George Bush is as fault for not having a vote.  It was this easy, provide the documents you get the vote.

I think that's a fairly silly statement. The documents were requested, and while there was still a question of whether they should be released, there might be a reasonable point to delaying action. However, as soon as it was made clear that those documents would not be released, it became a delaying tactic on the part of Senate Democrats. That's not to say that they don't have the right, under the current Senate rules, to use procedural delaying tactics. I do not retreat from my previously-states view on the Constitutionality (or lack thereof) of the Nuclear option (Frist's, that is, not the one traced by Gold & Gupta in The Constitutional Option to Change Senate Rules and Procedures, 28 Harvard Journal of Law & Public Policy 205); merely that it is unwise, for the Democrats to continue to filibuster (which is what this is, whether they deny it or not) since continuing to use those tactics as a matter of routine will swiftly lead to their removal from the rules by correct procedure at the start of the next Senate.

As an originalist, something about this strikes me as slightly unsettling, but it's not the same thing that's probably troubling democrats. I don't have strong views one way or the other regarding John Bolton, in any capacity; but the process concerns me somewhat.

I had to go back and check the text more specifically, but something strikes me as being a little off here. The clause (Art.II §2 Cl.3) says:

"The President shall have the power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the end of their next session."

What's troubling me is that word "session". In current usage, of course, each Congress is comprised of two sessions - hence why the Senate's website divides votes for each Congress into first and second sessions. Thus a modern reading of the clause effectively means that a recess appointment can span an entire Congress - two years!

I can't support this feeling without doing a little more research, but this seems contrary to the intent of the Framers, insofar as it dramatically increases the power of the Executive. A modern reading of the clause effectively says that a President may ignore the second Senate of his Presidency. I say "a modern reading", of course, but I am an originalist; I do not accept that the Constitution's meaning necessarily evolves with our language. It means today what it meant when it was adopted. That constitutional knife is double-sided - and damned sharp! We need an essay on the original understanding of the recess clause; I will not try to write it here, but I will offer an outline of what it might contain. (Such an essay apparently already exists! The Right Coast's Mike Rappaport, of the University of San Diego School of Law, wrote such an article last year, The Original Meaning of the Recess Appointments Clause. Hat tip to Jeremy at ChargingRINO).

In earlier times, state legislatures and the Continental Congress were not in session throughout the year, due to (I suspect) a combination of a paucity of business and (particularly in the case of the Continental Congress, the sheer physical demands of assembling the body in one place for any period of time. IIRC, during (and for a long time after) the revolutionary war, the Continental Congress was homeless and nomadic, further hampering the business of assembling it and transacting business.

The Framers must have been aware of these concerns, and the chaos they brought to any attempt at national government. They included in the Constitution the explicit instruction that there would be a single, official seat of government, possibly to remedy the second point I raised above. But they also included a clause that said that when Congress was not readily available to debate and confirm (or deny) executive appointments, the President should have the authority to fill those vacancies in the interim. It stands to reason that there was a strong presumption that an office which is necessary is an office which should be filled. The mechanism, it seems to me, was foreseen to operate thusly: if the Congress wasn't in session, the President makes a recess appointment. Once Congress returns, it either votes to sustain that appointment, thus making it official - or it does not, the President therefore nominates someone else, and the process repeats until Senate confirmation. At midnight on the day following the end of the session of Congress, the person in the office filled by recess appointment will be a person who has been confirmed by Congress.

So that's a very, very ad hoc description of how I think the clause might have originated, and how that system would therefore have been understood to operate. I would want to do a lot more reasearch before saying any of this definitively, specifically, into actual pre-1787 American legislative practise, with a particular focus on the Continental Congress and post-1776 state constitutional practise, and also look at the first hundred years of the recess appointment's use, just to start with. However, with those qualifications in mind, it seems to me that we need to discard our current understanding of "sessions" of Congress. It seems to me that the President can ONLY use the recess power when the Congress is not in session; therefore, in any situation where the President has the power to fill a vacancy via recess power, the Congress' SESSION has ended. In other words, the meaning of "session" in the legislative calendar should not necessarily be seen as the same thing as a §2 Cl.3 session. Put more bluntly: if the President has the power to make a recess appointment during a weekend, the appointment expires at 11:59:59 the following Friday.


