should be attacked just as much as openly implanting one's own moral philosophy into the law.

    No, the real question is whether any originalists really mean what they say. If you look throughout records of cases, you'll find times when judges really struggled with something they thought was unjust. Specifically as concerns our discussion, federal circuit judges have often wrestled a lot with laws that just seemed wrong, but against which they could find no provision of the Constitution. It's not just that a literal reading gave the law a technical excuse; the basis to overturn the law was completely nonexistent. Some of them have given in and overturned the law anyway; I'd argue that this is where much of substantive due process (an intuitively silly concept) comes from. But at the same time, you had judges who refused to do this. Whether in vigorous dissents or in firm majorities, you'd have opinions that said, "we can't write this contract for defendants," or "they're completely within their rights, even though we hate what they're doing." Look all over the place and you'll find both. It's an ongoing discussion, far from definitive resolution.

    Posted by Thrawn at 01/26/2009 @ 11:48pm

  194. As far as the theory goes, a discussion which I'm really enjoying by the way, I think the question of justification still looms large.

    I recognize that justice may not always be found in looking at the strict letter of the law rather than justice, but it isn't nearly that simple because this isn't just about the letter of the law at all. What's really going on is that the legislature wants to enact one notion of justice and I, with a different concept of justice, want to not only say that what they're doing is wrong but to actually tell them they can't pass that law. You keep saying that this right comes from "making a convincing argument," but that only begs the fundamental question: what should make an argument in this forum convincing? Or put differently, what kind of argument should be convincing? What kind of rationale justifies me acting in the way I am?

    You keep wanting to dismiss the moral superiority issue, but it's absolutely huge. This isn't letter v. spirit, it's the question of what gives a judge the right to say that when his morality and the morality of a majority conflict, his should trump.

    I get confused when you say that the judiciary should legislate. Really? When the legislative power is explicitly delegated exclusively to the elected branches? And even if they should legislate, why, again, do they get to tell the legislature no? Even if one judge can't dictate to the whole country and has to persuade other people, there's still the question of why THEIR shared moral judgment should be more important than the judgment of the people. I have yet to get that. Judges have to rule on what the law is. The Constitution isn't a blank vessel which they should fill up with what they would like it to be.

    Posted by Thrawn at 01/26/2009 @ 11:57pm

  195. I almost think that the real question is this: where does the judge's authority come from? What is it that vests him or her with the legitimate authority to tell the legislature where to get off.

    The authority doesn't come from the judge him/herself. It comes from the law that the judge seeks to apply. The relevant question is thus not what the judge believes ought be done, but what the law says ought be done; those aren't the same thing unless the judge has a legitimate right to declare the law as being identical to their will.

    So what law are they applying? The very definition of the judicial power as originally understood was that the judges had to evalute conflicts of laws. When a "higher" law clashed with a "lower" one, the higher law trumped. Well, what's the higher law here? Not the judge's moral will; it has no precedence over that of the people. The Constitution is that "higher" law in that it is the supreme law of the land. The only remaining piece is justifying the use of the original meaning, and that comes from the argument about amendments.

    I don't deny that a nonoriginalist framework can be really tempting, especially when it looks like the legislature screwed up. Frankly, a lot of times they do. But that isn't enough. Remember that when I strike down the law, I'm making a claim that my will supercedes theirs. That's a pretty awesome claim to make, and one that I think judges should be extremely wary of if they hold any belief in self-government. Overturnings of decisions by constitutional amendment are virtually nonexistent. A Guardian on a leash is still a Guardian, except that when they get it wrong, there may be no practicable remedy.

    Posted by Thrawn at 01/27/2009 @ 12:05am

  196. Posted by Thrawn at 01/26/2009 @ 11:57pm

    "One, are any meaningful number of judges originalists?"

    Even Scalia recognizes that only a few judges identify as originalists, which is partly why he spends so much time promoting the idea in law schools. I don't know what you consider meaningful, but they are certainly a vocal minority.

    "The better question is...are they honest originalists or just using a smokescreen?"

    The whole idea of originalist vs. bad originalist. It's all bad because it's all guesswork. The problems of original intent vs. original meaning, the question of emphasis within the interpretation, and placing it within the larger framework of law all comes down to personal preference.

    I'm sure that people like Scalia are honest originalists. They just are engaged in an enterprise that's like squaring the circle. There is no way to do it without smuggling in your beliefs, and in the process, you fool yourself into thinking you aren't doing it.

