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June 13, 2008

A precedent that will reach to himself
Posted by Avram Grumer at 01:49 AM * 78 comments

Thursday, as you’ve probably heard by now, the US Supreme Court ruled that detainees at Guantánamo Bay do have habeas corpus rights. I’ve skimmed the decision (in PDF form), and part of it rests on the recognition that there’s a strong bullshit component to the claim that Cuba has “ultimate sovereignty” over the area of the bay, based in the 1903 Cuban-America Treaty, signed at gunpoint in the wake of the Spanish-American War. Though Justice Kennedy phrases it somewhat more genteelly:

Accordingly, for purposes of our analysis, we accept the Government’s position that Cuba, and not the United States, retains de jure sovereignty over Guantanamo Bay. As we did in Rasul, however, we take notice of the obvious and uncontested fact that the United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory.

I’ve also skimmed Scalia’s dissent (starting on page 110 of that PDF), in which, having seen a terrorist scurrying around the floorboards of his kitchen, he leaps up onto a chair, robes clutched around his knees, and shrieks for a big strong executive branch to do away with our essential liberties so he can have a little temporary safety. But the real gem comes on page 127:

But so long as there are some places to which habeas does not run — so long as the Court’s new “functional” test will not be satisfied in every case — then there will be circumstances in which “it would be possible for the political branches to govern without legal constraint.” Or, to put it more impartially, areas in which the legal determinations of the other branches will be (shudder!) supreme.

Yes, he actually wrote “(shudder!)”! But don’t let that distract you. Check out the first half of that quote. The thing Scalia’s actually worried about is that this decision places limits on the power of the executive branch. He’s actually offended at the notion that there might be circumstances under which the President can’t operate “without legal restraint”. In Scalia’s mind, the notion that the President might not have legitimate dictatorial powers is so offensive that he expects us to shudder at it. And let us remember, this is a man who publicly stated that he prefers monarchy to democracy:

It is easy to see the hand of the Almighty behind rulers whose forebears, in the dim mists of history, were supposedly anointed by God, or who at least obtained their thrones in awful and unpredictable battles whose outcome was determined by the Lord of Hosts, that is, the Lord of Armies. It is much more difficult to see the hand of God — or any higher moral authority — behind the fools and rogues (as the losers would have it) whom we ourselves elect to do our own will.

Comments on A precedent that will reach to himself:
#1 ::: Raphael ::: (view all by) ::: June 13, 2008, 02:18 AM:

Some excerpts of Scalia's opinion I've read elsewhere are entirely about how he rules set by the ruling are supposedly horrible policy. Even if that would be true- wich it isn't- didn't anyone ever tell this guy that that's completely irrelevant in a legal decision? And he's supposed to be a law scholar? Damn, I've never studied law, but after reading those excerpts, I think I know more about what the job of a judge is than this member of the most powerful court in the world.

#2 ::: Linkmeister ::: (view all by) ::: June 13, 2008, 02:52 AM:

Scali's known for temper tantrums, or so I've read. I was pretty offended when he was on 60 Minutes a few weeks back and, when asked about Bush v. Gore, said baldly "Get over it."

As one who liked Hillary more than Barack but is quite happy to vote for the latter, I hope my fellow former HRC supporters recognize that Supreme Court appointments Matter.

#3 ::: Dave Bell ::: (view all by) ::: June 13, 2008, 03:43 AM:

If Scalia really is saying that, in some circumstances, the legal opinions of other branches of government shout be supreme, doesn't that make him an oathbreaker?

#4 ::: Wirelizard ::: (view all by) ::: June 13, 2008, 04:20 AM:

Scalia appears to favour not just any monarchy, but old fashioned divine-right monarchy, too. Fascinating.

For a fairly worrying value of "fascinating"...

#5 ::: Earl Cooley III ::: (view all by) ::: June 13, 2008, 04:30 AM:

I assume that supreme court justices can be impeached for violating their oaths to defend the Constitution. Whenever one of them votes in a manner with which I disagree, that's one count in their future impeachment trial. Too bad it's not up to me, though. heh.

#6 ::: Zander ::: (view all by) ::: June 13, 2008, 06:11 AM:

I prefer monarchy to democracy, at least as democracy is practised in our two countries at the moment. With a monarchy you have a statistically measurable chance that the throne might go to someone who is fundamentally decent and isn't willing to do whatever it takes to get and keep power.

Hoping Obama will prove me wrong on this, but only very faintly...

#7 ::: David Harmon ::: (view all by) ::: June 13, 2008, 06:59 AM:

Earl @#5: Unfortunately, that's the problem. AFAIK, the only way for someone to be forced off the SCOTUS is feet-first.

Zander @#6: That goes both ways: My dad (a lawyer) used to say that "the ideal form of government is a benevolent despotism. The only problem is the succession...."

#8 ::: John A Arkansawyer ::: (view all by) ::: June 13, 2008, 08:03 AM:

David Harmon @ 7: Supreme Court justices can be impeached.

