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SARCASM REIGNS TODAY

First, Marc’s post on the Nation article and now The Daily Demarche !

PROVING THAT A JACKASS CAN IN FACT BE A REPUBLICAN

Senator Ted Stevens (R-Alaska), who demonstrated today that one could spend nearly a lifetime in Congressional service while remaining almost completely ignorant of the U.S. Constitution.

“There has to be some standard of decency,” he said. But he also cautioned that “No one wants censorship.”

Or the restrictions of logic for that matter. Ted Stevens…. a living nail in the coffin of the concept of limited government.

HIGHLY RECOMMENDED READING FROM THE RIGHT AND LEFT

Two posts today that I regard as ” must reads”, they’re that good.

Hailing from the Right of the political spectrum is Marc Shulman of the American Future, who offers up a masterful fisking of a Nation article that inadvertantly showcased why much of America today finds the politics of people like Tom Hayden and Angela Davis as repellent as – well…TomHayden and Angela Davis.

Coming from the Left, is Juan Cole of Informed Comment with a timely and valuable primer
on Lebanon and its discontents with Syria. Professor Cole demonstrates what historians do better than practitioners of other disciplines – frame an issue in its correct context in a way that is easily understood and properly analyzed.

OUR CONSTITUTION MAY BE UNCONSTITUTIONAL IN THE EYES OF THE SUPREME COURT

Kevin Drum might regard me as a wingnut for suggesting this but the trendy law-school advocacy for subjecting American Constitutional law to the inchoate, protean, ever-evolving, undefinable thing called ” International Law” as the supreme legal standard is a grave threat to American sovereignty.

It’s also an extremely undemocratic grab for arbitrary power by the legal class which already has far too much coupled with too little discernment of how that power should be used. While a seemingly arcane issue, admitting the authority of foreign court rulings amounts to a revolution in American jurisprudence and has enormous implications for democratic control over national policies and the limits of American sovereign rights. The Supreme Court simply does not have the Constitutional authority to make this kind of jurisdictional decision – though the Congress does through explicit clauses on Federal court jurisdiction and the Senate’s role in advice and consent for treaties.

The Congress should circumscribe this practice before it puts down roots and grows into a weed we will all live to regret.

From the WSJ:

“Rule of (International) Law Can foreign courts tell American ones how to do their job? :

One of the more dangerous fads in Supreme Court jurisprudence of late is something called “international law,” in which American laws are measured not just against the Constitution but against the laws of foreign countries. The purpose is to put the U.S. law in what supporters delicately call a “global context.” What they really mean is that they can’t persuade enough Americans of their views to change U.S. law so they want to persuade judges to do it for them.

Among the most ardent supporters of this view are opponents (here and abroad) of the death penalty, who argue that capital punishment violates international norms. In the juvenile death-penalty case it heard last fall, the Supreme Court took the unusual step of permitting friend-of-the-court briefs from 48 foreign governments and such renowned jurists as Mikhail Gorbachev and the Dalai Lama. (Naturally, they all opposed it.)

Which brings us to Medellin v. Dretke, a death penalty-related case that the Supreme Court will hear next month and which has the potential to catapult the concept of international law to a new level of acceptability in American courts. At issue is whether an order issued by the International Court of Justice at The Hague must be enforced by a court in Texas. That is, the “supreme” court of the United States would reside in the Netherlands, not the District of Columbia

José Medellin is a Mexican citizen on death row in Texas. He was convicted in state court in 1994 of murdering two teenage girls and sentenced to death. The Texas Court of Criminal Appeals upheld his conviction and sentence in 1997.

A few months later the Mexican consular authorities in the U.S. learned about Medellin’s plight for the first time. They eventually took his case to the International Court of Justice, arguing that under the Vienna Convention they should have been notified when Medellin was first arrested. The ICJ ruled in Mexico’s favor and ordered U.S. state courts to review the death sentences of Medellin and 50 other Mexican citizens held on death row in this country.