    So, there is effectively no way to "minimalize" the problem.

    "...the real question is whether any originalists really mean what they say. "

    No, I think the real question is whether they can do what they say they can do. The fact that there is so much variablity in originalist answers to the same problems, is strong evidence that the answer is no.

    "It's an ongoing discussion, far from definitive resolution."

    And for other views on it, you might consult works like Supreme Court Justice Stephen Breyer's book - Active Liberty: Interpreting Our Democratic Constitution. He argues that originalist construction undermines basic democratic participation partly because it chains us to outdated meanings.

    "I think the question of justification still looms large."

    I don't. While I appreciate democratic principles, I also appreciate Madison's argument in Federalist Paper #10 that talks about the problems of faction in democracies and the tyranny of the majority.

    I think the judiciary is a legitimate means through which a republic protects minority rights. There are democratic checks on the power of the judiciary (from Constitutional amendments to modifying the law), and there is a obvious need for judges to interpret cases. The later serves as all the justification they need.

    "What kind of rationale justifies me acting in the way I am? "

    A concern for administering a fair and just outcome in a particular case or developing a fair in just legal principle that other judges can agree on.

    "I get confused when you say that the judiciary should legislate. "

    I'm being loose with the semantics to eliminate the kind of silly back and forth that goes on about activist judges. I just grant the point. The responsibility is for judges to apply the law, which means assigning it meaning in a particular instance. This has a legislative aspect to it. It is also their responsibility to apply it, which has an executive aspect to it.

    But, in both cases, they are limited in what they can do as they provide checks on the two other branches of government. It applies the other way too.

    In some respects, prosecutors act as judges when they make decisions to prosecute cases or not. When Congress passes mandatory sentencing guidelines, they are effectively acting as a judiciary.

    These lines that we like to draw between the different branches of government as checks and balances are not clean cut. It's merely a useful abstraction, but it doesn't necessarily represent reality.

    "Even if one judge can't dictate to the whole country and has to persuade other people, there's still the question of why THEIR shared moral judgment should be more important than the judgment of the people. "

    Madison's Federalist Paper #10. It's undemocratic, but it is there for good reason.

    "The Constitution isn't a blank vessel which they should fill up with what they would like it to be."

    Which they don't do. They have to make arguments that are plausible. That won't cause Congress to come pass a law that undermines the ruling, that won't get them impeached or removed from office next election (if they are that kind of judge). There's many different influences involved - beyond merely the law or our philosophy concerning it.

    "Where does the judge's authority come from?"

    The need for someone to interpret and apply the law. Their authority comes from that need - which you see codified in the Constitution, developed in common law and shaped by popular conceptions of what is just. Their authority comes from their knowledge and their position.

    When a judge lets police officers go free who have committed abuse, the potential for negative consequences (where they are bad press, political calls about "activism", riots or whatever) or also part of the decision making process. I don't see how you can pretend these factors don't matter and law is simply a legal calculus because that doesn't fit the facts.

    "That's a pretty awesome claim to make, and one that I think judges should be extremely wary of if they hold any belief in self-government. "

    I believe they are very aware and wary of doing anything that is going to get a strong reaction from politicians, people on the streets or the elites in this country. Balancing all these interests and coming up with workable solutions is their job.

    Posted by srjenkins at 01/27/2009 @ 1:10pm

  197. The first question I want to wrestle with, since it looks like the most important, is whether true originalism is even possible. Clearly, if it isn't, none of my arguments even matter. However, I think it is. Let's take the example of capital punishment. Is it possible to evaluate whether the original understanding of capital punishment was that it wasn't on its face unconstitutional? Yup; you don't even have to go past the text for this one. When it says that the state can't deprive you of "life, liberty or property" without due process of law, the clear implication is that the state is not per se banned from depriving you of life, liberty or property; they just have to do so via due process of law (this is also why substantive due process is ridiculous).

    Sometimes, though, it's more challenging. This is where, in a lot of cases, you have to do analytical work to find out what it would originally have been understood to mean (an understanding that at least to some degree exists, by the way, unless you think it was unenforceable when enacted). This middle ground of murkiness is where bias is most likely to creep in, and I recognize that danger. That doesn't mean it has to determine the judge's judgment; absent this framework, it will ALWAYS determine the judge's judgment.