#9 ::: Greg London ::: (view all by) ::: June 13, 2008, 08:35 AM:

the legal determinations of the other branches will be (shudder!) supreme

Do they not teach Separation of Powers in School House Rock anymore?

#10 ::: Alex Cohen ::: (view all by) ::: June 13, 2008, 08:56 AM:

I think you're reading Scalia exactly backwards. He's saying "Look, your argument is based on the fact that without this ruling, there would be areas where the Court didn't have supremacy. But that will still be true after your ruling, so you didn't accomplish your stated goal. So either the goal is wrong or the ruling is wrong." The sentence immediately after your quote is "In other words, judicial supremacy is not really assured by the constitutional rule that the Court creates."

He's not stating a position in favor of political branch supremacy, but criticizing the majority decision for using that as a yardstick and still failing.

I'm no fan of Scalia, and I'm aghast that only 5 justices found for habeas, too, but let's read carefully.

#11 ::: Scott ::: (view all by) ::: June 13, 2008, 09:02 AM:

David Harmon @7

The "Benevolent Autocrat" assumes that the primary things standing between governors and successful governance are "red tape" and "bad intentions."

I think that's a foolish, if optimistic view. Considering you can lead very poorly even with good intentions... An omniscient, benevolent autocrat... well, now you're getting somewhere... and REALLY have a problem with succession...

#12 ::: Dan ::: (view all by) ::: June 13, 2008, 10:04 AM:

After reading that little bit with the "(shudder)" bit, and after reading Greg's comment at #9, I think my newest argument will be that America hasn't gone to crap since they supposedly took someone's god out of the classroom; America went to shit when they yanked School House Rock off our Saturday morning airwaves.

At ten years old, clearly I, and many of my prepubescent colleagues, had a better grasp of the Supreme Court's functioning than Justice Scalia seems to currently have.

#13 ::: Serge ::: (view all by) ::: June 13, 2008, 10:19 AM:

Zander @ 6... With a monarchy you have a statistically measurable chance that the throne might go to someone who is fundamentally decent

That reminds me of an interview with Ian McKellen where he recounted the time he and his friend Judi Densch were at Buckingham Palace for a big to-do when one of them pointed out that they were in the throne room. They snuck behind curtains and there was the throne, upon which the co-stars of Macbeth promtly sat.

#14 ::: Keith ::: (view all by) ::: June 13, 2008, 11:05 AM:

Having just caught up with the second season of The Tudors, I can't help but see Scalia as someone who would have been right at home in Henry VIII's court, finding theological reasons to behead Queen Anne and then laughing about it. smarmy little ...

#15 ::: Tom Scudder ::: (view all by) ::: June 13, 2008, 11:07 AM:

13: This is a bit of a long story, and second-hand:

I knew a guy who was involved in the planning, on the Palestinian side, for Pope John Paul's visit to That There Place. Apparently, everywhere the Pope goes, he gets his identical little chair built custom instead of shipping it around everywhere. So the Palestinians got a copy of it built to spec, and the place they stored it was in this guy's office.

Anyway, dealing with a Pope's visit is obviously very tiring, and one day during the visit, my friend retreats to his office and finds himself badly in need of a nap. The only place to sit down is the Pope's chair, so he curls up. And then is awoken by one of his bodyguards, saying, "Mr. [friend], Mr. [friend], wake up! Mr. Pappa needs his chair!"

#16 ::: Nancy Lebovitz ::: (view all by) ::: June 13, 2008, 11:12 AM:

Would the hand of God be more in evidence if leaders were chosen by lottery?

#17 ::: C. Wingate ::: (view all by) ::: June 13, 2008, 11:22 AM:

Souter's concurrence is worth reading, (a) because it's brief and readable by human beings, (b) because it's a bald expression of common sense.

#19 ::: Melinda Snodgrass ::: (view all by) ::: June 13, 2008, 11:53 AM:

McCain has just excoriated the decision in a Town Hall Meeting in New Jersey where he agreed with Roberts's dissent that this was the action of unelected judges legislating from the bench.

Consider this -- McCain wants to be President. The oath calls for the President to protect and defend the Constitution. Apparently McCain has never read the Constitution, or doesn't understand it. It's the Court's _job_ to rule on the Constitutionality of laws and Presidential actions.

If anyone doubted that McCain wants to continue Bush's imperial presidency look no further than this.

I'm so afraid. So much is riding on this election, and the Right will do anything to win.

#20 ::: bellatrys ::: (view all by) ::: June 13, 2008, 12:52 PM:

With a monarchy you have a statistically measurable chance that the throne might go to someone who is fundamentally decent and isn't willing to do whatever it takes to get and keep power.

Zander, can you provide historical roof of that? Myths & legends don't count.

(I myself was raised to believe, and proclaim, the same thing. Then I read a bunch of history - not the approved conservative Catholic triumphalist versions, but ones that included lots of first-hand sources, and came to the conclusion that, like the credal belief that Landowners Having More Vested Interest In Society Will Likely Make Better Rulers, this was a myth like the one that boiling water will become icecubes faster than room-temperature water...)

