DebateGate
General Category => 3DHS => Topic started by: Lanya on May 03, 2007, 02:07:15 AM
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The right's explicit and candid rejection of "the rule of law"
(updated below)
The Wall St. Journal online has today published a lengthy and truly astonishing article by Harvard Government Professor Harvey Mansfield, which expressly argues that the power of the President is greater than "the rule of law."
The article bears this headline: The Case for the Strong Executive -- Under some circumstances, the Rule of Law must yield to the need for Energy. And it is the most explicit argument I have seen yet for vesting in the President the power to override and ignore the rule of law in order to recieve the glories of what Mansfield calls "one-man rule."
That such an argument comes from Mansfield is unsurprising. He has long been a folk hero to the what used to be the most extremist right-wing fringe but is now the core of the Republican Party. He devoted earlier parts of his career to warning of the dangers of homosexuality, particularly its effeminizing effect on our culture.
He has a career-long obsession with the glories of tyrannical power as embodied by Machiavelli's Prince, which is his model for how America ought to be governed. And last year, he wrote a book called Manliness in which "he urges men, and especially women, to understand and accept manliness" -- which means that "women are the weaker sex," "women's bodies are made to attract and to please men" and "now that women are equal, they should be able to accept being told that they aren't, quite." Publisher's Weekly called it a "juvenile screed."
I'll leave it to Bob Altemeyer and others to dig though all of that to analyze what motivates Mansfield and his decades-long craving for strong, powerful, unchallengeable one-man masculine rule -- though it's more self-evident than anything else.
But reading Mansfield has real value for understanding the dominant right-wing movement in this country. Because he is an academic, and a quite intelligent one, he makes intellectually honest arguments, by which I mean that he does not disguise what he thinks in politically palatable slogans, but instead really describes the actual premises on which political beliefs are based.
And that is Mansfield's value; he is a clear and honest embodiment of what the Bush movement is. In particular, he makes crystal clear that the so-called devotion to a "strong executive" by the Bush administration and the movement which supports it is nothing more than a belief that the Leader has the power to disregard, violate, and remain above the rule of law. And that is clear because Mansfied explicitly says that. And that is not just Mansfield's idiosyncratic belief. He is simply stating -- honestly and clearly -- the necessary premises of the model of the Omnipotent Presidency which has taken root under the Bush presidency.
This is not the first time Mansfield has expressly called for the subordination of the rule of law to the Power of the President. In January of 2006 -- in the immediate aftermath of revelations that President Bush had been breaking the law for years by spying on the telephone conversations of Americans without warrants -- Mansfield went to The Weekly Standard and authored a truly amazing article, which I wrote about here (see item 2).
Unlike dishonest Bush followers who ludicrously claimed that Bush's eavesdropping was not illegal, Mansfield embraced reality and candidly argued that President Bush possesses the power to break the law in order to fight The Terrorists. The headline of that article presented the same mutually exclusive choice as the WSJ article today: The Law and the President -- in a national emergency, who you gonna call?
In that article, Mansfied claimed, among other things, that our "enemies, being extra-legal, need to be faced with extra-legal force"; that the "Office of President" is "larger than the law"; that "the rule of law is not enough to run a government";..........................
[.....................]
http://www.salon.com/opinion/greenwald/index.html
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The closest we have come to a strong executive was FDR. No right winger-he.
Rule of law....pffft. Pack the Supreme Court
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We'll look forward to when Lanya actually presents a CASE law, being judically addressed regarding Bush's supposed "illegal wiretapping" vs the continued use of leftist opinion pieces
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"-- the necessary premises of the model of the Omnipotent Presidency which has taken root under the Bush presidency."
He of one Veto.
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He of many "signing statements" that say, "I'm above the law. It does not pertain to The Unitary Executive."
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He of many "signing statements" that say, "I'm above the law. It does not pertain to The Unitary Executive."
Signing statements hold no weight under law.
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He of many "signing statements" that say, "I'm above the law. It does not pertain to The Unitary Executive."
Have there been many (any ) examples of a federal official enforcing the signing statement rather than the law?
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If it is for torture, how would we ever know?
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If it is for torture, how would we ever know?
Show us an example. Or is this one of those Tee-like scenarios where lack in proof of X is proof positive of X. Lanya appears to be of the mindset that torture is SOP for this administration. Perhaps she could expand on what her definition of torture is vs what the general theme of what torture is considered to be.
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If it is for torture, how would we ever know?
What are you complaining about then?
A problem you don't know exists?
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Plane...What am I complaining about?
What I'm "complaining' about is the president's use of signing statements to say, "If I feel like we need to do X to a prisoner/ enemy combatant, I, The Decider, have the right to order it done."
And that is one, unamerican. Two, leads to our captured soldiers getting tortured in turn. Three, uncivilized. Four, immoral. Five, unChristlike. Six, illegal according to Geneva Conventions. Seven, illegal according to UCMJ. I could go on. But I won't. You have to be told these things?
