Tuesday, May 10, 2005

Republicans write the Constitution out of existence

Also posted over at Hullaballo in a comment on this thread (with some additional text added her for context):

The conservative Republicans are on a mission to try and curb the powers of the judiciary. The most current ruse (other than trying to take away all but a judge's salary) is to twiddle with "jurisdiction", and deny to the courts jurisdiction to hear certain types of cases under Article 2, Section 2, Clause 2 of the Constitution. Let's look at the basics (and I'm going to give the conservatives the benefit of the doubt here on their motivations and reasoning).

There are a fair number of federal laws that specify by who, and how, a federal action can be challenged in court (and to be fair, the courts themselves place restrictions on who can ask for court relief, under such rubrics as "standing", "jurisdiction", and "ripeness", etc.... to be sure, I don't agree that such limitations are fair in all cases, even if "pragmatic").

But for the most part, the legislative restrictions apply to suits arising under the laws themselves; e.g., if you are suing under some anti-discrimination provisions, you may well be required to first file a complaint with the EEOC, and let the EEOC proceed with action on the complaint rather than charge into court yourself.

Also, certain legislation can exempt specific people from civil liability, even if the liability springs from causes of action that the legislation doesn't otherwise specifically cover.

And the government generally has sole discretion as to whether to pursue criminal charges; you can complain as loud as you want but if a government refuses to bring criminal charges against an individual, you can't go to court to force them to do so.

To some extent, your ability to file a lawsuit is prescribed even in the rules that the government lays down for the operation of courts; if they say that the laws say you can't sue, that's the laws they passed; you can't sue and they are de jure acting "legally".

Implicit in all of the above is the notion, perhaps a pragmatic one, that not every "problem" has a solution in court.

There is a growing RW fondness, however, for the idea of government "sovereignty". It is seen in the recent trend in 11th Amendment law, where the RWers have insisted that the government is free from suits against itself unless it wants to allow them. While I thought that we had had a revolution a couple centuries ago just to repudiate the notion of "kings" and the "STFU, I am the law" retort, the RW seems to think that a democratic government is sufficiently responsive to the people that it should be free from questioning in a courtroom -- rather than on the soapbox -- if it so chooses. Of course, the individuals that are inconvenienced by this, and who think that the government in their specific case is acting outside the law are specifically SOL then. Unless they can convince a large number of people of the government malfeasance, their grievances will be unredressed. While I disagree with this thinking about the usefulness and the "benefits" of this idea of sovereignty, it is an arguable case, and perhaps it's not an inherently unworkable system, even if it does tend to promote at least to some extent big and unaccountable government.

Things get a little trickier when the legal issues in certain court cases involve the Constitution itself. From an abstract standpoint, any system where the bedrock law of the system -- the very "rules of engagement", as it were -- is not supreme but is inherently unstable and violable ... and perhaps that is why the architects of the Constitution put in the quaint phrase of the Constitution being the "supreme law of the land". In this case, barring jurisdiction for such cases based on causes of action arising under the Constitution would in effect mean that the legislature can -- if it so chooses -- make the Constitution a nullity and effectively "amend" the Constitution through simple majority vote. Maybe the Founders thought that no reasonable Congress would do such a thing, or that the other checks and balances of elections, Constitutional conventions, revolution, etc., would prove a stop to Congressional over-reaching (and to some extent in fact, it is true that even the finely constructed and balanced form of government the United States has crafted is to some extent dependent on at least a small modicum of good faith acting by those in power). But knocking out the prop of Marbury v. Madison from the power of the judiciary, and the dilution of the power of "checks and balances", would seem to put that idea to the extreme test, particularly in a time when the party in power is in the hands of rabidly partisan extremists.