#21 ::: Erik Nelson ::: (view all by) ::: June 13, 2008, 01:25 PM:

Zander at #6, monarchy and democracy.

I remember news reports of an attempted right-wing coup in Spain and the king of Spain going on TV to denounce the coup. (was that 1980? 1981?)

So, if, as someone once said in a much earlier Making Light thread, fascism is democracy's "failure mode" then perhaps the proper role of a monarch today is to stand outside of the machine and be ready to whack it on the side when it stalls.

Who could do something like this if America needed it?

#22 ::: Joel Polowin ::: (view all by) ::: June 13, 2008, 01:27 PM:

King Jigme Singhye Wangchuck of Bhutan. Decided to convert his country to democracy, even though most of the people were quite happy with the monarchy as it was. The people seem to have been a bit puzzled about his motivations, but went ahead with the process because the king asked them to. Their first national elections were in March of this year.

#23 ::: Erik Nelson ::: (view all by) ::: June 13, 2008, 01:29 PM:

for another wrinkle of the legalities depending on whose jurisdiction you're in, there was a Supreme Court decision a while back that said that states did not have jurisdiction over the way airlines treated passengers travelling through that particular state.

This was in connection with some law about how rest rooms should be provided in airports, but what was that decision intended to pave the way for?

#24 ::: Earl Cooley III ::: (view all by) ::: June 13, 2008, 01:39 PM:

John A Arkansawyer #8: Supreme Court justices can be impeached.

I looked it up and associate supreme court justice Samuel Chase was impeached by the House (mostly on allegations of politicized judicial decisions) but acquitted by the Senate. Apparently that incident raised the bar to the extent that they only bother to impeach judges on acts of blatant mundane criminality.

#25 ::: Avram ::: (view all by) ::: June 13, 2008, 01:46 PM:

Zander #6: With a monarchy you have a statistically measurable chance that the throne might go to someone who is fundamentally decent and isn't willing to do whatever it takes to get and keep power.

When I was a cynical teenager, and first read this line of argument in one of Joel Rosenberg's "Guardians of the Flame" books, I thought it was pretty smart. In middle age, I think it's bullshit.

The problem with a monarchy isn't that you occasionally get bad kings, it's that the king has highly centralized power and there's no easy way of getting rid of him. It's inevitable that you'll sometimes get bad rulers, no matter what political system you have. American democracy was built so as to distribute power and mitigate the ability of a bad ruler to screw things up. This has failed not because presidents have gotten worse, but because the American people have come to see the presidency as the seat of power in government.

#26 ::: Linkmeister ::: (view all by) ::: June 13, 2008, 02:23 PM:

Dahlia Lithwick in Slate:

Scalia points to the 30 detainees released from Guantanamo—by an order of the Bush administration, not a court, it should be noted—who have allegedly "returned to the battlefield." One detonated a suicide bomb in Iraq in May. Scalia notes that this "return to the kill" happened even after "the military had concluded they were not enemy combatants" (italics his). So you see, even those who were deemed innocent at Guantanamo are actually guilty in Scalia's mind. And whether or not they ever get to go home, the mere act of providing them with civilian court oversight will surely endanger yet more American lives.

#27 ::: Avram ::: (view all by) ::: June 13, 2008, 03:35 PM:

And of course Scalia neglects to consider that being wrongfully detained could itself be a radicalizing experience.

#28 ::: Bruce Cohen (SpeakerToManagers) ::: (view all by) ::: June 13, 2008, 04:21 PM:

Nor does Scalia wonder what the point of the whole exercise is, if the military who, by definition of the military tribunal system, are supposed to know better than the judicial system how to know which prisoners are enemy combatants, can't get it right.

Unless, of course, the legal and proper policy is "Put them all to the sword, God will know his own."

#29 ::: Rozasharn ::: (view all by) ::: June 13, 2008, 04:28 PM:

Zander #6 wrote: With a monarchy you have a statistically measurable chance that the throne might go to someone who is fundamentally decent and isn't willing to do whatever it takes to get and keep power.

The trouble is, when the throne goes to someone fundamentally decent, if they aren't willing to do whatever it takes to keep power, they won't keep power.

Historical example: Lady Jane Grey, queen of England after Henry VIII. She was a decent, scholarly, unambitious person who was put on the throne as a pawn and 'ruled' for all of nine days before she was deposed and beheaded.

Monarchy is no protection against power-grabs by the power-obsessed: look at all those invasions, revolutions, coups, assassinations, or co-options of gullible rulers by unscrupulous courtiers.

#30 ::: Ginger ::: (view all by) ::: June 13, 2008, 05:27 PM:

David Harmon @ 7: Funny, my father always says that the best form of government is a benevolent dictatorship..and then he adds, with himself in charge. ;-)

#31 ::: Robert W Glaub ::: (view all by) ::: June 13, 2008, 05:29 PM:

Now maybe we can start getting out national honor back...