    And sometimes, you can't even get a clue as to what a clause originally meant. In that case, the statute stands. If you find an inkblot on all copies of a statute, you don't get to infer what Congress meant just because you're sure they must have meant something.

    So can judges be historians? Sure they can. We expect them to do this already whenever they're applying something that can ACTUALLY be considered common-law (con law does NOT fit this description).

    Continuing

    Posted by Thrawn at 01/27/2009 @ 10:18pm

  198. So...if originalism is possible, what makes it better?

    Having done one thought experiment, let me try what I think is an even better one. Suppose that when we broke from our British...friends, we decided to emulate their system in one particular way: not have a written Constitution. We would still have a legislature and courts and all that, but just no written document that explicitly lays out the system. If this were the case, and judges were appointed as they are today, it seems blatantly obvious that we would have no judicial review. Why? Because the judges would then have no "higher law" to draw from if they wanted to strike down a legislative enactment.

    Despite your protest, the alternative to originalism really does seem to be a treatment of the Constitution as a blank slate into which you can pour your own particular vision of the society. Your claim that judges have to make good arguments simply begs the question as to what a good argument in this context IS. My point is precisely that arguments with the judge's (or whole panel's even) own philosophical inclinations as a major premise are not good arguments on which to base a decision.

    And what else can we mean when we say that originalism is faulty because it chains us to "outdated" meanings? Outdated in what sense? It's not that they don't keep up with technology; application of existing principles to new situations is a natural function of law. Rather, the claim here is that the principles are outdated. To whom? Well, not to the society, not if they've chosen to reflect those principles in legislation. The answer, then, can only be that they are outdated to the judge, i.e. the judge has his own philosophical opinions which he thinks superior to those of the ratifiers.

    Posted by Thrawn at 01/27/2009 @ 10:26pm

  199. Next, what about the division between branches of government? You contend that roles are already mixed anyway, but none of these "mixtures" are actually real. Judges are expected to state the law, but not to create it, so this conflation with legislation is false. The prosecutor does not act as judge when choosing whether to prosecute; he or she remains, at all stages, an interested party and advocate rather than an impartial adjudicator and applier of law. The sentencing guidelines are more interesting, but are no different than Congress' definition of crimes to begin with. Finally, though, even if there's some overlap between the branches, there is one power that is EXPLICITLY left out the hands of judges: the power to amend the Constitution.

    In fact, you make this point very nicely yourself. You say that constitutional amendments are meant to check the Court. One, if it's meant as a check on the Court, it seems obvious that the ratifiers certainly didn't expect the Court to be doing this themselves! A power meant as a check isn't duplicated in the branch you're supposed to be checking. Secnod, this only works when the Court acts with regard to original intent rather than its own will because otherwise, the Court can just construe THAT as it chooses. If it's to act as just one faction in a system, why not? It is, after all, the final voice on what the Constitution means. By your logic of "do whatever you can get away with" (which is what converting factions into a normative argument really means), the Court is virtually uncheckable. The only check remaining is impeachment...and it's almost nonexistent. Only one judge ever impeached? Yeah, not much of a check.

    Posted by Thrawn at 01/27/2009 @ 10:33pm

  200. The final point I want to make deals with the common-law, because I think it's actually a perfect illustration of my position.

    The common-law exists, and it has existed for a very long time. Many times, it's codified by bits and pieces into a statute. Sometimes, judges will read parts of the common-law into a statute based on arguments that the ratifiers meant to incorporate the common-law into what they wrote (note: ratifers' intent seems awfully important here; why not in the supreme law?)

    Suppose, though, that the common-law says X, and a judge feels like the common-law rule is morally correct. The legislature decides to pass a statute that explicitly rejects the common-law test in favor of a different one. The judge doesn't get to re-apply the common-law and overrule the statute in the process.

    But why not? The grounds on which he does so are no different than those which a non-originalist uses to declare a law "unconstitutional": his own sense of morality. If anything, they're stronger because they also have some weight of history behind them. In no way can the source of authority for the second judge be any superior to the first, yet we all say that the first judge is CLEARLY unjustified in overturning the law rather than accepting it as it is. So why is it any different for the second judge?

    The Supreme Court is not simply there to protect minority rights; if so, it should consistently rule against majorities. It's there to adjudicate the law as it applies to majorities and minorities respectively. They have no right to decide for themselves, despite democratic majorities, what they would like that balance to be. Unless the document as originally understood says otherwise, the majority's will stands.