At first blush, the ICJ ruling seems entirely reasonable. The U.S. is a signatory to the Vienna Convention, which everyone agrees serves American interests; if an American citizen is arrested abroad, the U.S. wants to know about it. Nor does the U.S. dispute the facts of the case. It has apologized, promises to do a better job of keeping its treaty commitment, and has launched an education campaign on the Vienna Convention for state law-enforcement authorities.

The danger here lies in the remedy. Letting the ICJ tell Texas how to run its courts would move the U.S. in the direction of the European Union, which has a supernational legal system to which national courts must bow. Not far down the line would be an ICJ ruling declaring the death penalty illegal and ordering Texas to get rid of capital punishment.

The U.S. brief in Medellin is due Monday, and we hear there’s a battle royal between the State Department, which doesn’t want to upset Europeans who support the ICJ (and hate the death penalty), and the Solicitor General’s office, which understands the legal principles at stake. At the ICJ, the Bush Administration argued that Mexico’s demand would be an “unwarranted intrusion” on U.S. sovereignty. That’s still the correct position. “

A VIEW OF OUR CONSTITUTION FROM OVERSEAS

A European member of one of the Listservs I subscribe to posted the following comment the other day:

“Unfortunately, I am not quite familiar with the American system,
so I do not know the exact terms, but I would say that the authorization
act by Congress to the President to do whatever he seems appropriate as a
response to 9-11 is a clear violation of separation of powers, as well as
the President’s excessive use of “Presidential Orders”. One could argue
that a state of emergency justifies that, but still a state of emergency
in a democracy has to fulfill some liberal standards”

There’s a lot of confusion regarding Force Authorization Resolutions. And there should be because that’s the intent of their sponsors, to muddy the legal waters on matters of war and peace. I posted the following response:

“…[the poster] has an excellent grasp of the spirit of the American Constitutional system. Her only error, in my view, arises from the fact that the current preference of the Legislative branch for an Authorization to Use Force Resolution creates an appearance that is counterintuitive to the legal reality.

The United States Constitution divides the war powers between the Legislative and Executive branches, investing the decision to go to war rest with the former and giving power over the conduct of the war to the latter. The Legislative branch also has a check after the fact in that the war must be paid for out of new appropriations. The Congress exercised this power of the purse during Vietnam to curb the actions of the Nixon administration in Southeast Asia.

As a practical matter, having consented to a declaration of war, the Congress writes an almost blank check to the President, so strong are the traditional conceptions of the scope of the President’s powers as Commander-in-Chief during wartime. The Congress really only can muster the will to quibble at the margins so they are loathe to formally invoke the phrase ” declare war ” if it can possibly be avoided. A joint resolution to use force, however broadly worded ( and the 9/11 resolution is fantastically broad) is actually an attempt by the Congress to set ” less than war ” parameters on the President’s use of his military powers. Ditto for the Constitutionally-suspect War Powers Act.

Personally, I am extremely dubious that such a semantic distinction would pass muster with the Supreme Court of the United States, given the factual circumstances of the 9/11 attack and the invasion of Iraq. The Constitution gives the Congress the power to declare war in Article I. but leaves the procedure and wording up to the Congress, unlike,for example, with cases of treason where the Framers took care to remove any flexibility whatsoever. My hypothesis is that the High Court would regard the 9/11 and Iraq Force Resolutions as acts of war in a way they might not for a Force Resolution authorizing a limited peacekeeping engagement in Bosnia.

As for the president’s ” excessive ” use of executive orders, President Bush has actually has been more circumspect than many of his wartime predecessors including Truman, FDR, Wilson and Lincoln. What FDR did in terms of internment of Japanese-American *civilians*, a reprehensible act of poor judgement but one that was nevertheless upheld by the Supreme Court in Korematsu v. United States, demonstrated how far the legal authority of the president in war time can be stretched. Mr. Bush, by contrast has not even sent al Qaida *combatants* before court-martials for war crimes which could easily result in death sentences for fighting out of uniform or targeting civilians, something well within normal military justice procedures.

The objections to Mr. Bush’s actions in this regard tend, I have observed, to come most heatedly from those who also happen to argue that the United States is not actually at war.”