Oh, and unconstitutional.
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The lefts continuous portrayal of signing statements as either unonstitutional or bind under law is either based on ignorance or willful misrepresentation of the facts. I can see no other possible reason for their duplicity.
Fact is their statements carry as much weight as a signing statement under law, that is nada, zilch, nothing.
But hey if they want to squander their low credibility reserves any further, that is their call.
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The lefts continuous portrayal of signing statements as either unonstitutional or bind under law is either based on ignorance or willful misrepresentation of the facts.
Given the track record, I'll go with the latter >:(
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Signing statements are a political-legal tool in the Bush Presidency, objectionable in coordination with other attributes of a perceived (and reasonable-to-say actual) imperial style presidency. (This tendency toward imperium, in my view, is a product of the security crisis Bush faced shortly into his term, significantly accentuated by his personal style of leadership coupled with the emanations from the ideology he embraced.) The signing statements attempt to steal a march on Congress, whose intent, of course, solely governs matters of statutory interpretation in a court of law. Yet, the executive has a somewhat ambiguous role in interpretation in at least two regards: choosing how to enforce the law (and signaling that intent) in an effort that might be considered a notice function on a law's scope, that is, advising citizens beforehand (before enforcement is actually attempted) how the new law will be enforced (the executive has some discretion in this regard, but how much is the question with the proviso that there is an absolute bar to overriding the Congressional will), and previewing the administration's position in court should litigation develop over the law's interpretation. In another, subtler purpose, the signing statement can be used to shape political debate on the instant law itself or other laws similar in nature. Whatever else can be said, it is my opinion the signing statements, routinely not extraordinarily used by this president, making the edge-of-defiance of Congress banal and not special, is a clear encroachment into another coequal branch's prerogatives and is objectionable in its cumulative nature.
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Are signng statements unconstitutional?
Yes or no.
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You want the answer I'd give Chief Justice Roberts or the president-pro-tem of the Roswell City Council?
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How about one absent quibbles and bits.
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Yes.
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Care to provide a supreme court decision that backs your claim?
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Care to define "unconstitutional"? Simple answers are fine, I guess, when they suit your purposes but not otherwise.
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Care to define "unconstitutional"?
Contrary to the constitution as written or as determined by supreme court decisions touching on the matter.
Signing letters have been around for quite a while. Have the courts ruled on their constitutionality or simply ruled on their weight?
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Signing statements as employed by the Bush Administration are similar in constitutionality to, for example, a court-packing initiative.
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Signing statements as employed by the Bush Administration are similar in constitutionality to, for example, a court-packing initiative.
Please elaborate. Are the signings by Bush more onerous than those by Clinton.
The court packing intiative was not unconstitutional in that the constitution does not specify the number of justices sitting. It did require an act of congress.
Fortunately wiser heads prevailed.
But if the signings are similiar to the courtpacking initiative one of the things in common they did share was that both are constitutional, contrary to your answer.
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I think Bush's signing-statement strategy was more constitutionally burdensome than Clinton's because, for myriad reasons some of which I've alluded to earlier but won't repeat, the Bush approach made an attempt or at least a show at usurpation, a strategy that is destined for failure in the courts but which, unchecked before that, can skew the political process and particularly both the perceived and actual prerogatives of the coordinate branches, and thus the system of checks and balances. Further, in a broad notion of constitutionality greater than a mere positivist conception that the law is what the courts say it is, it is proper and wise to idealize both the principles but also the functioning of the federal structure such that a "workable consensus" can be achieved and (most of the time) "wiser heads [can] prevail."
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But the fact remains both Clinton's and Bush's signings are and were constitutional, absent a ruling from SCOTUS indicating otherwise. If you don't like Bush's show of usurpation, the political process has a remedy. But to state that signings go against the rule of law is simply ignorant or duplicitous or both.
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Well, then, call me "ignorant or duplicitous or both." (That is, BT, we disagree on this one.)
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What we disagree upon is Bush's use of the signing statements. I don't think you truly believe them unconstitutional, i do think you believe them unwise and possibly a warning about the Unitary Executive philosophy. And that is fine. There is a political remedy for that.
And hopefully candidates from both parties will be examined closely on the subject of signing statements.
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Yes, BT, with all the grandeur and authority of your councilman's seat in a lonely Atlanta burb, please lecture me on the complexities of the concepts of constitutional/unconstitutional, then publish it someplace where you don't have an audience dependent on your good graces.
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Yes, BT, with all the grandeur and authority of your councilman's seat in a lonely Atlanta burb, please lecture me on the complexities of the concepts of constitutional/unconstitutional, then publish it someplace where you don't have an audience dependent on your good graces.
Let's clear the air.
I have never ever banned anyone from this board for disagreeing with me. Why would you imply that if, having been a member of this board since the beginning, you know that for a fact. My good graces have nothing to do with the merits of my argument nor does it have anything to do with the demerits in yours.
