Monday, February 06, 2006

Inspirational Procrastination

Never let it be said that procrastination is entirely without value. Thanks to contemplations on whether an Administration can out-Lincoln Lincoln [*coughnotethedatecough*]1,2 plus a random recollection of a conversation earlier this year,3 I have been struck with a new book idea. The working title for the as yet nonexistent manuscript is The Synthesis of Law. 'S not a stellar title, but it's the best I've got so far.

Of course, I'm not supposed to be thinking about synthesis of law, I'm supposed to be thinking about embryonic left-right patterning.

1 On a less partisan note, all recent history and recent debates on such matters are properly understood as continuing aftershocks of the 1860s and, indeed, of the beginnings of our Republic itself: that is, as rehashings of previous controversies, with some variation in the surrounding factual context. I continue to think that this is an important--and sorely neglected--starting point for evaluating present "controversies"; or at the very least, an important component of the lens through which one views and analyzes those controversies. Moreover, that neglect concerns me in that it may render thoughtful persons unaware of historical background or indifferent to the pertinence of that which predates what is narrowly presented as "current" and "relevant." Not that I don't claim the same fault, mind you :)

Why does it matter? Because this history is very much alive (!) and these issues making news at the moment--separation of powers, &c &c--represent unresolved tensions present in the Constitution and therefore present in its interpretation and execution since the beginning. Those tensions, which have been understood and dealt with in a variety of ways by judges, lawyers, legislators, and Presidents since the ink first dried on the Constitution, tend to bubble up from time to time. Particular situations, such as the one we've been in for a few years now or, say, the Civil War (!!!), tend to exacerbate things.

Essentially, we're just looking at Constitutional Interpretation: Variations on a Theme here, guys. But I digress. If you don't like the music, fine; but consider on whom you wish to lay the blame for the offense to your ears, and why. Do you not like bars of the last variation? Do a whole swath of them rub you wrong? Is the music OK, but being played badly? How would you play it? Do you just hate the theme and thus the whole enterprise is screwed? What would you have written? No snark intended; my point is this: there is a certain amount of molding over time of our interpretations, rooted in things like a best understanding of what the words meant when they were written and precedent . So, over time, similar scenarios have arisen, and similar arguments have been advanced, and jurisprudence has marched on. The beginnings of our powerful central government trace at least back to the Civil War, and arguably farther. As such, a powerful central government entails powerful branches and desires by each to have interpretive authority. Although, again, debates over who has what interpretive authority and when raged at least as far back as the Alien and Sedition acts of 1798! (OK, that was big on interpretive authority of States, but the point is basically the same.)

In conclusion, I do not at present argue for or against anything; I only admonish all of us who would be critics to contemplate before we point our fingers, as we are foolish to point only to today's actors or vituperatively accuse only one Administration if we ought truly to be critical of a succession of actors and Administrations (who, we ought not forget, might be advancing defensible arguments). What we have is an instance of a messy, complicated, and historically linked problem. Nothing new under the sun...Let's not be foolish! And again, of course, I'm quite sure I've got precisely the faults I'm trying to inveigh against :)

I could do a very similar riff on "privacy" stuff in general...but I won't for the time being. Basically, my position is this: if you think the Fourth Amendment means what it says, no more and no less (which I think would be an example of so-called "strict construction" resulting in something tremendously broad--good, bad, or indifferent, I'm just commenting)...then you have another thing coming. If you'd like to rant, rave, and rail, there are more judges, lawyers, law professors, and legislators involved than you have breath to expend. Welcome to the legal system. Not all faults are courtesy of W, John Ashcroft, or whoever else I'm forgetting.

2Huh. Guess the quasi-substantive thoughts were in the footnotes. Perhaps I can be a lawyer after all; there may yet be hope. I want that?

3 Fascinating how a brief or offhand remark somtimes reveals so much.

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