#32 ::: Edward Oleander ::: (view all by) ::: June 13, 2008, 05:52 PM:

#10 Alex Cohen "I think you're reading Scalia exactly backwards. He's saying "Look, your argument is based on the fact that without this ruling, there would be areas where the Court didn't have supremacy. But that will still be true after your ruling, so you didn't accomplish your stated goal. So either the goal is wrong or the ruling is wrong."

Unfortunately, Alex, I think we have Scalia pegged pretty well. What you are describing above is a tactic that conservative legislators and apologistas use to block progressive attempts at incremental change in any number of areas.

It goes like this: An attempt at change is made. It is usually a partial solution limited by political practicality or technological constraints. Opponents to ANY change in that particular area protest that since the change being offered can't solve the WHOLE problem, we should just kill it and wait until something better comes along.

By suggesting a delay until a REAL solution comes along, the status quo is preserved, and nothing ever really changes.

Scalia is, always has been, and always will be a complete waste of skin and precious bodily fluids. In other words, a piece of shit.

#33 ::: Mary Dell ::: (view all by) ::: June 13, 2008, 06:43 PM:

This is awesome:

having seen a terrorist scurrying around the floorboards of his kitchen, he leaps up onto a chair, robes clutched around his knees, and shrieks for a big strong executive branch to do away with our essential liberties so he can have a little temporary safety.

*applause*

#34 ::: heresiarch ::: (view all by) ::: June 13, 2008, 09:31 PM:

Avram @ 25: "American democracy was built so as to distribute power and mitigate the ability of a bad ruler to screw things up. This has failed not because presidents have gotten worse, but because the American people have come to see the presidency as the seat of power in government."

Even now, I'd say that the system has worked. When you compare what Bush has gotten away with with what he wanted to do, there's a considerable gap. We still have Social Security; we haven't invaded Iran (yet); Rove, Rumsfeld and Gonzales were forced to resign; there is no permanent Republican majority; Bush will likely be gone from American politics in a few short months--just imagine how much worse off we would have been had Bush seized power under a political system like Indonesia's. We're about to go from eight years of Bush to an executive and legislative branch dominated by his sworn opposition, without any violence (I hope). Going from what I know of dictatorships, that's quite a feat. We elected just about the worse president possible, and we're going to walk away from it alive. Three cheers for the wisdom of the founders, I say.

#35 ::: John A Arkansawyer ::: (view all by) ::: June 13, 2008, 09:43 PM:

I had the misfortune of turning on NPR while coming home from work today, only to hear Nina Totenberg discussing this case. Her voice went squeaky as she asked what we were to do about those people who were innocent, who had been determined not to be a threat, and who had been radicalized in that camp. That is a conundrum, you know. It's not like we let innocent people go. This is America, after all.

#36 ::: Xopher ::: (view all by) ::: June 13, 2008, 09:55 PM:

John: I say we let them out and take our fucking lumps. And if they do something terrible, we remind the world that it was the Republicans who did it to us, because they did.

#37 ::: Greg London ::: (view all by) ::: June 13, 2008, 10:07 PM:

who had been radicalized in that camp.

Shit, we've been making terrorists faster than we can kill them for six years now. She acts like Gitmo is a special fucking case???

Have people seriously been this asleep all these years????

#38 ::: Joel Polowin ::: (view all by) ::: June 13, 2008, 10:21 PM:

Isn't it past time to tear down those prison walls? Liberté, (l)égalité, fraternité, all that good stuff?

#39 ::: John A Arkansawyer ::: (view all by) ::: June 13, 2008, 10:28 PM:

That got such a strong reaction that I thought I'd go to NPR's site and hear it again.

These points stand out:

Totenberg recognizes that the Bush administration screwed the pooch on this.
Totenberg made a point of slipping a favorable mention of John McCain into the story.
The host, Melissa Block, seems to have noticed Totenberg was getting a little goofy toward the end--note the save she throws her by explicitly saying "bad news".
Totenberg starts getting squeaky at about four and a half minutes into the segment.
Cory Doctorow was right to show NPR rolling over in Little Brother.
NPR has really gone to hell since Gulf War I.

#40 ::: John A Arkansawyer ::: (view all by) ::: June 13, 2008, 10:38 PM:

This just in on a related subject: Juan Williams is still a tiresome prat. And a note to Alex Whoever: Comparing McCain to the Celtics in this context was perhaps unwise.

#41 ::: Graydon ::: (view all by) ::: June 13, 2008, 11:18 PM:

As I recall, only about half the kings of England between Bastard William and the present Elizabeth were succeeded on the throne by a son or grandson. Theoretical monarchy has almost no relation to actual monarchy; that's why the English system wound up with the supremacy of parliament. (I am in favour of a strong monarchy, but not an hereditary one.)

If you really want a determination of divine grace selection of rulers, you accept volunteers, and you have them play simultaneous (simultaneity is very important) Russian roulette until at most one survives. Anyone who wants to stop playing after they start is killed. Usual double-blind public selection of pistols, as per dueling protocols. (No survivors, clearly none were acceptable to God and you need another call for volunteers.) This retains the suitable atavistic flavour of blood sacrifice without having to have large messy battles.

