More on Constitutional Powers

Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

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17 Responses

  1. Dave says:

    Despite what constitutional dim bulbs like Sarah Palin, Susan Collins and their ilk believe (originalists by butt), we’re not perilously close.

    I think we’d be much further away if Al Marri v Puciarelli was heard by the SCOTUS.

    This was Al Marri v Wright, and it addresses one of the very issues that was discussed. By stripping habeas rights from resident aliens captured in the US per the Military Commissions Act, the language of the statute was offensive to both The Suspension Clause and The Fifth Amendment. The case was dismissed as moot when Al Marri was transferred back to federal custody. I’m surprised this case did not make it into the piece.

    Furthermore, we should not forget that the key holding of ex-Parte Milligan, one of the key Civil War-era precedent, in that transferring citizens or aliens out of the civil court system into the military system without an opportunity to challenge one’s detention is unconstitutional so long as our civil court system is functioning.

    If a case of this sort ever does make it to the SCOTUS, I expect Milligan to be a key citation.Report

  2. Kyle says:

    Random side-note, now that I’ve started watching NCIS, Special Agent Gibbs basically threatens to do that every other episode with nary a peep and this is on America’s most watched show.

    Sad story but it just goes to show how we care more about order than law when dealing with people suspected of wrongdoing.

    I would suggest that perhaps if we were concerned about such abuses we should amend the constitution but too late we’ve had one since 1791.Report

    • greginak in reply to Kyle says:

      My GF likes NCIS but the that kind of thing makes it unwatchable. If i want the hero to be a quasi-superman who sovles everything just by being grim, tough and he commands it to be solved, i’ll watch CSI Miami. Its just silly enough to be fun.Report

      • Will in reply to greginak says:

        “Now that I’ve started watching NCIS . . .”

        You’ve gone down a dark and dangerous road, Kyle. Have our TV podcasts taught you nothing?Report

        • greginak in reply to Will says:

          good point. there is all the Star Trek in the world available on the web. Why is NCIS needed? Or a spinoff?Report

        • Kyle in reply to Will says:

          I will say this, the advantage to watching a popular non-niche show for a change is the lack of fear that will be canceled any given week. It’s the complete opposite of watching anything touched by Joss Whedon or David Eick.

          For greg, “quasi-superman who sovles everything just by being grim, tough and he commands it to be solved” that’s such a great description of cliche male protagonists, though withdrawn might be more accurate than grim.Report

      • JosephFM in reply to greginak says:

        I can’t watch CSI Miami because 98% of the time, it’s obviously not Miami. Miami does not look like California, despite what you may think.Report

  3. Jaybird says:

    This is why the Jose Padilla case was important.

    I defended Ashcroft. I am ashamed that I defended Ashcroft.

    Charge them or let them go.Report

  4. Rufus says:

    I’m actually wondering what happens when we capture illegal aliens, because his point, as I understand it, is that rights adhere to the person and are not doled out by the state, so they would, hypothetically, have the same rights as an arrested citizen. Is that what’s been happening?

    The problem is, in my mind, that rights are innate to humans, which should compel states to ensure those rights, but making the state the upholder of rights already suggests that rights are at their discretion. They uphold them but they could choose not to. But, absent any thunderbolts raining down from Zeus, what other choice do we have? I realize that’s not entirely clear, but I think Hannah Arent made sort of the same point about refugees- if rights adhere to the person, they should have the same rights as citizens.Report

    • Michael Drew in reply to Rufus says:

      Rights are a social relation that we value enough to make the claim on their behalf that they adhere inherently to humans. But we have never held all the rights of citizens to apply to all non-citizens. Nor can there be a calculus derived by humans that gives the extent to which human misdeeds rightly degrade a human’s claim to his inherent rights. So even if we grant that rights are inherent initially, certainly we can’t claim that our system for determining how much of those rights a person relinquishes by committing certain actions proscribed by the society (via the state) is anything but a constructed reflection of the aggregate values of that society, and likely an arbitrary one at the margins. The simple need of society to institute an actual functioning punitive system (as opposed to an ideal one that can perfectly balance inherent rights with their relinquishment due to misdeed) for the breaking of norms would invalidates any claim that we recognize humans’ innate rights as opposed to recognizing our social (re) constructions of them.

      Rights are the social construct we use and attempt to vindicate as much as we can consistent with what we want for society (liberty, security, happiness, etc.) against the brute fact of differences in power among humans and groups of humans in the world. The notion that they inhere to humans undifferentially and without reference to the norms of a given society is a profound obstacle to an accurate understanding of what rights really are. And they really do exist, and they really are crucial to liberty, so it behooves us to not be fantastical about their nature.Report

      • Michael Drew in reply to Michael Drew says:

        I should clarify that I do not claim that none or even that any particular of the rights accorded to citizens in our society are not presumed to be reserved also for non-citizens. Perhaps every single one does. But I don’t think it’s accurate to claim that it is established that all the Constitutional protections of our system apply in all cases to all persons our state may come into contact with in all circumstances. The particular circumstances do matter in some cases, from what I can tell from current SCOTUS and other legal reasoning I have seen. A claim that all the protections in our Constitution flow from rights that inhere in all persons everywhere (and not from the particular concerns for liberty that the drafters of the various Amendments in question wanted to protect for citizens and in many cases [but again, I don’t think all cases] non-citizens) would seem to invalidate all the reasoning that has thus far gone into figuring the extent and limits of the protections offered in the Bill of Rights and the Constitution. It is a radical idea.Report

