The Necessary Amendment

"I definitely do not espouse the libertarian worldview; primarily because I know without a doubt that a great many people will either (a) harm others if allowed to do so and/or (b) harm themselves to the point of affecting society (i.e. others such as me) if allowed to do so, with vicious activities if not prevented or punished."

What does (a) have to do with libertarianism? I don't think there should be any laws stricken from the books that allow others to harm me.

And what "vicious activities" would be prompted by libertarian philosophy which allows people to harm themselves, were it to run a government? You can't be telling me that a government that doesn't have to bother with attacking consensual crimes won't have a lot of money and time to combat violent crimes, which include most of the vicious ones I can think of. "To the point of affecting society" already happens today--the people ARE harming themselves and affecting society with a government gone leviathan. Do you really think that a government out of people's business would do worse than this one?

We don't disagree that moral absolutes are necessary to human civilization. Where we disagree is that I think that imposing my subset of those is wrong--primarily because of sheer self interest. A much looser government guarantees my own subset will survive in the event a morally different group rises to power, and what many here fail to realize is that this group HAS risen to power and they're getting payback for the 'right to contract' and Bowers v. Hardwick and all the other Constitutionally pisspoor crap "conservatives" have foisted on them via the activist court.

The Supreme Court has been not been remotely conservative since the reign of Marshall. Using it to impose moral values is a mistake, one we've seen with the latest court, and I think the best solution is not to reverse the trend but to end it outright by impeaching judges who ignore plain language and original intent.

While I disagree with him on much, as I do Justice Scalia and Justice Thomas, and most certainly that odious partisan Rehnquist, Judge Bork is one of the great legal minds of the century and it is a travesty that he is not on the court. I love reading his stuff more than Justice Thomas and almost as much as I like Justice Scalia's.

While you may disagree with Scalia's opinion here, I suspect you might enjoy the way it is expressed:

As to the Court's invocation of the Lemon test: Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under: Our decision in Lee v. Weisman conspicuously avoided using the supposed "test" but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart (the author of today's opinion repeatedly), and a sixth has joined an opinion doing so.

The secret of the Lemon test's survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him." —Justice Scalia's concurring opinion in Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 398-399 (1993) (citations omitted). http://www.wordiq.com/definition/Antonin_Scalia

My favorite dissent (and one many here will likely disagree with, but so be it) is one in which Scalia is joined by (of all people) Justice STEVENS. He shows both his independence of thought and genius in taking on one of the most dangerous precedents of our time in his dissent in Hamdi v. Rumsfeld (cites omitted):

The plurality finds justification for Hamdi's imprisonment in the Authorization for Use of Military Force, 115 Stat. 224, which provides:

"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.".

This is not remotely a congressional suspension of the writ, and no one claims that it is. Contrary to the plurality's view, I do not think this statute even authorizes detention of a citizen with the clarity necessary to satisfy the interpretive canon that statutes should be construed so as to avoid grave constitutional concerns. But even if it did, I would not permit it to overcome Hamdi's entitlement to habeas corpus relief. The Suspension Clause of the Constitution, which carefully circumscribes the conditions under which the writ can be withheld, would be a sham if it could be evaded by congressional prescription of requirements other than the common-law requirement of committal for criminal prosecution that render the writ, though available, unavailing. If the Suspension Clause does not guarantee the citizen that he will either be tried or released, unless the conditions for suspending the writ exist and the grave action of suspending the writ has been taken; if it merely guarantees the citizen that he will not be detained unless Congress by ordinary legislation says he can be detained; it guarantees him very little indeed.

It should not be thought, however, that the plurality's evisceration of the Suspension Clause augments, principally, the power of Congress. As usual, the major effect of its constitutional improvisation is to increase the power of the Court. Having found a congressional authorization for detention of citizens where none clearly exists; and having discarded the categorical procedural protection of the Suspension Clause; the plurality then proceeds, under the guise of the Due Process Clause, to prescribe what procedural protections it thinks appropriate. It "weigh[s] the private interest ... against the Government's asserted interest," and--just as though writing a new Constitution--comes up with an unheard-of system in which the citizen rather than the Government bears the burden of proof, testimony is by hearsay rather than live witnesses, and the presiding officer may well be a "neutral" military officer rather than judge and jury. It claims authority to engage in this sort of "judicious balancing" from Mathews v. Eldridge, a case involving ... the withdrawal of disability benefits! Whatever the merits of this technique when newly recognized property rights are at issue (and even there they are questionable), it has no place where the Constitution and the common law already supply an answer.

Having distorted the Suspension Clause, the plurality finishes up by transmogrifying the Great Writ--disposing of the present habeas petition by remanding for the District Court to "engag[e] in a factfinding process that is both prudent and incremental,". "In the absence of [the Executive's prior provision of procedures that satisfy due process], ... a court that receives a petition for a writ of habeas corpus from an alleged enemy combatant must itself ensure that the minimum requirements of due process are achieved." Ante, at 2651-2652. This judicial remediation of executive default is unheard of. The role of habeas corpus is to determine the legality of executive detention, not to supply the omitted process necessary to make it legal.

It is not the habeas court's function to make illegal detention legal by supplying a process that the Government could have provided, but chose not to. If Hamdi is being imprisoned in violation of the Constitution (because without due process of law), then his habeas petition should be granted; the Executive may then hand him over to the criminal authorities, whose detention for the purpose of prosecution will be lawful, or else must release him.

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.

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