"He who lives by the ipse dixit dies by the ipse dixit", as Scalia once wrote (487 U.S. at 726); and I am chained by my interpretative philosophy. Although originalism is too often castigated as an excuse for conservatism, in my view - admittedly, not an unbiased one - it is no such thing. The fact that an originalist reading of the constitution, in my view, militated against the nuclear option, and seems to militate against the ongoing abuse of the recess appointment power (I say ongoing, because President Clinton used it 140 times; see Henry B. Hogue, CRS Report for Congress: Recess Appointments: Frequently Asked Questions), should perhaps indicate - for better or worse - how false this conflation is.

This view, of course, will do nothing to improve my standing in GOP circles, but my loyalty is to the Constitution first, and the party second. This decision by the President is not entirely unexpected (Democrats are already setting the stage for the same "document demand filibuster" against John Roberts as was used to torpedo Bolton; it thus stands to reason that the President should wish to send a "not so fast, speedy" signal to Sen. Reid), but I must again respectfully dissent from the party line.

Joseph Bracken Reed would have made the best President by far. Too bad he is not listed.

Do you mean Thomas Bracket Reed, the Speaker of the House through most of the 1890s, perhaps? If you do, I agree. Asked if the GOP might nominate him for President, Reed replied "they could do worse - and I'm sure they will".

(And who was also most unfairly and rapidly passed over in Julian Zelizer's otherwise excellent The American Congress, I might add.)

Of those listed, it has to be Newt - and at time of writing, if he can figure out a way to get through the primary process (a problem that also dogs my own preferred candidate), he might yet be.

On #53,

I say the Court is wrong.
You say the Court is right.
Your evidence is that the Court said what it said, and therefore it is right.
The Supreme Court's reasoning is therefore right because it validates itself.
Excuse me, but my circular reasoning alarm just went off.

First, you didn't say the court was wrong, and I certainly didn't say the court was right. You said you objected to Scalia's dissent; Scalia is dissenting against the court's verdict, and I therefore presumed that, since you disagreed with Scalia, Q.E.D., you agreed with the court's determination - so the obvious next question is, do you disagree with the court, with Scalia or with Thomas, all three of which reached different conclusions?

Second, I didn't cite the court as authority (since I disagree with the court's decision); rather, I noted that no party involved disputes the facts of the case, which is that Hamdi was (presumably, still is) a US citizen under US jurisdiction. This is precisely why the court is wrong in its judgement and Scalia is right in his dissent; the court and the government both yield that unless Congress suspended Habeas, Hamdi retains his rights. I see no reasonable basis for the claim that Congress has done so, and ipso facto, Scalia is correct in his opinion.

On #54,
The two cases are very comaparable in this regard.  The law does not distinguish between what is practical and what is not, especially under your absolutist interpretation.  If you believe that Hamdi carried his Constitutional Rights with him to Afghanistan then Michael Fay also carried his Constitutional rights with him to Singapore. Therefore, if you believe that Hamdi has standing to sue, then you must also believe that every American when they travel abroad carries into their legal proceedings the due process rights guaranteed them in the Bill of Rights.

I don't agree with this statement. They can only assert those rights while under jurisdiction. If the foreign court is willing to surrender them to US jurisdiction, then they can assert those rights; if not, they cannot. Hamdi and Fay BOTH carried their rights with them - the difference is that Fay was unable to assert his rights as a consequence of being beyond US jurisdiction. The only way Hamdi could lose his rights is if those rights were suspended by Congress, and the only way Hamdi could be refused those rights is if he was beyond US jurisdiction. The latter is uncontested by the government; Hamdi was in US jurisdiction. The question, therefore, turns on the former.

On # 62,
Congress does not have to use the word habeas corpus to suspend habeas corpus.

It has done on every previous occaision when it has suspended the writ, or authorized its suspension by the President. I say that Congress must clearly and unambiguously authorize or mandate the suspension of the writ, which they failed (or never intended) to do in S.J. Res. 23.

Exactly what part of the resolution implies that US citizens are exempt?  I see none.  Exactly what part of the resolution implies that detention without trial is not covered by "all necessary and appropriate force"?  There is none.

The lack of specific language. Uniquely among any group covered by this resolution, US citizens have constitutioanl rights; one of those rights is that the writ of habeas corpus may not be susended by Congress. To do that, both logic and precedent demand that they do so explicitly; they did not.

The only way to read this...