    Posted by Thrawn at 01/27/2009 @ 10:43pm

  201. Posted by Thrawn at 01/27/2009 @ 10:18pm

    Capital punishment and issues around equal treatment of gay people under the law is a good example of the issue of outdatedness in originalism. It also brings in one of the central problems in the theory - whether to be an originalist of intent or meaning.

    I would argue, for instance, that an originalist interpretation of the Constitution is that there is nothing specifically about capital punishment or gay people in the Constitution. It says nothing specifically about them. The framers intended on creating a government that would replace the Articles, and while they may have had ideas regarding capital punishment or gays, they didn't put it in there. In other words, there is no law and it devolves to the states.

    But, that's not what you did. You looked for a legal principle based on implications from the text - so then you run into problems.

    Could it be that the Framers only intended to establish a judiciary rather than specifically outline a federal justice system or the characteristics of that system?

    Is it also not true that District Attorneys were "to represent the United States in court to whose duty it shall be to prosecute in each district all delinquents for crimes and offenses cognizable under the authority of the United States, and all civil actions in which the United States shall be concerned..." The universe of what falls under the "authority of the United States" is a rather limited set of offenses: insurrection, treason and the like. They certainly weren't thinking of a federal crime being what it is today.

    Then, there are factual questions. Can you tell me how many capital offenses were prosecuted by District attorneys - at or near the establishment of the Constitution?

    Can you also talk about why hanging is only still allowed in Washington and New Hampshire? Could it be that popular ideas about hanging is that it is wrong - perhaps even cruel and unusual? And if so, why should the Founders definition of what is right or even cruel and unusual by the standard when they didn't have options such as lethal injection?

    What about the fact that a statistically significant portion of the population of people executed by the state were black? Doesn't this violate equal treatment under the law by the Fourteenth Amendment?

    I could go on all day. The point is that when you look at "The Constitution", even when trying a strictly originalist interpretation -- you find there what you want to find.

    Posted by srjenkins at 01/28/2009 @ 09:47am

  202. Posted by Thrawn at 01/27/2009 @ 10:18pm

    "And sometimes, you can't even get a clue as to what a clause originally meant."

    Or how it applies. Can you tell me whether the framers were thinking of federal crimes beyond insurrection, treason, and so forth? Does an ordinary reading give us some kind of idea of what The Constitution would give the federal government the power to make a judgment on this matter that applies to the states?

    I think the answer in both cases is it goes back to the states - and "capital punishment" as suggested by the Constitution only applicable to very specific and unique cases. Yet, you didn't come up with that answer. If we were both originalists and made judgments based on these views, how then is that different from the guy that says - you know what, people these days think that hanging, or capital punishment itself - due to all the problems of its application , are cruel and unusual or unjust. In this case, it is unjust to apply it, so I won't.

    Of the three interpretations, philosophically, I like the last one. It is concerned about applying a just verdict based on societies views on what is just - today. The Framers might have thought a firing squad was just - but I don't want to live in a society of the firing squad, and my fellow citizens (including our judges) and I should be able to work that out without having to constantly amend the Constitution - particularly since it never was designed to address this topic.

    "Despite your protest, the alternative to originalism really does seem to be a treatment of the Constitution as a blank slate into which you can pour your own particular vision of the society. "

    As we've just seen, originalism is no different - except it has a nice veneer that pretends that it is different.

    "Your claim that judges have to make good arguments simply begs the question as to what a good argument in this context IS."

    I'll suggest that Justice Potter Stewart captured the point nicely when asked to define obscenity, "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that." I'll simply say that, in practices, justices know it when they see it. Unsatisfying? Yes. True? Also, yes.

    "Outdated in what sense? It's not that they don't keep up with technology; application of existing principles to new situations is a natural function of law."

    Outdated in the sense that the Framers intent or meaning has to be weighed against the intent or meaning of those making Amendments. That cruel and unusual of the last-1700s is not the same as the cruel and unusual of the 21st century. That Framers never had any ideas of a central government administering justice but that's what we have. The Framers or amendment authors did not know what problems would arise in application of the principles (such as the death penalty) or that equal rights might one day include gay people (which in an originalist interpretation means they aren't covered under the 14th Amendment). It doesn't take into account new techniques such as lethal injections or new technologies ranging from nuclear weapons to the Internet, from credit cards to jet travel.