The obvious ways in which this sort of thing would become utterly disfunctional are a good hint about what happens, more slowly, with divine-right autocratic systems.

I would say that the major problem in the US public sphere is the concerted effort to remove the legitimacy of all public institutions; the core framework was well designed, but it's been under generational-time attack, for the last two generations very vehement attack. One could conclude that for a significant fraction of the population, any government which would assert that blacks and women were the equals of white men was already illegitimate.

#42 ::: BSD ::: (view all by) ::: June 13, 2008, 11:35 PM:

The problem with monarchy isn't bad kings, or bad subsidiaries, or anything like that. The problem with monarchy is that it is fundamentally, inherently, and obnoxiously offensive to the basic equality, dignity, and rights of humanity.

I don't believe in the death penalty, but I believe that every king, queen, prince, sultan, emperor, grand duke, or anything else regnant would be much better without their respective heads.

#43 ::: Raphael ::: (view all by) ::: June 14, 2008, 12:44 AM:

In other words, you find it aesthethically unpleasant, and base your strong heartfelt beliefs about it on that. Yeah, who cares about practical consequences of actions- grandstanding rhethorics with lots of pretty fuzzy but surely impressive sounding words is just so much better as a base of political beliefs!

#44 ::: albatross ::: (view all by) ::: June 14, 2008, 09:31 AM:

BSD #42:

Surely, the decency of the society depends on the broader set of laws and practices in that society. IMO, the specific mechanism to choose the rulers and establish the rules is much less important than the kind of rules that are established, and the quality of life for the people living there. It was probably better to live in Hong Kong in 1970 than in South Africa in 1970, even though South Africa had a democratic system of sorts in place, and Hong Kong did not.

The bigger issue with monarchy comes in two flavors:

a. There's usually some kind of rule of succession (if there's not a clear succession, things can get bloody very quickly). This establishes a more-or-less random selection of the next king, which means that you will often choose someone completely unsuitable as king.

b. The king usually reigns for a very long time unless he's killed in some kind of coup, so bad kings can be inflicted upon the nation for quite a long time.

At some level, monarchy by descent is an idea that makes some sense, until you understand regression to the mean. If the current king is an unusually wise and capable and decent leader, his son probably won't be nearly as wise, capable, or decent. It's easy to get the "three generations from rags to rags" thing going on, in which the grandson of the wise man who established the kingdom lives long enough to run it back into the ground.

#45 ::: Jackie L. ::: (view all by) ::: June 14, 2008, 10:11 AM:

Robert Glaub @ 31, my hopes exactly. Tired of my French AIM pals thinking the entire US is nuts.

#46 ::: Randolph ::: (view all by) ::: June 14, 2008, 10:16 AM:

Legal analysis of decision.

"Have people seriously been this asleep all these years?" Greg, they still are asleep. We still are asleep. The children of Iraq (and many other people of the region) are going to grow up hating us. If we are to avoid a third war, one that will come home to us, in 20 years, we need to start setting matters right as soon as may be and I've yet to see anyone even mention that in major media, or even the blogosophere. Admittedly I haven't looked very hard, but it seems such an obvious concern. And all I hear about is our own internal issues. People, people--!

#47 ::: P J Evans ::: (view all by) ::: June 14, 2008, 10:18 AM:

#44
Surely you mean non-random selection of the next king?

#48 ::: BSD ::: (view all by) ::: June 14, 2008, 10:27 AM:

It is possible to have a decent society under a king, but the problem with a king is that society, decent or not, will always be under it. What I'm making is a philosophical, not a practical-political point: While I would rather live in, say, Belgium than in, say, Zimbabwe, (much!), there is a significant part of me that finds Albert II more objectionable than Robert Mugabe.

As Avram knows, I'm only a Jacobin on my bad days. On most, I'm happy to be a very staunch small-r republican.

#49 ::: Ginger ::: (view all by) ::: June 14, 2008, 10:37 AM:

BSD @ 48: The difference here is that Albert II won't care if you find his existence to be objectionable, while Robert Mugabe will try to kill you. The term "benevolent" is key, no matter which system of government we choose (or prefer).

#50 ::: David Harmon ::: (view all by) ::: June 14, 2008, 10:53 AM:

Edward Oleander #32: The phrase is "making the perfect the enemy of the good".

#51 ::: Michael Turyn ::: (view all by) ::: June 14, 2008, 11:35 AM:

(I believe that Scalia is being disingenuous in the "First Things" article pointed-to, and that he does in fact prefer monarchy to democracy, but on the other hand the assumption of bad faith is obnoxious, I believe he is covering a small shandeh with a larger in any event, so let me take him at his word:)

Scalia is not saying that monarchy is necessarily superior to democracy, but that it is so in one important aspect: the ability to plainly imply that the Hand of God backed the ruling Authority.