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For my tastes, your style in "managing a debate" is often heavy-handed, often bizarrely anti-intellectual, and often in-your-face provocative, which, when greeted with language and sentiments commensurate to the insult, can get a poster suspended, as I have been more than once.
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I have never suspended you. I don't even think i have urged you to take a break.
I have a log of posters who have been suspended that tracks their ip's and you aren't on it. And that log goes back 5 years.
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It's erroneous.
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It's erroneous.
or you are.
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No, I know my own experience while you are grandly asserting knowledge of all others' and the infallibility of what well may be a hit or miss recording system.
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The Constitution forbids a few things establishes a few things , there is a difference between being unconstitutional and being extraconstitutiuonal , as far as I know signing statements are not forbidden explicitly .
The means of making law is explicit tho , and if there were some manner of making law that was contrived to avoid this process but produce law or to ignore law that has been duly enacted by the explicitly constitutional process this manner of lawmaking would seem to be Un - constitutional.
Who tho has standing to make this complaint?
Has there actually been a case of the President's signing statement being used in lieu of law ?
How does this relate to the Roe vs Wade decision ,which to opponents seems to be law created outside the constitutional process by a single governmental branch not entrusted with that power?
How does this relate to regulations created in bureaucracies as if they were deputys of the Congress and sometimes produce regulations with all the strength of law?
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No, I know my own experience while you are grandly asserting knowledge of all others' and the infallibility of what well may be a hit or miss recording system.
Hehehehehehehehe
I consider Domer to be an extremely valuable contributor , I am pleased to play in the same league as he condescends to explain subjects of his expertise.
I consider the contribution of BT essential to the existence of this site , which exists more from BT's generosity with his time than from any other reason.
I consider the thread trailing off into minor and poorly considered ad hominim sniping an example of below par performance on both of their parts.
Hehehehehehehehehehehehehe
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How does this relate to the Roe vs Wade decision ,which to opponents seems to be law created outside the constitutional process by a single governmental branch not entrusted with that power?
That is incorrect. Let me say that I am very much against abortion, but there is a great deal that goes into court decisions of this type, in the case of Roe v. Wade it was a matter of the 14th amendment and a reliance upon another decision involving a 1965 Supreme Court case called Griswold v. Connecticut. In that case the state of Connecticut had laws preventing the use of contraceptives which the SCOTUS ruled as unconstitutional on the grounds that it was a violation of marital privacy via the fourteenth amendment and the ninth amendment which provided "penumbras" of other constitutional protection.
Eisenstadt v. Baird used equal protection to broaden the fredom granted in Griswold to unmarried couples. This helped to build a chain of precedence for Roe v Wade. Therefore it is incorrect to assert that the judicial branch created law - they did not.
as far as I know signing statements are not forbidden explicitly
No, nor are they expressly called for by any law, court ruling, or otherwise. They have absolutely no legal force or merit. The Supreme Court has never given any weight to signing statements when they've read legislation before though there is some precedence in the striking of the line-item veto law under President Clinton.
Bush has used them more than any other President in history and generally they are used to tell others that he will not enforce a particular segment of law, or as something similar to an executive order without the legal ramifications.
How does this relate to regulations created in bureaucracies as if they were deputys of the Congress and sometimes produce regulations with all the strength of law?
It does not.
Executive agencies may promulgate such regulations only within the scope given to them by their enacting (or enabling) legislation which was passed into law by Congress. Whether or not you like that is irrelevant. The truth of the matter is that Congress realised long ago that it does not have the time, nor the expertise to handle every possible situation that arises in every agency. So agencies such as the EPA, USDA, Forest Service, on and on are given the ability to promulgate their own regulations.
There is in fact an entire area of law dealing with just this: Administrative Law. It can get very interesting, especially when multiple states come together to create an agency or group to deal with an issue. For example, Pennsylvania, Delaware, and New Jersey created a board to deal with environmental issues on the Delaware River (sometime back in the 80's) and there were a number of authority and delegation of powers issues that arose from this. I remember because we had a few case studies from that one.
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Bush has used them more than any other President in history and generally they are used to tell others that he will not enforce a particular segment of law, or as something similar to an executive order without the legal ramifications.
and that has nothing to do with their constitutionality. Which was the issue at hand.
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Bush has used them more than any other President in history and generally they are used to tell others that he will not enforce a particular segment of law, or as something similar to an executive order without the legal ramifications.
and that has nothing to do with their constitutionality. Which was the issue at hand.
But......but......Bush is evil Bt. That's the real issue, isn't it?
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How does this relate to regulations created in bureaucracies as if they were deputys of the Congress and sometimes produce regulations with all the strength of law?
It does not.
Executive agencies may promulgate such regulations only within the scope given to them by their enacting (or enabling) legislation which was passed into law by Congress. Whether or not you like that is irrelevant. The truth of the matter is that Congress realised long ago that it does not have the time, nor the expertise to handle every possible situation that arises in every agency. So agencies such as the EPA, USDA, Forest Service, on and on are given the ability to promulgate their own regulations.
