A Question to the GOP

By Jesse Taylor
Tuesday, June 17, 2008 20:25 EDT
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Why, if the Constitution is insufficient to protect us, are we fighting so hard to protect it?image

UPDATE: Tommy D. hops on the mic to drop some America-protecting knowledge.

In doing so, the Court struck down a 2006 law passed by overwhelming bipartisan majorities in both houses of Congress, which specified the procedures by which captured terrorists held in military prisons could receive due process. The 2006 law, the Military Commissions Act, was only written, passed, and enacted because the Supreme Court in 2004 demanded that Congress do so. Put another way, as of last week, the Supreme Court – and more specifically, Justice Kennedy – has declared itself the final authority on making war, incarcerating enemy combatants, and, indeed, on the American people’s right to self-government.

Wait…you mean that the Supreme Court is the final arbiter of the constitutionality of laws passed by Congress?

Fuck. Me.

Neither the United States military, its elected commanders in the executive branch, nor its representatives in Congress are now in control of America’s prosecution of the war on terror. Justice Kennedy is, or he seems to think.

Anthony Kennedy’s Vietnam II starring Josh Hartnett, in multiplexes this Thanksgiving.

Now, I hate to stop Tom Delay from huffing the 409 Angry Mist, but the Supreme Court still gives Congress and the President the ability to wage any ill-advised war they want. What they can’t do is stick away prisoners of war for years at a time with no hope of a trial. One would hope that basic precepts of American law stick to American actions in American wars…right?

Until he is disabused of this notion by a Congress with the guts to assert itself, the following not only may happen, but will, and very quickly:

- Captured terrorists will refuse to answer any questions without access to a lawyer;

- Captured terrorists will demand the public disclosure of the military’s evidence against them, thus exposing the means and methods employed by our intelligence community to gather such evidence;

- Captured terrorists will demand to confront their accusers, who will be soldiers on the front lines in Iraq and Afghanistan, in open court back here in the states; and,

- Captured terrorists will go venue shopping, filing their habeas claims in dozens of courts in hopes of getting the most liberal activist judge they can find.

Oh, shit. No.

Let’s make a bargain – Delay and his ilk are free to hate the basic principles of America as much as they’d like to, so long as they stop trying to get us in wars to “protect” those selfsame freedoms.

In September, 2004, the House passed the “Pledge Protection Act,” which removed the jurisdiction of lower federal courts and the Supreme Court to review any controversies surrounding the recitation of the Pledge of Allegiance.

In 2004 and 2005, House conservatives introduced and vocally promoted similar legislation stripping from federal courts jurisdiction over any question stemming from a public official’s acknowledgement of God as the basis for our laws and government. The House also passed similar court-stripping legislation pertaining to homosexual marriage in 2004.

And all the while, Republican Houses of Representatives passed resolution condemning judicial activism, including judicial mischief such basing decisions on foreign law. Finally, in November, 2005, the House of Representatives passed a bill to break up the consistently radical 9th Circuit Court of Appeals so to introduce some degree of rational jurisprudence to its jurisdiction.

…Or you could just try to destroy them from the inside out. There’s that, too.

Jesse Taylor
Jesse Taylor
Jesse Taylor is an attorney and blogger from the great state of Ohio. He founded Pandagon in July, 2002, and has also served on the campaign and in the administration of former Ohio Governor Ted Strickland. He focuses on politics, race, law and pop culture, as well as the odd personal digression when the mood strikes.
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