OTOH, it is also true that a judiciary run amok could hamstring and frustrate the legitimate efforts of the other co-ordinate branches should the judiciary be taken over by a bloc of extremists. However, this is unlikely for several reasons. First, courts are the "least dangerous branch", having no money nor army of their own ... a sentiment expressed by many constitutional and judicial scholars over the years. Secondly, the courts act in individual and specific cases, and there are many courts and far more court cases than courts. Unlike the general ability of the legislature to set one law for all on the basis of a transient, slim, and contested majority, the courts must decide case by case, and the courts would have to be hijacked as a whole -- and thoroughly and completely so -- by extremists, to have the same effect as an overbearing legislature. This, of course, is exactly what the RW is screaming and moaning (and have been for a half century) has happened to the judiciary. But it simply isn't so. Invoking the "nuclear option" of jurisdictional limitation to cure the perceived "excesses" of the courts on a couple of hot-button issues is likely to do far more damage than it cures in the long run (something that the conservatives don't seem to look at), while the cure for such alleged "judicial overstepping" is already specified in the Constitution: If you don't like a court ruling, amend the parts of the Constitution you don't like rather than writing it out of existence altogether. . . .

Friday, May 06, 2005

Friday sharkblogging

For the education of the name-stealing "Gordon the
Muddleheaded", who seems to need some enlightenment
(in the metaphorical form of a 2X4 upside the head)
as to exactly what kinds of fish I have in my

(for reference, white tipped reef shark, Palau,
January, 2004, Nikon N80/28-80mm/Ikelite
housing with Ikelite DS-125 strobe [click to

Wednesday, May 04, 2005

Kathryn Lopez knows what real unnatural acts entail

Sez Katrryn Lopez over at The Corner:
It is really rare that I disagree with Michelle Malkin, but Michelle writes today: “The First Lady resorting to horse masturbation jokes is not much better than Whoopi Goldberg trafficking in dumb puns on the Bush family name. It was wholly unnecessary.” Yes, unnecessary, but the Whoopi stuff was just forthrightly crass. . . .
"[N]ot much better"?!?!? Interesting, Kathryn, that you don't think the horse hand-job mention (along with the other equally blatant sexual jokes in Laura's schtick) weren't "forthrightly crass" if the alternative meaning of "bush" gets you all in a tither. At least Michelle Malkin is showing some consistency here, albeit some curiously skewed perspectives.
. . . On Saturday night, I ran into more than one person who hadn’t even gotten the horse thing when it was delivered. Maybe there was just enough subtlety that she saved the office of the First Lady from ill repute.
If you assume that the Republican base is dumber than a pet rock. May be true, but I don't think so. At least not totally. Not each and every one. Some are "spinning" suckups that know damn well what was meant, and choose to deny it, ignore it, minimize it, or otherwise paper it over, because it doesn't help The Cause for the Republicans to be seen as the amoral and hypocritical pricks they are once again. . . .
Don’t get me wrong, as I’ve said, I would have totally avoiding the horsing myself. Like Michelle, I tend to be a G-Rated conservative--unless I’m writing about topics that would require an R if on the silver screen (say, a partial-birth abortion). And while I totally get South Park humor, the 4th-grade-boy kinda stuff I could generally do without. (My teen love (still one to many a “desperate housewife,” Simon Le Bon, didn’t charm me with his burping and fart jokes in Duran Duran’s Rolling Stone interview this week.)
But horse hand-jobs, Chippendale trips, and little "Mr. Excitement" are nothing to get worked up about? What's that? IOKIYAR?
Yes, I worry about the coarsening of our culture, but I don’t really think that a White House where people don’t swear is contributing to it much. And I don’t think that’s me trying to be hip.
Nah, Kathryn, we didn't think that. That's just you stupidly whoring for the maladministration and trying to put some spin on this embarrassing hypocrisy that they've exhibited. Don't get me wrong; I have no problem with off-colour humour (granted there's a time and a place for everything, but the press correspondents' dinner is not exactly high mass). It's the hypocrisy of the Republican party claiming to be the party of "family values" and wanting to restore "dignity" to the White House, when they're a sleazier, cheaper, and far more dishonest bunch than the prior occupants while pretending to be "holier than thou". It's your whoring here that is really "crass".

You know what humour really did bother me, Kathryn? It was when Dubya made light of the lack of WoMD last year, despite the fact that many thousands of people have died because of that colossal fuckup ... umm, let me amend that ... lie. . . .