Wrong, wrong, wrong. Of course there are other ways of reading it. The intent was to bring to justice those people responsible for a terrorist atrocity; that is the clear and indisputable intent of Congress in passing the resolution. Everything else is subject to question. A better question is: if Congress specifically had in mind to abridge a constitutional freedom granted to US citizens, why did it not explcitly say so in the resolution? I suggest that Congress may well not have considered that US citizens were involved, and therefore saw no necessity to "specifically exclude" them. I'm not saying this theory is correct, but it is valid and reasonable, and it is consistent with the question of why they failed to explicitly suspend habeas in the resolution.

You speak with absolute assurance that you know the intention of Congress - you spoke to all 535 of them, I presume? Of course not. We look at what they actually passed; we look at the actual text, and try to interpret it reasonably. I contend that there is more than one reasonable interpretation, and I contend that if Congress intended to suspend Habeas, they failed to do so in accordance to eithe precedent or appropriate consideration. You clearly support Hamdi's detention; the text fails to explicitly say anything in support of your argument, so you're reading implication into the text to support your argument, and excluding other possible conslusions.

Put my state under martial law, arrest my state legislators and censor the press
If at the time, your state had seceded from the Union and was in a state of actual rebellion against the United States, its constitutional rights were foreit until such time as the United States Congress chose to re-admit Virginia. During the intervening time, the President can make war in whatsoever way he might equally make war against a foreign power.

By "my state" I was referring to the state of the person answering the question. It was just my way of personalizing the poll for people.

The Confederate States were not put under martial law until after the Civil War. I was talking about states that weren't in active rebellion against the fed.

Oh sorry, I misunderstood the question. In that case - not as a general rule. I think that there are circumstances which can arise in which case it would be both constitutional and proper for the President to impose martial law, unlike the other cases you suggested. But under no circumstances can the President play Cromwell.

I disagree with exempting the Warren Court from blame. Griswold v. Connecticut was the beginning of substantive due process, and "the living constitution", and it was under Warren that these views gained first respectability and then widespread acceptance.

[neither]

Still waiting on an answer here, John...

To which question?

To replies #53, #54 and #62. Congress' resolution - S.J.Res.23, quoted on p3 - did not suspend habeas corpus.

That directive, again, was:

the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001

You note that "Simply because the words habeas corpus don't appear on the resolution, just a declaration that right to a jury trial is suspended - actually, neither directive appeared in the resolution. There is no indication, to my mind, of any intent to suspend Habeas for US citizens who might have conspired in 9/11; an equally valid reading would be that the President is empowered to find and bring charges of treason against US citizens involved in 9/11.

Still waiting on an answer here, John...

I have argued in other posts that we are in a period in which the judicial branch has exceeded its constitutional authority.  This has been the case since the 1970s in my opinion.

If liberals are that concerned with the courts becoming too conservative, perhaps they could join a campaign to rein in the power of the courts and reduce it to within constitutional limits.

1970??. You deliberately mean to exclude the Warren Court from this trend?

Spend money without congressional authorization
No. Article 1 Section 9 clause 7 says that no money can be drawn from the trasury except in pursuance to appropriations made by law; Aritlce 1, Section 1, Clause 1 gives Congress the sole and exclusive authority to legislate. Unambiguously, the executive department cannot spend money without congressional authorization. If s/he does so, s/he is in violation of their oath of office; likewise, if Congress passes a law permitting, mandating or validating it, that law is unconstitutional.

Suspend the writ of habeas corpus
No. Congress is granted the authority to suspend the writ under specific, defined circumstances; in general practice, it has given the President explicit authority by legislation to suspend the writ in specific, defined circumstances and locales (e.g. the Grant / KKK insurrection). See our recent discussion on how this applies to the war on terror and Hamdi v. Rumsfeld - I'm still waiting for an answer on this one, John!

Arrest judges that rule against him, congressmen who oppose his war, and other random people
Nope. That's a no-brainer.

Put my state under martial law, arrest my state legislators and censor the press
If at the time, your state had seceded from the Union and was in a state of actual rebellion against the United States, its constitutional rights were foreit until such time as the United States Congress chose to re-admit Virginia. During the intervening time, the President can make war in whatsoever way he might equally make war against a foreign power.

You should read a book called "Courting Disaster" by Martin Garbus; it would probably appeal. I've rarely found myself disagreeing so viscerally with an author and his viewpoint, yet continued reading; the seriousness with which Garbus takes himself and his opinion makes it worth reading, if only to glimpse how the other side - I suppose, your side - views the change in the nature of the Federal court system since 1970.