    When we apply existing principles to new situations, we have a lot of latitude in which principles to use and no ability to claim an originalist interpretation on our judgment. You can't have the Founders ideas on nuclear weapons. It also ignores the fact that we don't live in a society that reflects the Founders ideals regarding the role of the federal government.

    Posted by srjenkins at 01/28/2009 @ 10:15am

  203. Posted by Thrawn at 01/27/2009 @ 10:33pm

    "You say that constitutional amendments are meant to check the Court."

    I didn't say only check the Court. It can apply to any branch or level of government you like. The Reconstruction amendments for example were an attempt to impose the federal power of a majority of states on a minority - whethere for a good purpose or not is not the point.

    Again, we have an instance of you reading in your principles - checks and balances and firm demarcation of power of different branches and between federal and state government. That doesn't exist in the real world. I get the sense that you would like it all to make sense, and I think it would be easier for you if you just accepted the fact that it doesn't.

    "... the Court is virtually uncheckable...Only one judge ever impeached?"

    If you think it were necessary, do you think it would be more common? I do. The fact that impeachment is not used shows just how limited judges powers really are - which buts the first claim in doubt.

    "The Supreme Court is not simply there to protect minority rights..."

    Not an argument I made. I did say that they do protect minorities rights, but I have never argued that is their sole function.

    "Unless the document as originally understood says otherwise, the majority's will stands."

    But that's obviously not true. The majority will opposed interracial marriage until 1991. Yet, the Supreme Court legalized it everywhere in 1967. I don't think you can make the argument that the original writers of the 14th Amendment, much less The Framers with their talk about equality, ever had in mind interracial marriage and it certainly would be accepted as the meaning by an average person of the day.

    We go with that interpretation, and my own marriage would be illegal. This is just one of many problems in your position.

    The 1967 case was also going against Supreme Court precedent. They essentially made law in this case, and by doing so, they showed a support for minority rights that took the majority 24 years to catch up to.

    And whatever their real reasons, they presented a plausible argument that equal protection means not equal persecution of whites and blacks but that interracial couples should have the same rights as couples of the same race. It's a plausible legal argument, based in the Constitution - but it doesn't work in an originalist framework.

    Posted by srjenkins at 01/28/2009 @ 10:40am

  204. <i>Posted by srjenkins at 01/28/2009 @ 09:47am </i>

    I hate to say this, but...none of this is important because it's not the least bit responsive to my argument. This may be partially my fault, so let me clarify:

    Some have claimed that capital punishment is per se unconstitutional, meaning that any and all actions by the state to put a convict to death can be struck down as unconstitutional. I'm saying that originalism make rejection of THIS per se principle easy. The fact that the death penalty is not per se unconstitutional, however, does not make it per se constitutional. Hence, arguments that you make based on things like Equal Protection are still completely viable under an originalist system. Moreover, since the Constitution does not dictate whether states should or should not excute offenders, it does did for gay marriage and the death penalty EXACTLY what you claim it did: it left them as issues that the states could resolve as they chose. It leaves no room for a court to say that the government can't ever do it no matter what, and IN DOING SO leaves the matter to be resolved by legislation in individual states.

    Posted by Thrawn at 01/28/2009 @ 6:10pm

  205. <i>Posted by srjenkins at 01/28/2009 @ 10:15am </i>

    Continuing a bit on the capital punishment discussion...if you don't think a particular punishment is just, then fine. Pass a law banning it; that's the mechanism built into the system for changing our moral standards. But if you're a judge, don't strike a law allowing the punishment down. One, if the legislature isn't acting, your determination that "everyone thinks this is wrong" is a little suspect to begin with. You know as well as I do that when a judge does what you're saying he should do, he's really just imposing his own view of what's cruel. "Cruel and unusual" didn't mean "whatever you think is cruel or unusual," because then it would have afforded NO protection against a particularly barbarous society. Morality can improve OR it can degenerate, so the only way you get definitive protections is with established standards.

    And on that subject, you later say that you're weighing the intent of original ratifiers versus the intent of those passing amendments. That's clearly not true, as your own "cruel and unusual" example makes abundantly clear. Now, you SHOULD do that weighing, and I would argue that if there's a necessary conflict you weigh in favor of the more recent amendment. We do that with statutes all the time.