      • Michael Drew in reply to Michael Drew says:

        Also, I should say that while I tend toward militant anti-mysterian views of most things in the world, and thus find this view of rights necessary given the importance of the thing in question, i acknowledge this is a contentious view of rights, and would welcome engagement on it to potentially help me see how I may be failing to see where an inherent view of rights is either a more realistic or a necessary way to understand them.Report

        • Publius in reply to Michael Drew says:


          Interesting thoughts. I think you may have it backwards, though. Rights are not the “social construct,” at least not if you buy into the prevailing theories at the time of this nation’s founding. Certain rights are fundamental and are bestowed upon us by reason of existence. They are not contractually provided by society. You are correct in noting that the US government can, in fact, remove some of those rights if we violate certain rules, and the extent to which our fundamental liberties are removed depends on the extent to which we violate those rules. That doesn’t suggest we contract to receive our rights, but rather, we contract to determine when we are willing to surrender our rights for the sake of an orderly society.

          The Constitution is our ultimate contract. In it, we say no matter what occurs, and no matter what smaller contracts can be made, the federal government cannot remove certain of our liberties without following a certain process. For life, liberty and property, we define the process by which our rights may contractually be removed as “due process.” That doesn’t always mean the same thing to all people (i.e., due process can exist in many different forms). For US citizens and those on US soil when they break a law, we have a mechanism that has been developed over the past 200 plus years that works pretty well. For refugees, we have a similar process that takes into consideration agreements the US has made (in accordance with the Constitution, so it complies with our ultimate societal contract) with other nations. For enemy combatants who are captured overseas, we have slightly different mechanisms that take into consideration where they are captured, what is available, etc. That said, we never abandon the concept that everyone has a right to life, liberty and property. Nor do we abandon due process. Due process may look and feel slightly different depending on the circumstances, but the foundation of anything purporting to be due process must be “fairness to the accused.”


          • Michael Drew in reply to Publius says:


            Thank you taking the time to respond. While the above does reflect my overall view on the questions, I was definitely engaging in some thinking out loud of my own there as well, and by no means do I have an entirely resolved view of the matter. I agree with most everything in your second paragraph about the way in which the essentials of the process we guarantee should apply universally even if the particulars vary somewhat based on circumstance (e.g, no one should be held incommunicado without explanation and a chance to challenge it, regardless of whether some other elements of precess are not consistent in all cases). That is by and large a question of the particulars of the system procedural and legal rights that are a standing institution in our society.

            The main intended thrust of my comments were directed more toward questioning the metaphysical grounding of the idea of rights. In that respect the possibility that I would directly challenge the Founders conception of the source of men’s natural rights was certainly intended to be a very live one. This is an area in which reams have been written by literal professionals in the field over the course of centuries. It is just possible that I may have been a bit hasty to arrive at such unequivocal conclusions, though as I say I think ultimately my view won’t stray far from where I put it above. I had intended to post a substantive rely to your first paragraph here in a timeframe where you would likely come back to notice it, but I do not think I can do that sufficiently under that constraint. But rest assured, I am at work on it. I’m no Immanuel Kant, but regardless how comprehensive my ultimate answer might be, I’d like to make sure at least I am persuaded by it. For that I need to take my time and reflect on what has been said before me. I see that you have a place of your own where you publish. I ‘ll try to be in contact with you there when I have further thoughts on this in which I have confidence. I’ll also post them here for consistency’s sake. (I’m also working on starting up a blog of my own, though I’m starting to build up a bit of a bottleneck of just-begun posts. If I resolve that I’ll put what I come up with there as well.) I can’t say when that might be. But I definitely do thank you for sharing your thoughts.Report

            • Publius in reply to Michael Drew says:


              thank you for your thoughtful response. I enjoy thinking on these matters and being challenged in my assumptions. I look forward to a lively discussion when time permits your full response. Please do feel free to post a comment on my site (or email me and I can post your thoughts). at gmail.comReport

          • Michael Drew in reply to Publius says:

            Here’s one point for discussion that would help me begin to clarify my view, though. To those reading who disagree with my stated view and think that humans do indeed have certain rights that are, as Publius puts it, ” bestowed upon us by reason of existence,” as opposed to my view that this is a very salutary, indeed perhaps necessary, fiction that we assert in order to enforce as much as possible certain constraints on the treatment of the less powerful by the more powerful: what is the metaphysical status of these rights? What are they/what do they consist of/where do they come from? I don’t deny the value of making the assertion that they exist by virtue of the nature of humans, or indeed the power of such an assertion. But without at least some answer to the question of what they are, and how we come by them (beyond merely saying that we come by them “naturally,” which is itself merely an assertion) I don’t see how we have moved to a point where we understand how these rights actually exist except insofar as we assert that they do. Which might, after all, be enough.Report

  5. JosephFM says:

    Given how truly insane the country went in 2001, I’m surprised it’s taken this long.

    Damn right, Jaybird. Charge them or let them go. Nothing has soured me on Obama like the fact that this stuff is still happening.Report