So I think you'd like it, but I'd be hesistant about citing it as an authority.

The 8th Amendment proscribes punishments that would have been considered cruel and unusual by the standards of the time it was ratified; it seems highly unlikely that lethal injection could reasonably be considered "cruel and unusual", although you could argue that the electric chair is.

Is it cruel and unusal by today's standards? Maybe so. I'm not especially fond of the death penalty, and I'd vote to ban it if I was a legislator - but I would not vote to declare it unconstitutional if I was a Justice. The constitution can be amended, per Art. V,  at any time that a majority feels that the evolving standard of decency requires it. It cannot be amended, however, by the Supreme Court of the United States, no matter what they ajudge to be the standards of society. The question, to paraphrase Justice Scalia, is not whether or not the death penalty should be banned, but who gets to make that decision: is it to be the people and their elected representatives, or nine unelected lawyers?

[it's still living and should be treated as if it were any other human being.]

I hate debating abortion.  But I have to say this:  Isn't it a logical fallacy (red herring) by saying "it's a women's body, she should choose".  I mean it diverts that fact that even though the fetus IS in her body, it's still living and should be treated as if it were any other human being.  Saying "it's her body" only tries to justify doing what she wants and not even taking into consideration the fetus.  Again, I hate to bring it up, but it needs to be said.

The bolded part is the problem - that's where the view of pro-lifers and pro-choicers differentiates. Pro-choicers don't tend to view the fetus as a human being(many do at later points in the pregnancy, but at least not from conception). This is really a problem when abortion is debated - quite often the opposing sides do not truly understand the opposing viewpoint.

This is very true. I wouldn't argue that it's a tendancy, however - it is absolutley the dividing line, as it seems to me.

It makes no logical sense whatsoever for a person who does not believe the child in utero is alive to be pro life. That's not to say that there are no other grounds to be anti-abortion, which is a different proposition to pro life (see also Susan B. Anthony and most other early feminists, for example, who argued correctly that abortion is violence against women).  Equally, it is indefensible to support unrestricted abortion if you believe that the child in utero is a living human being.

This latter point is why Kerry's position on the matter was so utterly abhorrent: he prooudly claimed on national television that he regarded abortion as murder but that he would do nothing about it, a contention which by force of logic compells him to acknowledge that he supports the murder of 4000 a day.

Any pro life legislation must include provisions, such as those Sen. Snowe offered to the recent partial birth abortion bill, ensuring that an abortion can be carried out to save the life of the mother, but only to save the life of the mother. The goal of pro lifers, in my view, is not to negate the value of the life and rights of the mother, as many liberals contend to be our goal, but rather, to balance those rights against the life and rights of her child.

Congress gives the President the explicit right to use military and police force against individuals who support Al Qaeda.  There's no other way to read that.  This is adequate to suspend the habeas corpus rights of Hamdi.

Under precedent it is not: Ex Parte Milligan states in effect that habeas corpus may only be suspended when the civilian Courts themselves are closed, and then only in the actual theatre of war. A suspension of Habeas Corpus is therefore impossible on US soil because as far as I am aware all US courts remain open.

Forces in the field are a different matter, and habeas corpus can be suspended in these settings until it is possible to move the captured to a place where a court can hear their case.

No precedent is binding upon the Supreme Court.

Binding, no - but the court generally tries to stick within the bounds of stare decisis unless there is a compelling reason to depart there from, or if it percieves a case to have been wrongly decided. There appears no originalist and reasonable interpretation of I§9:2 other than the determination arrived at in Bollman, in Merryman and in Milligan, i.e., that it is the sole and unique perogative of the Congress to suspend habeas corpus, and that it must do so unambiguously and explicitly under specific and given situtations arising.

In terms of South Dakota - Herseth. She's ambitious, smart and an effective speaker. I'd likely vote against her, but I could easily see her on one half or the other of the dem 2012 ticket. She's one to watch.

Congress gives the President the explicit right to use military and police force against individuals who support Al Qaeda.  There's no other way to read that. This is adequate to suspend the habeas corpus rights of Hamdi.

