Friday, August 18, 2006
The Washington Post, in today's Editorial, agrees with the need for a judicial review of aspects of the NSA's terrorist surveillance program, but they also think that review should be judicious. The Editors described Judge Taylor's decision as "neither careful nor scholarly," but rather a "judicial misfire." The subtitle of the Editorial characterizes the decision as "full of sound and fury," hence the title of this post (Reference Shakespeare).
Reasonable people may disagree, but Judge Taylor's hysteria from the bench is indeed unhelpful towards the desired end of a serious discussion of the constitutional issues involved. Congress and their temporary allies in the Judicial Branch can argue breaches in Executive Power all they want, but there are clearly instances when Congress, the Supremes, and lessor Courts unconstitutionally abrogate to themselves oversight powers that are beyond those articulated in the Constitution.
There are serious questions about the constitutionality of the FISA statute itself, though not directly challenged by Executives now or in the past. There are serious separation of powers questions in the War Powers Act, and no doubt in the Patriot Act as well.
Court decisions are part of this Democracies lawful (and constitutional) means of resolving these issues, but the court's voices are not the only ones to be heard.
I am no legal expert, despite my desire and tendency to state opinions on law and the constitution.
But what I do know, is that there is a dangerous strain in public discourse on the Constitution and what it says, often echoed and enabled in the courts, whereby what one thinks or "feels" about what the Constitution "ought" to say, becomes more important that what it does say.
The public often rmains ignorant of the intricacies and debates on the finer points of the Constitution. That's understandable, and to be expected.
When such ignorance extends to a Federal Bench, then we are in danger of departing precipitously from the path of judicial precedent, and moving into the brave (not so) new world of "constructive" jurisprudence.
This kind of judicial malfeasance is nothing new, certainly not since the Warren Court, as evidenced as example by the wildly inventive and experimental Roe v. Wade decision.
But in the areas of counter-terrorism, war powers, and the role of the Executive as Commander in Chief during wartime, the courts have generally remained much more strictly focused than in other areas of law. That's been to their credit.
But it seems that since 9/11, whatever former restraint maintained a "wall of separation" between judicial activism and national defense, has largely crumbled.
As with other areas of law, partisans within the courts have been more assertive in offering "friendly jurisdictions" to political opponents of the current administration and our efforts against terrorism.
And it couldn't come at a more dangerous time.
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