In deference to poor Cassandra, who wants more Alito, I'll point you to Mondo Alito at PajamasMedia, which has gathered a lot of posts from all sides of the debate.
Meanwhile, from the old journalism school, The Ft. Worth Telegram has a very useful roundup:
Sen. Mike DeWine, R-Ohio: This hearing is really our opportunity to fully and fairly evaluate your qualifications for the high court, but what I really want to do is give a lengthy explication of my feelings about Roe vs. Wade. The mere fact that Roe has been upheld for more than 30 years does not mean that it’s entitled to special deference. Is Roe Supreme Court precedent? Certainly. But in my view, it is not super-precedent or super-duper precedent. It is precedent. Nothing more. Now, I want to turn to another topic ...Unfortunately, I haven't been able to find a transcript for Biden's war-powers question. It's one of the more interesting Constitutional issues, and a relevant one. The closest I've found is this account, which isn't thorough enough.
Though I am not a lawyer or a judge, I am a citizen, and one who believes firmly that the final right to interpretation of the Constitution lies with the People. As such, I think we all have every right to develop our own opinion of what the Constitution means and ought to mean, independent of what the courts and legislatures say it means. I'm glad to consider arguments from either source, but also from history and reason. In that spirit, let's examine the War Powers question.
Alito is correct to say that the issue is unsettled as a matter of Constitutional law. On the other hand, as a practical matter there is something of an agreement: almost every President of the 20th century 'went to war' somewhere without a formal declaration of war from Congress. Congress retains the power to declare war, and in fact the power to stop it -- by cutting off funding for military operations. Yet it has decided to allow the President a great deal of liberty in conducting military operations.
Even the War Powers Act, passed because of concerns arising from Vietnam, only requires the President to inform Congress. So, as a practical matter, yes -- the President could invade Iran tomorrow, so long as he informed Congress that he had done so.
The Supreme Court has not declared the War Powers Act to be constitutional or unconstitutional, because it has never been asked to do so. Neither the Presidents of recent years, nor the Congress, has desired a formal ruling that might go against them. They have chosen, reasonably, to conduct themselves by informal compromise.
Biden apparently asked if the President "can just go ahead and violate international law ("that's the administration's position," said Biden)."
The answer to that question, as I understand it, is that it depends on what is meant by "international law." If it refers to anything informal, or treaties we haven't ratified but which have been ratified by lots of other countries (e.g., the ban on cluster bombs), or the fact that lots of allied countries have similar laws 'so we should have one too,' etc., then neither the President nor Congress is the least bit bound by "international law."
If it means "formal treaties which the United States has signed and ratified," then the US is bound by them unless -- I would argue, and support any President or Congressman who acted on this understanding -- that treaty violated one of the protections of the US Constitution, such as freedom of speech.
However, even then there is a lot of room. What happens if the US acts in a way it feels is consistent with the treaty, but (say) France and Russia feels is a violation? That's a question I would like to see addressed by Alito, if anyone feels inclined to ask a real question. To some degree there's a domestic analogy in the NSA spying -- if the President and the US Justice Department feel it's legal and constitutional, to what degree does that merit deference from the Supreme Court?
My sense is the answer is, "To no degree in cases of rights; to some degree in cases of power; to a great degree in cases of international opinion."
The Supreme Court is meant to be independent of the other branches. If the President, the lawyers at the Justice Department, and the majority in both houses of Congress agree on a point, the Court should take note of it. However, if it is deciding a case that influences the fundamental rights of US citizens, it ought to be willing to decide in favor of the rights of citizens even if there is near perfect unity among Congressmen and the President's men. If the Court is convinced that fundamental rights are being violated, it ought to set the matter straight in spite of every other branch of government.
In cases where rights are not an issue, but the powers of government are, the opinion of the President and the Justice Department should be taken into consideration along with the sense of Congress. However, they should be of no more weight than the opinions of state-level justice departments, in Federalism cases. If the Federal Government and Texas disagree about whether something is legal, they ought to be equals before the court.
If a case of "international law" came before the Court, the fact that the President and Congress believed they were doing right should have great weight. France or Russia's opinion should have no standing at all. The Supreme Court should consider only the question of whether the President or the Justice Department's interpretation holds water, and is consistent with the Constitution.
There is an underlying principle here, which is this: that the Constitution exists for a purpose, and that purpose is "to secure the blessings of liberty to ourselves and our Posterity." Fundamental rights are absolutely essential to the blessings of liberty, and protecting them must therefore be the first business of the Court.
Ensuring the success of Federalism is important to the blessings of liberty, as it allows for different people, who will have different understandings of what liberty is and how they want to live, to have the chance to live according to their lights. Balancing Federal and state power is therefore an important concern of the Court, and it should give equal deference to both sides.
Finally, the ability to decide for ourselves as a People is one of the fundamental blessings of liberty. We have won it, and we have defended it; and this government was instituted in part to protect that blessing. The Court has no business handing away any part of that liberty. It cannot give, as a gift to any foreign nation or entity, what they have neither the right nor the power to claim.
No comments:
Post a Comment