I disagree. Congress cannot suspend habeas corpus - a writ of so little consequence to the Framers that it was the one writ specifically mentioned in the Constitution; so transient and triffling a writ that Hamilton, quoting Blackstone, noted in Federalist 84, "confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore A MORE DANGEROUS ENGINE of arbitrary government" - by mere inference. If Congress wishes to suspend habeas, it must do so explicitly - and I'm baffled by how you feel that their statement is "explicit" ("Congress gave explicit authority to Bush to use these powers"). I could grant you some credibility if you say that it is strongly implied, although I'd disagree with you on that point, too, but to say that Congress explicitly authorized suspension of habeas is ludicrous.

On those occaisions in the past when Congress has suspended the writ, it has mentioned habeas corpus by name and associated with it the verb "suspend". Fisher v. Baker, 203 U.S. 174 (1906); Ex Parte Milligan, 71 US 2 (1866) at 115. The presence or absence of such language in S.J.Res.23, or other related legislation, seems to be a reasonable standard by which to determine whether Congress has suspended the writ. None exists of which I'm aware. Is there another act, or are you citing S.J.Res.23 as your authority? If the latter, you're clearly in error. To say that Congress suspended habeas requires the reading of new ideas into the text to justify a subsequently arising contingency - habitually, that's called "judicial activism". Even the Court majority - with whose conclusion you presumably agree, given your opposition to Scalia's dissent - doesn't even contest that the writ wasn't suspended by Congress!

Arguably, in the current war on terror, Congress should suspend the writ, or at least, circumscribe its use. "If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so.". Ex parte Bollman, 8 U.S. (4 Cr.) 75, 101  (1807). The legislature has not thus spoken; it did not do so in S.J.Res.23, and the absence of Congressional suspension is not contested by the government nor any concurring or dissenting Justice of the Court in Hamdi.

Sorry, John, but thusfar, I'm sticking with Scalia on this one.

For example, the 22nd amendment does not make someone who has had two full terms ineligible for the presidency. It only makes him ineligible to be elected to that office. Thus, he is quite clearly able to become president through the line of succession. That is completely literal and obvious.

Right - for example, there should be no bar to my rising to the Speakership of the House simply because I'm not eligible to be elected President and the Speaker is third in line. Likewise for cabinet posts.

"In every century, there are a handful of writers who help the human race to evolve," said fellow feminist Gloria Steinem. "Andrea is one of them."
Right - in much the same way Johnny Cochran and affirmative action help race relations "evolve".

I really do strongly advise people to actually read Dworkin's books. Don't just coast by on the lazy recieved-wisdom sterotype that she was a hateful propagandist of gender discrimination - instead, read her books, and discover how genuinely and deeply nuts this hateful propagandist of gender discrimination actually was.

Not to speak ill of the dead, but feminism, in my view, has made a huge gain in Dworkin family's loss. With friends like these, who needed enemies.

As I said, remember Michael Fay?  An American anmed Michael Fay went to Singapore and was arrested for vandalism.  He was sentenced to corporal punishment- being beaten with a stick of bamboo.  This could never happen in the US, as corporal punichment applied by the Judiciary is unconstitutional.  However, since the US Federal Courts had no jurisdiction over Singapore, they had no power to overturn the conviction or commute the sentence, and it would be crazy to say they did.

I don't see how the two cases are comparable. Fay was arrested for the commission of a crime under the laws of the nation in which he was located, and was tried pursuant to that nation's legal system; consequentially, at no point during the commision, trial or punishment of the crime was he under US jurisdiction. It should go without saying that the United States cannot handily enforce the rights and priveleges of its citizens when its citizens leave the jurisdiction of the United States, but that in no way means that those rights are waived or suspended - they are merely beyond enforcement.

However, Hamdi was arrested by US military forces. His rights, as I have just described, are conditional upon his citizenship of this nation, not his immediate locale - "it is the birthright of every American citizen when charged with crime to be tried and punished according to law"; Ex Parte Milligan, 71 US 2 (1866), at 119 - and his ability to insist on those rights, conditional upon being under US jurisdiction, which no-one contests that he was. Since, unlike Fay, Hamdi was under US jurisdiction following his arrest in Afghanistan, merely by being a US citizen and being physically under US jurisdiction, unless Congress had explicitly suspended the writ of habeas corpus (Milligan, supra, at 115-116), Hamdi has a legitimate right to assert the rights of any US citizen held in detention under US jurisdiction.