There is in fact an entire area of law dealing with just this: Administrative Law. It can get very interesting, especially when multiple states come together to create an agency or group to deal with an issue. For example, Pennsylvania, Delaware, and New Jersey created a board to deal with environmental issues on the Delaware River (sometime back in the 80's) and there were a number of authority and delegation of powers issues that arose from this. I remember because we had a few case studies from that one.
Then there is a tool of lawmakeing much more powerfull than the "signing statement " availible to the executive that no one is complaining about.
I think we are agreed that there is no chance of someone useing a signing statement as if it were law.
I will call this a meaningless noise untill there is actually a case in which the signing statement makes a diffrence.
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Plane:
<<I will call this a meaningless noise untill there is actually a case in which the signing statement makes a diffrence.>>
And I repeat, How do you know it hasn't already been used to thwart the law?
http://www.cnn.com/2006/POLITICS/06/27/greenfield.signing/
[............]
'Here's the question: Can a president say when he signs a bill the Congress passed, "I'll interpret the law as I see it"?
That's what Bush did when he signed Sen. John McCain's anti-torture legislation in December, asserting that ''The executive branch shall construe [the law] in a manner consistent with the constitutional authority of the president . . . as commander in chief.
That's a polite way of saying, "If I don't like the law the Congress passed, I'll ignore it." [................]
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"'Here's the question: Can a president say when he signs a bill the Congress passed, "I'll interpret the law as I see it"?"
How could a president say anything elese?
Laws should be written to be clear and leave little doubt or wiggle room or even much room for "interpretation".
Unfortunately the law is too often quite open to interpretation.
"And I repeat, How do you know it hasn't already been used to thwart the law?"
I hereby assert that to the best of my knoledge it has not , if you ae takeing the role of accuser it is your job to fill the present void of evidence .
As stated ,it is an empty accuation .
Also what diffrence would the signing statement ever make to a president unwilling to enforce the law?
I recall President Clinton eagerly signing the law that he was at that time in violation of and was later sued with, if he had stated that he personally planned to ignore it, that would have been more than usually honest . But with no signing statement at all he simply ignored it , till it bit him.
What diffrence would a signing statement have made ?
I have seen no evidence that any presidents signing statement has ever made more diffrence than a press release , have you?
In the absense of any evidence are we free to speculate freely?
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"And I repeat, How do you know it hasn't already been used to thwart the law?"
I hereby assert that to the best of my knoledge it has not , if you ae takeing the role of accuser it is your job to fill the present void of evidence . As stated ,it is an empty accuation .
But....but....it's Bush, Plane, That's all the evidence necessary for Lanya, and like minds. He's evil. Didn't ya get the memo?
In the absense of any evidence are we free to speculate freely?
That's pretty much all that is being accomplished :-\
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and that has nothing to do with their constitutionality. Which was the issue at hand.
True. Thus far the SCOTUS has simply ignored them, which makes me think that they are viewed by the Judiciary as irrelevant. On the other hand, the ABA is looking at the situation with concern, which makes me curious.
Then there is a tool of lawmakeing much more powerfull than the "signing statement " availible to the executive that no one is complaining about.
Because it is power freely given by the legislative branch (at State and Federal levels) and it completely legal and constitutional. How else do you figure on running the complexities of a modern state?
But....but....it's Bush, Plane, That's all the evidence necessary for Lanya, and like minds. He's evil. Didn't ya get the memo?
But...but...but, you cannot use that for everything Sirs. There are some legitimate concerns that cannot always be covered with the "chalk it up to Bush is evil" mantra.
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How does this relate to the Roe vs Wade decision ,which to opponents seems to be law created outside the constitutional process by a single governmental branch not entrusted with that power?
That is incorrect. Let me say that I am very much against abortion, but there is a great deal that goes into court decisions of this type, in the case of Roe v. Wade it was a matter of the 14th amendment and a reliance upon another decision involving a 1965 Supreme Court case called Griswold v. Connecticut. In that case the state of Connecticut had laws preventing the use of contraceptives which the SCOTUS ruled as unconstitutional on the grounds that it was a violation of marital privacy via the fourteenth amendment and the ninth amendment which provided "penumbras" of other constitutional protection.
Eisenstadt v. Baird used equal protection to broaden the fredom granted in Griswold to unmarried couples. This helped to build a chain of precedence for Roe v Wade. Therefore it is incorrect to assert that the judicial branch created law - they did not.
as far as I know signing statements are not forbidden explicitly
No, nor are they expressly called for by any law, court ruling, or otherwise. They have absolutely no legal force or merit. The Supreme Court has never given any weight to signing statements when they've read legislation before though there is some precedence in the striking of the line-item veto law under President Clinton.
Bush has used them more than any other President in history and generally they are used to tell others that he will not enforce a particular segment of law, or as something similar to an executive order without the legal ramifications.