Scalia is saying something very scary: the Hand of God is in fact behind the ruling authority of our democracy, just very hard to see. This implies a privileged class made up of those able to see it.

He seems to be calling to us to see, as an act of civic virtue, the Hand of God behind the authority of our government, and to make it as plain as possible for those who do or will not see...otherwise, capital punishment, and all authority really is illegitimate. This is of a piece with the Englishman I saw once interviewed about a possible replacement of the Pound by the Euro who opined, "How can it be worth anything without the Queen's head on it?"

(I don't entirely disagree: I think the edifice of civilisation, which I largely like, is much like the "Monty Python's Flying Circus" sketch's public housing block built by The Amazing Mystico and Janet, and maintained by belief in its superiority*, but on the other hand I don't see any problem with fiat money or market-derived valuation for things other than human life or human rights.)


He is in some ways following the argument of the 14th Earl of Gurney's in "The Ruling Class": "In the old days, the executioner kept the common herd in order. When he stood on his gallows, you knew God was in His heaven, all right with the world." Basically, capital punishment was a maintenance system for The Great Chain of Being; Scalia is implying that our version of the Chain in fact needs even more maintenance than monarchy's.


*In the U.S. I think we would have recently done better with Cosmo the Fairly Accurate Knife-Thrower and His Lovely Assistant, Yvonne/Lucille/Doris/Elaine....

#52 ::: Lizzy L ::: (view all by) ::: June 14, 2008, 12:03 PM:

Michael Turyn, you have just made Scalia scarier. Mazel tov.

I am not sure I agree with your reading of Scalia's words but I agree it is a plausible one.

#53 ::: Lila ::: (view all by) ::: June 14, 2008, 12:08 PM:

Greg @ #9: impressive diversity in the Supreme Court in that video, for the 1970s!

Dan @ #12: I owe to SHR my knowledge of the multiplication tables and the Preamble to the Constitution.

I wasn't crazy about the 1970s while I was living through them, but they had their benefits. Reading Is Fundamental. Sesame Street (okay, it premiered in the '69s, but just barely). Schoolhouse Rock.

#54 ::: Lila ::: (view all by) ::: June 14, 2008, 12:09 PM:

(make that "in the '60s, but just barely". Boy, I hate spotting errors just as I hit "post"!)

#55 ::: Alex Cohen ::: (view all by) ::: June 14, 2008, 02:33 PM:

Unfortunately, Alex, I think we have Scalia pegged pretty well. What you are describing above is a tactic that conservative legislators and apologistas use to block progressive attempts at incremental change in any number of areas.

I don't have a tiny bit of problem with your characterization of Scalia as a person, or even as a judge. But as it was said by comment #1 here: the law can only be interpreted dispassionately as law. Scalia's motives are not pure here, I agree, but I'm a firm believer that when arguing the merits of judicial arguments, one ought to engage with them solely as legal questions. I happen to think Avram's analysis is flawed. (You are, of course, free to disagree with my disagreement.) (And note that I think Scalia's conclusion is wrong, but on other grounds.)

Scalia is, always has been, and always will be a complete waste of skin and precious bodily fluids. In other words, a piece of shit.

One of the things I find most distasteful about the right wing's criticism of the judiciary is how often they hope for/pray for/call for the death of various Supreme Court justices. Look, I fervently hope that Scalia decides tomorrow to resign to spend more time with his family. (Well, no, decides on January 31, 2009.) But be careful not to make political speech like that acceptable.

#56 ::: Earl Cooley III ::: (view all by) ::: June 14, 2008, 02:37 PM:

As for Iraqi's hating the US, there is perhaps a shred of goodwill that can be salvaged by supporting Kurdish national autonomy, combined with support for reunification of surrounding Kurdish demographically preponderant territories (including a nice big chunk of Turkey). If Turkey objects too strenuously, they can be kicked out of NATO and economically sanctioned, and replaced in NATO by Kurdistan. In any case, I don't think that Turkey has received sufficient punishment for the Armenian Genocide.

#57 ::: Neil Willcox ::: (view all by) ::: June 14, 2008, 03:09 PM:

Zander @6 With a monarchy you have a statistically measurable chance that the throne might go to someone who is fundamentally decent and isn't willing to do whatever it takes to get and keep power.

(In response to the following discussion of pros and (mostly) cons of monarchy)

What Monarchy is better than is constant civil war(s), of might-makes-right warlords overrunning your home three times in a generation; it's more stable over human scale timespans allowing people to invest time and effort in making things better for themselves and their children. Importantly, it turns warlords into landlords.

When the alternative is (for example) having your home and fields burnt or being taken by slavers, the feudal system, which gives you some minimal rights and some minimal protection and it's in the interest of the nobles to uphold those minimums, is an improvement.

We've worked out better ways of doing things, and don't need kings any more. When we did, Zander was absolutley right. Today I don't want a landlord ruling me. But it's still better than a warlord.

#58 ::: FungiFromYuggoth ::: (view all by) ::: June 14, 2008, 05:56 PM:

Earl Cooley III @ 56 - Wow. Congratulations for making benevolent monarchy seem like a realistic plan.