    And finally, the new technologies argument. I have to admit, your arguments have generally been pretty solid even if I disagree with them, but this one's pretty bad because it ignores the difference between a minor premise and a major premise. The major premise is the broad principle; that's what I see stays constant. The minor premise is applying the rule to the given case; the minor premise is what adapts to technology, so technology is not a refutation of originalism at all.

    Posted by Thrawn at 01/28/2009 @ 6:42pm

  206. <i>Posted by srjenkins at 01/28/2009 @ 10:40am </i>

    When you say that "these things" don't exist in the real world, I frankly have no idea at all what that means. That principles like separation of powers are my own principles injected into the text? No; I like them, but they matter because they were an integral part of the text's original understanding.

    And no, impeachment is still not a real check. It has been tried against judges who were way out there, but failed. Why? Because people were concerned about politicizing the Court by threatening impeachments for judges that made decisions politicians didn't like.

    On the 14th Amendment, it is again important to distinguish major premise intent from minor premise intent. In the case of interracial marriage, there is a direct conflict between a claimed minor premise intent (interracial marriage) and the clear major-premise intent (ensure racial equality). As they should, the Court found that the major premise intent trumps, exactly as I've argued it should. Decisions that contended otherwise were mistaken, and overturned accordingly.

    Finally, I think it worth noting that two critical issues/analogies have yet to be responded to:

    1) If judicial review would not exist absent a written Constitution, how then can judicial enforcement of terms that are not part of the Constitution be regarded any differently?

    2) If a judge cannot justifiably override a statute by use of a conflicting common-law doctrine, how can he justify doing so based on his own moral sensibilities?

    Posted by Thrawn at 01/28/2009 @ 6:50pm

  207. Posted by Thrawn at 01/28/2009 @ 6:50pm

    I'll be brief, for a change.

    1. If judicial review would not exist absent a written Constitution, how then can judicial enforcement of terms that are not part of the Constitution be regarded any differently?

    Judicial review does have applicability even without a Constitution. See Dr. Bonham's Case in Wikipedia. In that case, there was discussion of statutes violating common right or reason.

    The fact that it didn't take root in England and that the Constitution was used to assert judicial review in the U.S. - it still doesn't follow that the judicial review would not exist absent a written Constitution. Further, once established it may very well have collapsed into common right or reason but with a Constitutional explanation - same as I contend originalism itself does.

    2. If a judge cannot justifiably override a statute by use of a conflicting common-law doctrine, how can he justify doing so based on his own moral sensibilities?

    As I said before, I'm not interested in justifying the legal system. I think a judges job is to administer justice, and he is justified in doing whatever he sees fit in making that happen - so long as he can get other justices to buy it. That's why we see so much contradiction in application of law, and while it isn't consistent, it is better than the rigid straight-jacket of originalism. "Better" meaning more just.

    Posted by srjenkins at 01/28/2009 @ 7:38pm

  208. Haha I doubt "brief" is a word that would describe most of either of our posts. That said...I'll be SOMEWHAT brief.

    On Bonham's case, you're right that the link to British Parliament is not itself sufficient to prove a broader conceptual point. I was going instead for the broader intuition (reinforced by the apparently-universal or at least near-universal REPUDIATION of Coke) that a judge without a Constitution has no basis on which to strike laws down.

    The problem of morality is perfectly evident here, too. The legislature enacts a statute with moral principles embedded in it, as is the case with all statutes in it. Under your theory, the judge can then strike the statute down based on HIS moral principles. No matter how you try and escape this, any alternative to originalism always ends up positioning the judge as a superior arbiter of the majority's morality. They get to decide whether the morality enacted by the people is "good enough" or not. When we both agree that they have no claim to a superior morality, how on earth can they justify this? You keep wanting to defend ruling on justice, but that only begs the question of why the judge's sense of justice gets to trump the legislature's. This makes sense neither from democratic theory or even from any merit-based calculus.

    What originalism allows is a vibrant democratic process. There are difficult moral decisions to be made, on which reasonable people can differ. Under my system, where the Constitution doesn't give him the resources to address these issues judicially, the issue can be discussed and processed in the legislature, and compromise (a crucial engine of democracy) can be reached. Limiting judicial authority, far from a "rigid straight-jacket," helps keep the democratic system vibrant.

    Posted by Thrawn at 01/28/2009 @ 7:59pm

  209. Posted by Thrawn at 01/28/2009 @ 7:59pm

    "I was going instead for the broader intuition (reinforced by the apparently-universal or at least near-universal REPUDIATION of Coke) that a judge without a Constitution has no basis on which to strike laws down."