How does this relate to regulations created in bureaucracies as if they were deputys of the Congress and sometimes produce regulations with all the strength of law?
It does not.
Executive agencies may promulgate such regulations only within the scope given to them by their enacting (or enabling) legislation which was passed into law by Congress. Whether or not you like that is irrelevant. The truth of the matter is that Congress realised long ago that it does not have the time, nor the expertise to handle every possible situation that arises in every agency. So agencies such as the EPA, USDA, Forest Service, on and on are given the ability to promulgate their own regulations.
There is in fact an entire area of law dealing with just this: Administrative Law. It can get very interesting, especially when multiple states come together to create an agency or group to deal with an issue. For example, Pennsylvania, Delaware, and New Jersey created a board to deal with environmental issues on the Delaware River (sometime back in the 80's) and there were a number of authority and delegation of powers issues that arose from this. I remember because we had a few case studies from that one.
When the concept of "penumbras " began to be taken seriously , the constitution was under new authorship.
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But....but....it's Bush, Plane, That's all the evidence necessary for Lanya, and like minds. He's evil. Didn't ya get the memo?
But...but...but, you cannot use that for everything Sirs. There are some legitimate concerns that cannot always be covered with the "chalk it up to Bush is evil" mantra.
When someone can demonstrate that what Bush has done is ruled unconstitional by a court, then we can address your concerns about Bush using them more often than some other President, as if that's bad. So far, every thing i've read are that these signing statements are perfectly constitutional. They were under Clinton, so why they suddenly aren't under Bush based simply that he's used more of them, could be assessed as moutain out of molehill fodder by folks who aren't too pleased with Bush, especially those have concluded that everything Bush does is bad/wrong/evil
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When the concept of "penumbras " began to be taken seriously , the constitution was under new authorship.
Not according to Federal Courts and the Supreme Court.
Do you believe a state has the right to outlaw birth control?
When someone can demonstrate that what Bush has done is ruled unconstitional by a court, then we can address your concerns...
I merely stated a fact Sirs, if you read my entire post you'd see that I did not make a great big deal of it. If you have an issue with a fact, then I cannot help you. A fact is a fact. You cannot change them to suit you.
Toddle off now.
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From a memo issued by Clinton's Justice Dept:
If the President may properly decline to enforce a law, at least when it unconstitutionally encroaches on his powers, then it arguably follows that he may properly announce to Congress and to the public that he will not enforce a provision of an enactment he is signing. If so, then a signing statement that challenges what the President determines to be an unconstitutional encroachment on his power, or that announces the President's unwillingness to enforce (or willingness to litigate) such a provision, can be a valid and reasonable exercise of Presidential authority.
The Legal Significance of Presidential Signing Statements (http://www.usdoj.gov/olc/signing.htm)
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When someone can demonstrate that what Bush has done is ruled unconstitional by a court, then we can address your concerns...
I merely stated a fact Sirs, if you read my entire post you'd see that I did not make a great big deal of it. If you have an issue with a fact, then I cannot help you. A fact is a fact. You cannot change them to suit you.
I have an "issue" with folks that imply (if not directly accusing) that anything and everything this President does must be bad, wrong, stupid, and/or unconsitutional. I have no issue with you pointing out if Bush has more signing statements than anyone else. I can tell you that means nothing to me, as my focus both job wise, and in trying to live my life is quality trumps quantity. If they're perfectly constitutional I don't care how many signing statements Bush uses. Until 1 is deemed unconsitutional by a court, this is pretty much a non-issue..........except of course to those who have concluded that Bush is evil, and thus whatever he does must also be illegal, unethical, and/or unconsitutional
Toddle off now.
Interesting
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When the concept of "penumbras " began to be taken seriously , the constitution was under new authorship.
Not according to Federal Courts and the Supreme Court.
Do you believe a state has the right to outlaw birth control?
That is exactly the point.The federal courts should not have the right to enact law.
Umbras and penumbras mean shadows , and if what is seen in the shadows allows a court to have any law it wants then the legislature is superflouous.
And the legislature is the voice of the people.
In some states the people are extremely frustrated at being treated as if their judgement were in some way inferior to that of the Supreme court.
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You didn't answer my second question Plane.
I understand the frustration. I think that abortion is a problem that won't simply go away by attacking the credibility of Roe v Wade which doesn't completely rest on the notion of "penumbra" though it references a case that does to a greater extent: Griswold v Connecticut.
Should states have the power to regulate or completely prohibit birth control?
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Should states have the power to regulate or completely prohibit birth control?
Yes (as it relates to the abortion issue). People elect their legislators, legislators then impliment bills or propositions, that are either signed into law, or put to the people for their vote. If the people don't like the laws passed, they can vote out those legislators and vote in those who have pledged to change the law
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Yes
I agree, especially with abortofacient birth control. Yet, I doubt that many - even amongst the pro-life movement, would agree with overturning Griswold v Connecticut.