Let's leave aside the colonialism involved in Western power redrawing borders in the Middle East (which has worked so well in the past), leave aside the wisdom of destabilizing an actual Islamic democracy, and even handwave away that part of Greater Kurdistan lies in Iran. Who knows, maybe we can swap 1/3 of Iraq for Kurdish Iran?

Here are my actual questions:
1) How much of the preponderantly Hispanic US Southwest should the US give back to Mexico?
2) What else would be required to sufficiently punish the United States for the genocide of First Nations people?

#59 ::: Avram ::: (view all by) ::: June 14, 2008, 06:17 PM:

Earl Cooley III: As for Iraqi's hating the US, there is perhaps a shred of goodwill that can be salvaged by supporting Kurdish national autonomy

Like an alcoholic trying to rationalize having just one more drink, 'cause, see, this time's gonna be different.

#60 ::: Earl Cooley III ::: (view all by) ::: June 14, 2008, 06:43 PM:

FungiFromYuggoth #58: 1) How much of the preponderantly Hispanic US Southwest should the US give back to Mexico?
2) What else would be required to sufficiently punish the United States for the genocide of First Nations people?

1) Ask me that question again after Mexico gains a credible nuclear deterrent, and also after they cooperate with other nations of Central America to create an autonomous homeland for the descendants of the Maya Civilization. Spain should, of course, pay for the bulk of the expense of the autonomy effort.

2) A few hundred years worth of rent at prevailing rates over the years paid out to survivors of the First Nations, financed by nationalizing and confiscating the assets of enough of America's top billionaires to cover the expense should do it.

Also, your idea of swapping 1/3rd of Iraq for Kurdish Iran sounds like an equitable idea. Thanks for the suggestion; that would help normalize borders on a more cultural basis.

#61 ::: Earl Cooley III ::: (view all by) ::: June 14, 2008, 08:01 PM:

As a matter of public disclosure, I should mention that I am not certified as a utopia designer.

#62 ::: John L ::: (view all by) ::: June 14, 2008, 09:48 PM:

Earl Cooley #60,

But, if 1/3 of Iraq was swapped for Kurdish Iran, wouldn't that eliminate Iraq's only deepwater port at Basra? IIRC that was Iran's objective back in their earlier war; to retake Basra and the rest of the Persian Gulf coastline in the area.

#63 ::: Earl Cooley III ::: (view all by) ::: June 14, 2008, 11:55 PM:

Giving Basra to Iran would certainly make the land swap deal more palatable to Iran, I would think. The central remnant of Iraq (after the creation of Kurdistan) could then be ceded to Jordan.

Of course, we'll have to get Halliburton's permission to make any of this happen. Hopefully, they'll see the economic advantage that improved stability in the region could enable.

#64 ::: Graydon ::: (view all by) ::: June 15, 2008, 12:08 AM:

Go, Avram!

Iraq is not fixable.

To use the pungent marketing phrase, the United States has shat the bed. Unrecoverable disaster.

The sooner you get out of there, the sooner the problem stops getting worse.

#65 ::: albatross ::: (view all by) ::: June 15, 2008, 12:44 AM:

Earl:

I claim no great expertise here, but it sure seems like breaking a country up and handing the pieces to different groups, while effectively setting up two or three new independent countries and placating their neighbors, would be harder than just getting the one country functioning in some minimally decent way. Given that we couldn't do the easier one of these, why should we expect to be able to do the harder one?

At any rate, plans that involve breaking up NATO and going to war with Turkey (both pretty much guaranteed) are probably worth thinking pretty carefully before we go with them.

#66 ::: Dave Bell ::: (view all by) ::: June 15, 2008, 02:51 AM:

I know we're the wild-eyed imagineers.

Do we have to pretend to be Republican idiots while we're doing it?


#67 ::: CHip ::: (view all by) ::: June 15, 2008, 12:12 PM:

albatross@65: I have seen plausible arguments that making the nation of Iraq out of three incompatible regions was a mistake in the first place; I'm not sure forcing the ~40% of non-Shi'ites in Iraq to stay under a regime kissing up to non-Arab Shi'ites is the best choice. I don't know that there are any good choices left; I'm just not convinced that unity is the least-bad choice.

#68 ::: Earl Cooley III ::: (view all by) ::: June 15, 2008, 03:42 PM:

CHip #67: I don't know that there are any good choices left

That's a fair assessment. In the wise words of WOPR, "the only winning move is not to play".

#69 ::: Edward Oleander ::: (view all by) ::: June 15, 2008, 04:14 PM:

#50 - David - I knew there had to be an elegant name for it. Thank you...

#55 - Alex - I actually agree with Avram here. Scalia seems to think that a leader backed by God has the right to rule by fiat (an over-simplification, but close enough), and that Bushy Squirrel is, indeed, backed by God.

BTW: I don't believe I, in ANY way, called for Scalia's death. I merely pointed out that his existence is useless at best, and actively harmful to humanity in any case. I'm not sure how you made the logical leap that includes me calling for his demise.