The Constitution is not designed to protect us from terrorists - it's designed to protect us from government. As unpalatable as it may sound, under the current constitution, criminals retain certain rights, and so do terrorists.

[All agree suspension of the writ has not occurred here]

Where in that text do you see the suspension of habeas corpus?

I don't, and didn't say there was.  i said in the AFGHANISTAN not Iraq, but AFGHANISTAN, Congress gave the President power to detain enemy combatants under his power as Commander in Chief.

In fact, I specifically saaid that there was no suc power in the Iraq Resolution, which is why Iraqi insurgents have been treated as POWs under the Geneva Convention, not as enemy combatants.

I typed the wrong country name; although I posted the correct resolution, I guess I'm so used to following the word "liberate" with "Iraq".

In any instance, my apologies, but the resolution I posted was the authorization to remove the Taliban from power in Afghanistan, NOT the resolution regarding Iraq. Which brings us back to where we should be, and you will note the absence in that resolution of anything suspending HC.

Furthermore, the court even concedes as much:
Though they reach radically different conclusions on the process that ought to attend the present proceeding, the parties begin on common ground. All agree that, absent suspension, the writ of habeas corpus remains available to every individual detained within the United States. U. S. Const., Art. I, §9, cl. 2 .... All agree suspension of the writ has not occurred here. (at IIIa).

A true originalist would oppose modifying the constitution.  I love how you assume I'm an idiot who never heard of the 13th amendment.

You may well have read the constituition, but you clearly don't understand originalism. Originalism does not stand in opposition to change, it stands in opposition to the creative reading of an existing text to generate new rights that were never in the text. It stands in opposition to judicial activism, which is effectively a perjorative way of saying "legislating from the bench" - something the Framers would clearly have disapproved of, given that the first clause of hte first article of the constitution explicitly places all legislative power in the hends of the Congress.

You go on to write "[the 13th amendment] marked the beginning of Americans using constitutional amendments as instruments of social reform" - yes, it did! And that is the proper, correct, originalist view of how law and constitutions develop! When Americans decided that it was unfair that people be denied the vote on account of their skin, did they look to the Supreme Court to "re-imagine" the constitution in terms of the "evolving standard of decency"? No, they passed constitutional amendments. When American society reached the decision that a person should no longer be denied the right to vote because of their gender, did they demand the Supreme Court re-interpret the meaning of the constitution, in light of the jurisprudence of other nations? No, they passed a constitutional amendment. When Congress wanted to unwisely engage in tampering with social preferences in prohibition, did they look to the Supreme Court? No, they passed an amendment. When they decided they were done with that experiment, did they ask the Supreme Court to nullify the previous amendment, through a creative reading of the bill of rights? No, they repealed it, in the way specified in Article V.

That is the correct, originalist and sole legitimate method through which to amend and update the Constitution. Of course the Constitution should keep pace with the evolving standard of decency - that's why the framers WROTE Article V. But why on earth should nine unelected lawyers get to interpret what the nation considers "moral"? They don't, according to the constitution, yet those who believe in "the living constituion" are so strongly set in their moral beliefs that they want to throw out the constitution to do it. Now, when some in society wanted to create a right to have an abortion, a right so enshrined in the traditions of the American people that it was illegal for two hundred years, and a right contained nowhere in the Constitution, did they pass an amendment, or did they look to the Supreme Court to invent from thin air a right which appears nowhere in the text, and had never been thought to be in the text in nearly 200 years of American constitutional jurisprudence?

The argument has never been that the constitution can't change or shouldn't change. The argument is about who gets to make those changes: the Supreme Court - acting under, I presume, the constitutional revision clause of Article III - or the legislative branches of government, per Article V. As Scalia recently noted, talking about Roper v. Simmons, "[watching two pundits argue about whether or not people who were minors at the commission of their crime should be executed] it struck me how much the point had been missed. The point was not whether the call was right or wrong, it was who gets to make the call".

It may no longer be morally acceptable to American society to execute minors. It may be exceptionally stupid. If you think so - and I do - pass a law! Pass an amendment! But don't look to the constitution. Not everything that is wrong with this world, not everything that is wrong or immoral is unconstitutional. Executing a person who was a minor when the crime was committed may well be "cruel and unusual" by today's standards - but the 8th Amendment was not ratified by this generation. Perhaps every ten years, we should pass the bill of rights anew, as Washington's farewell address is read in each new Senate. But that isn't what happens, which means that for better or worse, the bill of rights today means what the bill of rights meant when it was passed.