    This is false. The whole basis for common law tradition is that there were no statutes and that law was effectively what had been decided before. At base, your argument is that you'd like the U.S. to have a legal system based on civil law - and in truth, there has been some direction in that way with the codification of common law in the 20th Century. However, I don't think you can claim - as you do - that judges can only use the Constitution or statutes to make their decisions.

    The issue you raise about the unlimited power of judges under the common law system has been addressed by such concepts of stare decisis and the ability to appeal to higher courts.

    "No matter how you try and escape this, any alternative to originalism always ends up positioning the judge as a superior arbiter of the majority's morality."

    Someone needs to do the job. It's like the President. The fact that the man can command armies, enforces the law or whatever - doesn't make him conceptually superior, like it does in the case of a king. He has power by virtue of his position.

    The same goes for judges, but in their case, they are subject to review by higher courts or the ideas of other judges adjudicating the case with them - and concepts like stare decisis or even originalism.

    They are in the position to make the call. That is all. Personally, I think conflating morality and law is a mistake. Morality is brought into the picture when a person has to make a moral decision - and when we reduce it to mechanics like originalism attempt to do (but fails), it turns into an abomination-- a clockwork orange that tries to turn justice into an algorithm.

    "Under my system, where the Constitution doesn't give him the resources to address these issues judicially, the issue can be discussed and processed in the legislature, and compromise (a crucial engine of democracy) can be reached."

    But, this doesn't happen in reality. The legislature could have convened and recognized the Supreme Courts ability to judicially review their legislation. Or, what about the other "implied" powers of the Federal Government? You see any problems in Congress, state legislatures and passing a Constitutional Amendment there?

    What about problems of originalism? Like the Dred Scott case? You used this to support your claims about moral superiority - but neglected to talk about how the fact that African-Americans aren't citizens under the Constitution was basically an originalist interpretation--an interpretation that could only be resolved by a right vigorous civil war because no amount of discussion or compromise was going to solve the issue.

    How long would Virginia have taken to recognize interracial marriages, if the court had taken the stance that it was equal because white and blacks were effected equally rather than judging it by the fact that same race and interracial couples were not equal?

    The bottom line is that legislatures don't work the way you want them to work. There are old laws on the books that don't make sense - but they are still there because legislatures can't get around to cleaning up all the cruft in the law books. So, you have police and district attorneys deciding that they will enforce (effectively legislating), you have judges deciding whether and how to apply the law (effectively legislating), concepts like stare decisis and so on to solve this problem.

    And while we are at it, why is it that no one ever talks about legislation by the executive branch? The Code of Federal Regulations is law - supposedly derivative law where Congress passes the general principle and the Executive branch gets into the nitty gritty detail. Now one talks about "activist regulators" - even though it is as much of an oxymoron as "activist judges".

    "Limiting judicial authority, far from a "rigid straight-jacket," helps keep the democratic system vibrant."

    In theory, this sounds like a good idea. But, in practice, it's an abomination.

    Posted by srjenkins at 01/29/2009 @ 11:09am

  210. <i>Posted by srjenkins at 01/29/2009 @ 11:09am </i>

    I want to start where you left off, with Dred Scott, because the decision was nothing remotely resembling originalism. Nowhere in the original understanding of the Constitution was the premise that African-Americans weren't citizens. Now, it was implicit that slavery was Constitutional (as would a state's efforts to ban it be). Dred Scott was the application by a judge of his own principles to declare (by awful arguments, btw) that slavery could not be made illegal in the territories. So let's knock that out of the way right off the bat.

    The executive legislation point is actually really interesting, and it really threw me for a loop until I actually realized the problem. What you've described isn't really legislating. It's taking the statute as they've been giving it, and carrying it out. Though interestingly, why they'd be limited to that under your theory is unclear. If judges can claim the kind of authority you want them to, why not the executive too?

    I'll just lump the common-law and "bad results" arguments into one. Whenever courts have struck a law down, they've declared it "unconstitutional," because they recognize all the way back from Marbury v. Madison that their power of judicial review exists only because we have a written Constitution. That's where their authority comes from. When common-law is superceded by statutes, you can't then overrule those statutes by the common-law.