Don't get me wrong... In the same way that I mourn for the loss of a good man (like Tim Russert), I also cheer the deaths of evil men. That jubilation would be severely dampened if it happened by assassination, because the entropic effects on society caused by such events last for decades, and are cumulative in ways that effectively counteract the positive effects of losing the bad guy.

If the Threefold Law is correct (and I really hope it is!), then Scalia's Kosmic Kumuppance will almost certainly be fatal. I wouldn't, by deed or advocation, try to make it so, but a good long lingering bout of bladder cancer wouldn't earn him a sympathy card from me.

#70 ::: Randolph ::: (view all by) ::: June 15, 2008, 11:02 PM:

Graydon, #64: "Get out" has to be first step, but unless we want another war, there has to be a second step. I figure we've got about 10 years to take it.

#71 ::: Craig R. ::: (view all by) ::: June 15, 2008, 11:23 PM:

What I find more disturbing in that essay is Scalia's attitude as demonstrated by this passage:

... if I subscribed to the conventional fallacy that the Constitution is a “living document”-that is, a text that means from age to age whatever the society (or perhaps the Court) thinks it ought to mean.

If one believes that the idea of the U.S. Constitution as a vital, "living" document is a fallacy, the obvious next step is to regard the Constitution as a "dead document," and the next after that is that the Constitution is just "a damn piece of paper"

And I also think he is wrong on the choice of words. Instead of "thinks it ought to mean," ther wording should be "what the society needs it to mean."

If we ought to leave it as impervious to change, lets just roll back the little items like Miranda rights, access to meaningful legal counsel, and the affording of the franchise to vote to women and others who may lack the means to pay the poll tax.

#72 ::: P J Evans ::: (view all by) ::: June 15, 2008, 11:29 PM:

Scalia clearly failed at least one civics class. How the heck has he managed to hide from everyone that he's a full-out divine-right-of-monarchy guy?

#73 ::: Avram ::: (view all by) ::: June 16, 2008, 12:50 AM:

Craig #71: If we ought to leave it as impervious to change, lets just roll back the little items like Miranda rights, access to meaningful legal counsel, and the affording of the franchise to vote to women and others who may lack the means to pay the poll tax.

In 2000, the court ruled in Dickerson v US that Congress could not overrule the Miranda decision. Scalia wrote the dissent, arguing that it could. He joined with the majority earlier this year in Crawford v Marion County Election Board, holding that Indiana's law requiring voters to show a photo ID (a poll tax by other means) wasn't unconstitutional. I don't know if he favors the other roll-backs you mention, but it wouldn't surprise me.

#74 ::: joann ::: (view all by) ::: June 16, 2008, 03:22 PM:

P J Evans #72:

He clearly failed at least one constitutional law class. Which is a lot worse. Or else, that being mildly unlikely, had it in for the professor for some obscure reason.

#75 ::: Craig R ::: (view all by) ::: June 17, 2008, 02:07 AM:

Avram # 73

-- Yep, to him it just a damn piece of paper...

#76 ::: praosegod barebones ::: (view all by) ::: June 17, 2008, 05:17 PM:

Earl Cooley @58

This always seemed like a civilised place to hang out. It's disappointing to find that there are people here that think it's ok to advocate ripping another country to shreds as a way of 'salvaging' something from an American fuck-up.

The fact that the country you're advocating doing this to is the one that's been my home for eight years makes this of more than merely academic interest to me.

You do realise that if you think Turkey needs to be punished for the Armenian genocide, you probably ought to be thinking about ways in which the American people should be made to pay for actions of the pre-revolutionary British?

In other words - Turkey stopped being an imperial province of the Ottoman Empire in the 1920s, and had a revolution, a new constitution etc. I'd like to suggest that historical discontinuities of that sort make some kind of difference to whether they should be punished for events that happened before then.

#77 ::: P J Evans ::: (view all by) ::: June 17, 2008, 05:23 PM:

#76
I hope after the third-hand-memories generation takes over, the Armenians may be less militant. (I also have to say that they're a cohesive ethnic group.)

#78 ::: Rob Rusick ::: (view all by) ::: June 17, 2008, 07:22 PM:

P J Evans @77: It may be that historic tragedy helps make a cohesive ethnic group. The Shiite/Sunni divide goes back more than three generations. The Jewish people still remember Masada.

On the other hand, we have a media culture which has become increasingly complex (and don't think I'm not looking at you, Gutenberg), and it is harder to preserve the isolation of viewpoint which a cohesive ethnic group could maintain. Maybe three generations in our corrosive media culture (and I mean corrosive in a descriptive, rather than judgmental, sense) would be enough.

praosegod barebones @76: An account read long ago (so possible wrong on some details): A Turkish ambassador visiting New York City in 1917 was taken to task by a group of American reporters for the Armenian genocide. In response, he swept an arm out over the room and asked, "Where are your Indians?"

Doesn't excuse anything, of course, but "pot, meet kettle...".

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