Sheridan: Con-Law

RULE OF LAW

Attorney Michael Mullane spoke on NPR concerning what men have died fighting for, the soul of the nation, essentially.

Here is how he described the Rule of Law, the fairy dust of our beliefs, which, as Tinkerbelle warned, only exists so long as you believe it is true, otherwise, poof!  -- gone in an instant.

This is why we care about the soul of the nation and do not wish to see ourselves reduced to the least common denominator of humankind, mankind being what it is and all.  Yesterday insurgents murdered a busload of school children in Iraq.

GENEVA CONVENTION OUT, TORTURE, INDIGNITY FINE & DANDY

The Army doesn't want to see the U.S. allow torture of detainees to obtain information.

Sen. John McCain, who endured terrible abuse as a prisoner of Hanoi during the Vietnam war and sponsored a bill outlawing the policy certainly doesn't want to see us resort to torture and degrading treatment of our enemies.

Why?  What could've come over such good fellows that they don't see the advantages of slowly roasting someone you've captured on the battlefield?

One answer is that "the battlefield" today isn't the same battlefield as the one on which Wellington fought Napoleon to his Waterloo.  It probably wasn't then, either.  Today the battlefield in GWOT (Global War on Terror) is all over the world, wherever there's a telephone and a supply of diesel oil and bird-shit.  Highly explosive, the latter.  See Oklahoma City, the bombing of the federal office and court building, called the Murrah Building after the federal judge.

Why is the Army opposed? 

For two reasons:

1.  Because it's people are put in harm's way and are captured themselves.  We don't want our captors breaking our arms, laughing, and claiming that what's sauce for the goose is sauce for the gander.

2.  Because the armed forces of the United States teaches its members and recruits that they are fighting for the United States of America, meaning its laws and its values.  If these aren't worth fighting for because they've been amended to bring us down to the level of the enemy we're fighting, our good men and women may question whether this is worth fighting and dying for.  Fighting and dying for noble and honorable ideals is one thing.  Fighting for the right to abuse prisoners may be something else.  Why give the enemy a propaganda victory to break the will of prisoners and fighters to resist?

FERGEDDABOUDIT

George, you're doing a heckuva job.

WMD
Iraq insurgency
Katrina
Harriet
Libby
Alito?  We'll have to wait and see.  I like smart people with experience, assuming they're not off the deep end.

Today the fight begins anew for the soul of the nation.

Meanwhile the real soul of the nation lies in the Capitol Rotunda.  Rosa Parks.  Taught us more what it is to be an American than either political party.  Got fed up with Jim Crow and refused to give up her seat to a white man.  Got arrested.  Rev. Martin Luther King, Jr., 26, backed her.  Montgomery bus boycott.  Merchants were screaming.  White merchants, black customers, green dollars.  You can figure which won.  Sparked the Civil Rights Revolution.  Country decided right was right, after way too long pretending wrong was right.

Social conservatives told blacks, "Don't move so fast."

Social conservatism means I can deny you your rights because I don't like your looks, or gender, or sexual orientation, or religion, or the color of your eyes for that matter.  It doesn't make any difference what the difference is, because if we don't like you and don't see any difference, we'll make one up.  You believe in one God?  Three-in-One?  Many?  None?  You have your doubts?  We'll fix you.

Liberals say, "Give the next guy a chance."

Conservatives say, "Screw that."

Then we fight over who gets to decide.  The majority?  The majority either favored or tolerated Jim Crow (legalized racism, white supremacy).  The Warren Court blew apart the foundation in Brown v. Board (1954).

Judicial activism, this is called, in the name of equality.

Social conservatives don't think that the Supreme Court ought to be in the business of freeing people.

Too bad.

When the other institutions fail to free people, we look to judges, like it or not.

Harriet Miers was a bust.  Sam Alito, according to the reports, is a social conservative.

Let's hope he doesn't get too hung up in the forest of federalism to see the human trees that federalism was designed to protect, as well as the states.

When the Warren Court handed down Brown v. Board (1954), the public school integration decision on equal protection, it was subjected to the criticism that it was too "activist," that it was "legislating from the bench," etc.  But Congress had refused to act to pass a civil rights bill for years (the Senate's Southern Bloc defeated every c/r bill passed by the House), and the president in 1954, Ike, wasn't terribly sympathetic to eliminating Jim Crow rules that so severely disadvantaged blacks.  So if the Supreme Court didn't act, people like Rosa Parks would be forced to the back of everything for a lot longer.  The Court stepped up, and in, to the fight to kill racial segregation and white supremacy, two of of the defining features of this country for most of its existence.  These horrid notions first enslaved blacks and then relegated them to second or third class citizenship.  During WWII, German POWs held in the U.S. were fed in "white" mess halls, while black American soldiers were relegated to black mess halls, I've read.  Baseball player Jackie Robinson fought against such treatment.  In 1948 Pres. Harry S. Truman ordered the Army (but not the Navy) desegregated.  It was a mess.

If the power centers of first resort refuse to lift a finger, the power center of last resort just might.

The Supreme Court is our power center of last resort.

Maybe we like it that way, and don't like when nominees to the Court appear reluctant to protect real humans from government excesses.

In 1937, in fn. 4, Carolene, the Court said it was going out of the business of overturning ordinary economic and social legislation, as it had been doing since 1905, at least, but would continue to monitor legislation that violated the text of the Constitution, unfairly altered the political process, or disadvantaged powerless and isolated identifiable ("discrete and insular") minorities.

That's the way it's been since then, except things began to change in 1995 with Lopez (the school-gun case) and Morrison (VAWA).  But Raich came along last term (2005), the medical marijuana case that supposedly said something about the extent of the Commerce Clause.

The crystal ball is a little cloudy at the moment, with a vacancy (soon) on the Court to replace the retiring Sandra Day O'Connor.  Justice O'Connor, while a Republican and conservative, had the wisdom not to try to impose an ideology on the nation.  She tended to hold the middle ground.  How?  By deciding cases not so much on broad ideological grounds but by noting particularly persuasive facts.  That staved off the ideologues so that they could come back another day without fomenting a civil war, as did Roe in 1973 and Casey which reaffirmed it in the '90s.  Roe/Casey has fueled the war of ideology wracking the nation for much of the past three decades and counting.

Enough.  You'll be reading all about it if you read the newspapers and watch TV.