    I also found your answer to "why do they get to trump the majority?" very interesting. You said, "because they're in a position to." In other words...it's just because they can. First, in no other branch would you ever accept this. You objected (quite rightly) to many Bush Administration excesses. Limited govt.=good.

    Posted by Thrawn at 01/29/2009 @ 8:28pm

  211. It's also not enough to say "but surely, someone has to," because that only begs the question. Maybe someone has to, but why them?

    I think it worth noting, before I wrap up, that Roe v. Wade was actually one of the worst things that happened to the pro-choice movement. There was a strong legislative movement building in favor of abolishing abortion laws, and very little pro-life voice. That changed dramatically, because the debate incorporated people angry at the Court for stepping in like this. An interesting case in point. Legislative compromises happen in the real world, because that's how it's set up. Will bad laws still survive? Yeah. Can enforcement sometimes be struck down under due process (i.e. lack of notice)? Probably; that should take out the worst of the harms.

    My unanswered question, though, is this: where does the judge's authority to strike down laws come from? It can't just be because "someone has to," or "they're in a position to." FOr majority will, that's not good enough. They have to have either:

    a) Legitimate constitutional authority, or

    b) Superior morality.

    I've argued extensively that (a) is false because no one at the outset envisioned judges having the power with which you've endowed them. You've conceded that (b) is false. If you want to say that originalism is wrong, you need a (c) and I haven't a compelling one yet. Stare decisis isn't a check because judges can ignore it; same with the political question doctrine. They won't get removed because virtually none ever has no matter how crazy rulings were. The only check we have is responsibility, and saying "we'll strike down a law we think is immoral" isn't responsibility; it's a license to undermine the democratic process.

    Posted by Thrawn at 01/29/2009 @ 8:33pm

  212. Posted by Thrawn at 01/29/2009 @ 8:28pm

    "Nowhere in the original understanding of the Constitution was the premise that African-Americans weren't citizens."

    Does a citizen get only 3/5ths of a vote? It wasn't until the 13th Amendment in 1865 and the Civil Rights Act of 1866 that this changed, and Dred Scott was 1857.

    As much as you'd like to knock it out of the way, Dred Scott is a really good example of the kinds of problems inherent in your framework. The fact that you reject the originalism you don't like and accept the "correct" kind only proves my larger point.

    "If judges can claim the kind of authority you want them to, why not the executive too?"

    I don't have a problem with it. I'm simply showing how the seperation of powers isn't clean, despite your claims to the contrary. They call it a Code of Federal Regulations for a reason - because it's essentially executive law.

    It would be helpful if you stopped focusing on my so-called "theory" whenever I raise a point directed at your argument. I'm not trying to establish a theory. I'm trying to show you how bad of a theory originalism is and the establish the fact it isn't the case.

    "You objected (quite rightly) to many Bush Administration excesses."

    Yet, the Bush aministration only proves my point. Was he stopped? Did the seperation of powers work and how much of a check was put on executive authority? Through a variety of techniques - such as "state secrets", avoiding Congressial subpoenas, and so forth, they were able to coordinate actions and limit oversight. The fact that the judiciary doesn't have a single head and the structure of it that assumes a certain level of independence in judges, you cannot have the same kind of abuse there.

    Posted by srjenkins at 01/30/2009 @ 1:51pm

  213. Posted by Thrawn at 01/29/2009 @ 8:33pm

    "Maybe someone has to, but why them?"

    This is an attempt to make a simple thing hard. It only works when you treat this whole thing as an abstraction.

    And the Roe vs. Wade thing? Let's be serious now. If this decision wouldn't have been made and it was sent back to the states, abortion would be in various degrees of illegal in most red states and you'd have what you had before - basically the abortion equivalent of the drug war. That's stupid public policy.

    There's a reason why Article III is so short. There already existed a legal system, common law and established precedent and the Constitution tells us that this tradition applies:

    "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority..."

    Just like you have to understand common law to understand statutes, you have to understand that the Constitution doesn't make the judiciary. The Framers simply coopted this existing structure and put a top layer on for appeals.

    So, I suppose that if we want to use your false dichotomy, I'd say this judicial tradition if legitimized by the Constitution. We need someone to adjudicate cases. There's a whole history about how to do it - that existed prior to the Constitution. And of all the three branches, the judiciary is the one I worry least about in terms of abuse - partly because its powers are inherently so limited by its organization and functioning.

    Posted by srjenkins at 01/30/2009 @ 2:20pm

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