By the way, don't think this is a conservative thing or a liberal thing - although virtually by definition a liberal believes in the living constitution, the next time a conservative tells you he's an originalist, ask him what he thought about the Schaivo case.

[SECTION 1. SHORT TITLE.]

My objection to Scalia is twofold.  The first is that he is wrong that Congress hasn't suspended habeas corpus...They did so in the Afghanistan War Resolution.

Correct me if I'm wrong, but the act of Congress which authorized the liberation of Afghanistan was S.J.RES.23, which I reproduce from the LOC's text below.

SECTION 1. SHORT TITLE.

This joint resolution may be cited as the `Authorization for Use of Military Force'.

SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

(b) War Powers Resolution Requirements-
(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.

Where in that text do you see the suspension of habeas corpus?

The second objection is that Scalia believes American citizens are secured their constitutional rights when they leave the jurisdiction of the United States.

Wait, wait - you contend that an American who goes abroad loses their constitutional rights? On what do you base that contention? Your argument is that Hamdi waived his constitutional rights when he set foot over the US border? Does that apply to anyone, or just citizens entering a warzone? Do you have case citation to support your surely counterintuitive assertion?

The American Congress: The Building of Democracy, edited by J. Zelizer, includes a weighty account of the battle over whether or not iternal improvements were constitutional. Madison believed strongly that they were.

I suppose my thought would be that it depends upon the improvements in question. I would answer that they CAN be constitutional. I'm not a strict constructionist - I'm an originalist, as everyone should be where the constitution is concerned, but I contend that there is room for reasonable interpretation in the text. Interstate highways, in my view - legitimate Federal projects.

Good grief, no. I don't have any beef with Grant, and surely to God, the first President to take the chop has to be Andrew Jackson - corrupt, arrogant, who single-handedly attempted to foil Congressional supremacy. So perhaps Reagan should grace the $20 bill. However, truth be told, I think it far more appropriate for Jackson to be replaced by Henry Clay.

Gonzales is a wonderful nominee, and I'd be more than happy to put him on after Scalia's transgressions in the Hamdi v. Rumsfeld.

Scalia will never be forgiven by me for that.

I sided with Scalia rather than Thomas, but I don't know if "forgive" is the correct term. I've disagreed with Justice Scalia in some cases, but I still maintain that he and Thomas are exactly the kind of Judges we should want on the court, not because I agree with their views, necessarily, nor because I always agree with their conclusions, but because, as far as I can tell, there is simply no other valid way to execute the duties of a Supreme Court justice but to take an originalist view of the text, and yet there are but two originalists on the court.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=03-6696#dissent1

Scalia summarised his view:
This case brings into conflict the competing demands of national security and our citizens' constitutional right to personal liberty. Although I share the Court's evident unease as
it seeks to reconcile the two, I do not agree with its
resolution.

Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution's Suspension Clause, Art. I, §9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive's assertion of military exigency has not been thought sufficient to permit detention without charge. No one contends that the congressional Authorization for Use of Military Force, on which the Government relies to justify its actions here, is an implementation of the Suspension Clause. Accordingly, I would reverse the decision below.

(Cont.)

The relevant question, then, is whether there is a different, special procedure for imprisonment of a citizen accused of wrongdoing by aiding the enemy in wartime. Id., §II

(Cont.)

There is a certain harmony of approach in the plurality's making up for Congress's failure to invoke the Suspension Clause and its making up for the Executive's failure to apply what it says are needed procedures--an approach that reflects what might be called a Mr. Fix-it Mentality. The plurality seems to view it as its mission to Make Everything Come Out Right, rather than merely to decree the consequences, as far as individual rights are concerned, of the other two branches' actions and omissions. Has the Legislature failed to suspend the writ in the current dire emergency? Well, we will remedy that failure by prescribing the reasonable conditions that a suspension should have included. And has the Executive failed to live up to those reasonable conditions? Well, we will ourselves make that failure good, so that this dangerous fellow (if he is dangerous) need not be set free. The problem with this approach is not only that it steps out of the courts' modest and limited role in a democratic society; but that by repeatedly doing what it thinks the political branches ought to do it encourages their lassitude and saps the vitality of government by the people.Id., §V

(Cont.)

What exactly do you object to in Scalia's reasoning? Or is it his conclusion you object to?