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Interesting article and facts about signing statements.
http://www.presidency.ucsb.edu/signingstatements.php
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George W. Bush abused the tool of signing statements, in ways that could conceivably "be declared" unconstitutional, say, in a suit against a federal enforcement agency for "dereliction of duty" for not enforcing a clear legislative enactment in the way the legislature dictated but instead according to an interpretation engrafted onto the law by presidential fiat. In the real world of law and politics where most of us adults live, the concept of "unconstitutionality," further, is an intellectual category not limited to the actions or pronouncements of courts. Take, for example, the separation of powers and the authority to wield stated powers. There is an ebb and flow to this notion, maybe illustrated by the president's war powers and the Congressional enactments bearing on them. More frequently than not, an attempted usurpation by one branch is settled politically, not legally, yet the rights being redressed are constitutional ones. This set-up has gotten formal recognition by the Supreme Court in the concept of justiciability governing "political questions," as one example.
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From a memo issued by Clinton's Justice Dept:
If the President may properly decline to enforce a law, at least when it unconstitutionally encroaches on his powers, then it arguably follows that he may properly announce to Congress and to the public that he will not enforce a provision of an enactment he is signing. If so, then a signing statement that challenges what the President determines to be an unconstitutional encroachment on his power, or that announces the President's unwillingness to enforce (or willingness to litigate) such a provision, can be a valid and reasonable exercise of Presidential authority.
The Legal Significance of Presidential Signing Statements (http://www.usdoj.gov/olc/signing.htm)
I don't agree with this , a president should be held to the law in the same way as a federal marshal , not get to pick his favorite ones , or the bits of a law he likes better.
Necessacery discression I can understand , but not a right to pick and choose the law.
When the president thinks that the powers of the president are being trespassed , he should call in the opinion of a court.
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You didn't answer my second question Plane.
I understand the frustration. I think that abortion is a problem that won't simply go away by attacking the credibility of Roe v Wade which doesn't completely rest on the notion of "penumbra" though it references a case that does to a greater extent: Griswold v Connecticut.
Should states have the power to regulate or completely prohibit birth control?
Yes a state should have the power to make laws in every sort of case not explicitly claimed for the federal government by the constitution.
Allowing the court to encroach on the power of the legislatures robs the people of their voice in democracy.
"Penumbra" is a crutch for a policy of claiming powers for the court not explicitly granted by the constitution , would it be diffrent if the president were to claim the right to make law , or if the Congress were to claim the right to interpret the constitution?
Roe vs Wade does represent an attack on federalism and a power grab on the part of one governmental branch, it is a damage to the system of checks and balences.
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George W. Bush abused the tool of signing statements, in ways that could conceivably "be declared" unconstitutional, say, in a suit against a federal enforcement agency for "dereliction of duty" for not enforcing a clear legislative enactment in the way the legislature dictated but instead according to an interpretation engrafted onto the law by presidential fiat. In the real world of law and politics where most of us adults live, the concept of "unconstitutionality," further, is an intellectual category not limited to the actions or pronouncements of courts. Take, for example, the separation of powers and the authority to wield stated powers. There is an ebb and flow to this notion, maybe illustrated by the president's war powers and the Congressional enactments bearing on them. More frequently than not, an attempted usurpation by one branch is settled politically, not legally, yet the rights being redressed are constitutional ones. This set-up has gotten formal recognition by the Supreme Court in the concept of justiciability governing "political questions," as one example.
"......... in a suit against a federal enforcement agency for "dereliction of duty" for not enforcing a clear legislative enactment in the way the legislature dictated but instead according to an interpretation engrafted onto the law by presidential fiat."
Yes , that would be bad.
Has it happened?
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Of Griswold, Roe, penumbras, emanations, implications, and original meaning.
In my considered professional view, a literalist or "original meanings" orientation to constitutional exegesis and interpretation is like playing with half a deck. The immediate objection stems from the tendency to freeze terms and conditions as of 1787. That is absurd. A far better way to handle this topic is to recognize the conditions prevailing at ratification and then to extract the principles inhering in the founders' treatment of those conditions, thus producing an abstract set of values and principles that lives beyond (transcends) the particular words and particular circumstances within the minds of those signing our foundational document and its amendments.
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Of Griswold, Roe, penumbras, emanations, implications, and original meaning.
In my considered professional view, a literalist or "original meanings" orientation to constitutional exegesis and interpretation is like playing with half a deck. The immediate objection stems from the tendency to freeze terms and conditions as of 1787. That is absurd. A far better way to handle this topic is to recognize the conditions prevailing at ratification and then to extract the principles inhering in the founders' treatment of those conditions, thus producing an abstract set of values and principles that lives beyond (transcends) the particular words and particular circumstances within the minds of those signing our foundational document and its amendments.
Oh no that is terrible!
Allowing the Constitution to be abstracted would kill it as an effective tool of government , no matter how intelligent or educate our people in charge become I want there to be a real leash on them.
When changes are needed , they should be discussed untill the public undestands the need , then the process of applying admendments should be followed in detail.
This is not accidentally a cumbersome process , it needs to be a cumbersome process. Reaching a nationwide understanding and cocensus takes the time.
With a flexable Constitution freely reinterpreted as situations warrant we would have the problems of the man with rubber bones.
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Pelosi recently told a group of liberal bloggers, “We can take the president to court†if he issues a signing statement, according to Kid Oakland, a blogger who covered Pelosi’s remarks for the liberal website dailykos.com.
http://thehill.com/leading-the-news/pelosi-threat-to-sue-bush-over-iraq-bill-2007-05-08.html
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This seems like the right approach.
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Allowing the Constitution to be abstracted would kill it as an effective tool of government , no matter how intelligent or educate our people in charge become I want there to be a real leash on them.
When changes are needed , they should be discussed untill the public undestands the need , then the process of applying admendments should be followed in detail.
The problem Plane is that this is a view that is not compatible with reality. Griswold used the Ninth Amendment to ascertain that the constitution does indeed protect the right to privacy in the marriage bed.
Whether you agree or disagree with a state's right to interfere with marital privacy is immaterial, the question is whether the state has such a right. The SCOTUS says that they do not.
We do not need 25,000 amendments to the constitution to grant everything from marital privacy to setting standards for "meaningful access to justice." That would be a ludicrous policy and turn the judiciary into a meaningless branch.
I don't agree with Griswold, but that is my own convictions, not because some state legislature voted on some Act. State legislatures should not have carte blanche until the next election.
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Allowing the Constitution to be abstracted would kill it as an effective tool of government , no matter how intelligent or educate our people in charge become I want there to be a real leash on them.
When changes are needed , they should be discussed untill the public undestands the need , then the process of applying admendments should be followed in detail.
The problem Plane is that this is a view that is not compatible with reality. Griswold used the Ninth Amendment to ascertain that the constitution does indeed protect the right to privacy in the marriage bed.
Whether you agree or disagree with a state's right to interfere with marital privacy is immaterial, the question is whether the state has such a right. The SCOTUS says that they do not.
We do not need 25,000 amendments to the constitution to grant everything from marital privacy to setting standards for "meaningful access to justice." That would be a ludicrous policy and turn the judiciary into a meaningless branch.
I don't agree with Griswold, but that is my own convictions, not because some state legislature voted on some Act. State legislatures should not have carte blanche until the next election.
You are just telling me that Griswald is just as important as Roe vs Wade and just as wrong.
There should indeed not be a lot of admendments, there should not be that much government at all.
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You are just telling me that Griswald is just as important as Roe vs Wade and just as wrong.
It is. Both allow for the extermination of life.
But I don't need a legislature to tell me that. Nor do I believe the court is necessarily wrong in their interpretation of the law.
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You are just telling me that Griswald is just as important as Roe vs Wade and just as wrong.
It is. Both allow for the extermination of life.
But I don't need a legislature to tell me that. Nor do I believe the court is necessarily wrong in their interpretation of the law.
The Court is simply the wrong place to make that law, it would have been proper for the court to insist that the lefgislature do its job.
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The thing both Plane and JS are skirting is the absolutely essential nature -- the make-or-break character -- of individual rights in the founding of our polity. Indeed, these rights were sketched in the founding document, subject to development. It can be argued that the very structure of the government -- democratic governance -- necessarily implies certain rights, like the right to free expression. But we are not left to build from scratch; we are left to elaborate from principle. And while the political branches of government are often responsive to and involved in the enterprise of expanding or contracting individual rights, it is always the non-political branch, the judiciary, which, by its very nature, is the last arbiter on individual rights. The jurisprudence flowing from the interface of government and individual within the arena of rights produces -- and purposely so -- an intellectual output or body of work which forms the granite-like foundation as the ground upon which life is to be lived. (The "granite character" of any giving ruling is as sound as its reasoning gauged by the circumstances of its times and the historical staying power it can claim.) In the final analysis, when all pushes have come to shoves, it is this body of learning which determines the character of our freedoms, and it purposely harkens to principles largely out of the reach of popular or mob influence.
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In the final analysis, when all pushes have come to shoves, it is this body of learning which determines the character of our freedoms, and it purposely harkens to principles largely out of the reach of popular or mob influence.
I think that is truly essential.
Out of curiosity Domer, would you have agreed or dissented in Griswold and Roe?
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JS, I would have joined the majority opinion in Griswold, readily. Its reasoning is now dim to me, but the bedrock notion of privacy as a core right throughout our history, even if tacit, and a developing right in the face of encroachments by modern society is so essential as not even to be questioned, to my way of thinking. Extending that notion (which I can go even farther and claim as a sine qua non right of our life together, indeed a "foundational right" upon which most others rest) to, as the Court framed it, "marital privacy," and subsuming under that mantle methods of managing family size through the use of medical aids to the most private of interactions, is about as natural (pardon the pun) a use of the doctrine as I can imagine. There's one more thing I want to note: Griswold addressed a state's intrusion into private matters, scrutable under the 14th Amendment's due process clause. Originally, the first ten amendments did not apply to the states. After passage of the 14th, a concerted effort was made to give "content" to the 14th's due process clause vis-a-via the states. One famous test (Justice Jackson?) was to fathom the needs of "an ordered liberty." There were other such assays. Gradually, the Court settled upon a process of serial "incorporation" of specific rights, but, throughout that effort and beyond, the relevant text remained the 14th's due process clause, with incorporation informing, but I suggest not limiting, its scope. Thus, the famous "penumbras" of Griswold and later (by implication?) Roe were "natural canopies" in 14th-due process jurisprudence, not only there all along but by necessity.
As to Roe, I'll be much briefer. I will nod in the direction of liberal cant and say that while I am conflicted (yet) about the procedure (especially, for me, regarding any fetus that looks remotely like a kid), I defer to others who may disagree and who actually face this potentially agonizing decision. Yet, as I prefer to understand the problem, perhaps slavishly obeisant to the Roe opinion itself, the core of the conflict is the Court's failure to "recognize" a fetus (though there are gradations, up to viability) as a "person" itself within the meaning of the 14th Amendment. Failing that, the fetus simply remains a part of the woman's body (up to viability), and, under a naturally extended right of privacy, subject to her best judgment as to how it should be treated.
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".....the core of the conflict is the Court's failure to "recognize" a fetus (though there are gradations, up to viability) as a "person" itself within the meaning of the 14th Amendment. "
I agree , but why is there such a hazy definition of "person"?
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Well-stated Domer.
It is extremely difficult to argue with marital privacy (or even non-marital privacy of the bedroom depending upon age of consent and a few other factors). Even the dissenting opinion of Griswold considered the Connecticut law ridiculous.
As you likely know, I disagree with the use of contraception (especially abortofacient contraception) and I certainly disagree with abortion. What are the possibilities, aside from legal arguments, for making changes that are based in morality more than legality?
Is this more about the prevailing zeitgeist?
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JS, responding to your last question may be like an exercise in true confessions. As I've said (and this graphic drives the point home to me in heart-rending fashion), seeing pictures of fetuses (how young?) that look like kids repels me when the association is made that they could be/have been aborted. My feelings are not bound to any religio-philosophic foundation, except as a cumulative product of my life experiences, unparsed and undifferentiated however they may be. Yet, as with much in life, I choose my fights, and there are countless instances in which love, charity and basic human decency can find focus and expression, but certainly not all, or even a significant fraction, susceptible to my limited ministrations. But there is an overlay here, which one may term philosophic, that recognizes in a nation (or world) of great diversity of scientific understanding and religious conviction that honest, forthright, conscious-driven, God-fearing folks, for example, who might not share my perceptions, or, if sharing them, might override them by appeal to a greater good. And I leave it at that.
As to a change in abortion attitudes and practices, I tend to agree that a sea-change in the Zeitgeist on certain core feelings, attitudes, behaviors and understandings may be the only way effectively to curb the scandal that abortion can become. I hasten to add, however, that eliminating a 16-cell zygote, say, from the uterus is not something I find offensive in any sense, an instance where the "part of a woman's body" conception of the problem is both palpable and compelling.
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Allowing the Constitution to be abstracted would kill it as an effective tool of government , no matter how intelligent or educate our people in charge become I want there to be a real leash on them.
When changes are needed , they should be discussed until the public understands the need , then the process of applying amendments should be followed in detail.
The problem Plane is that this is a view that is not compatible with reality. Griswold used the Ninth Amendment to ascertain that the constitution does indeed protect the right to privacy in the marriage bed.
Whether you agree or disagree with a state's right to interfere with marital privacy is immaterial, the question is whether the state has such a right. The SCOTUS says that they do not.
We do not need 25,000 amendments to the constitution to grant everything from marital privacy to setting standards for "meaningful access to justice." That would be a ludicrous policy and turn the judiciary into a meaningless branch.
I don't agree with Griswold, but that is my own convictions, not because some state legislature voted on some Act. State legislatures should not have carte blanche until the next election.
How did they ignore amendment ten?
The ability to choose out the words ,and ignore some parts, is as strong as the power of authorship.
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
http://www.law.cornell.edu/constitution/constitution.billofrights.html#amendmentix
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I suggest that the difference between a foetus and a baby is obvious to anyone with pretty much any two of the five senses.
But I shall elaborate.
Babies are OUTSIDE their mother's bodies. Foeti are not.
Foeti are not fully human. Babies are.
It is simple as sh*t.
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Babies are OUTSIDE their mother's bodies. Foeti are not. Foeti are not fully human. Babies are. It is simple as sh*t.
And yet those who have killed Pregnant women, be it accidentally or thru murder, are charged with the death of 2 HUMANS. Hmmmmm, how's that work? Not so simple now, is it
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That's one view among many, XO, even if less intelligent than most.