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No more lonely weekends. But what about non-originalist legal positivism? Or Iran? Plus more.

11.2.05

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HOOKED
Re: AmspecBlog:

I'm hooked again. I always enjoy the letters from readers Monday through Friday but Saturday and Sunday were downers when you guys took the weekend off. But, now AmSpecBlog has hooked me and my weekends aren't quite as dull. Not to mention that I can't get through an hour on any day without updating the AmSpecBlog web page.

Thanks very much for starting the blog. Kudos to those responsible.
-- Nelson Ward
Ribera, New Mexico

LAWFUL ALITO
Re: George Neumayr's The Law of Lawlessness:

George Neumayr hits nicely on the essential cart-before-horse nature of stare decisis, wherein the written Constitution is trumped by, for instance, a certain 1973 opinion by Justice Blackmun.

But Neumayr and other conservatives would do well to overturn another misconceived judicial stratagem: the decidedly non-originalist legal positivism of Judge Bork. Alexander Hamilton, one of the chief architects of the Constitution, argued against the inclusion of a Bill of Rights because by enumerating certain rights it would be implied that these were the only rights that the people could justly claim. Hamilton's concern was addressed, in the Bill of Rights itself, by the Ninth Amendment, which is anathema to un-originalist originalists.

In short, conservatives who want to eschew a real analysis of rights as natural elements of natural law, will continue to attempt to force Americans to believe what for Americans is unbelievable, that there is no such thing as a right to privacy, when the law written in their hearts tells them that there most certainly is. So, for instance, having the shrill Ann Coulter blasting out from her sound truck that the right to privacy is non-existent is a contradiction of the American moral character itself. It would be far more true to the text of the Constitution to render an effective analysis of what rights are generally (claims that are just) and what the right to privacy is specifically (a just claim to a zone of personal being and action that first and foremost excludes the state). From there it would be far easier to say what the zone of privacy cannot include -- such actions as killing one's children, whether they are born or unborn, for instance.

But you cannot tell Americans that their immediate and just claim to privacy does not exist. They know that it does. And a close inspection of the Constitution's text will also reveal that it is not merely a document of positive law, but is rooted in the just claims of natural rights and natural law, which are the inviolable underlying tenets of its very lawfulness.

Hence the absurdity of the positivist claim by Bork and others that overturning the anathema of Roe should merely throw the question of killing the unborn back to state legislatures. No legislature has any authentic power to allow the taking of any life without a profoundly just cause, such as saving the life of a mother. If any legislature had such an authentic power, then it has the power to force all sorts of violations of unenumerated rights and natural law down the throats of Americans.

So I urge fellow conservatives to overturn Borkian positivism in contemplation of overturning Roe, and to clarify what rights are, what the right to privacy is, and that the Constitution does not stand on its own ground but on the ground of natural rights and natural law. To disregard or fear this ground is to disregard or fear who we really are as Americans and to pretend that the Constitution is not cognizant of its own foundation when it clearly is.
ï® Martin McPhillips

Stare decisis is the loophole for conservative judges to pass through. God bless John Roberts. By the way we still don't really know where John Roberts stands on abortion. We only hope we do. We know where Judge Alito stands. His Ma told us.
-- Annette Cwik

If stare decisis is all important, then the Dred Scott decision still stands. Likewise, if you believe that SCOTUS justices have to be replaced by like-minded justices, than the Taney court is permanent.
-- John Manguso
San Antonio, Texas

PERSIAN MISSILES
Re: Christopher Orlet's The Snake and the Dove:

Making the threats that hostage-taker Ahmadinejad has made while international eyes are negatively focused on Iran would normally be regarded as foolhardy. But Iran has no fear, because they now have a nuclear device. They just don't have effective means of delivery, nor do they have more than one. They just figure one is enough to deter large-scale military action by any opponents.
-- Ken Lizotte
Bristol, Vermont

I read Mr. Orlet's article with interest as I always do. I waited for the obvious conclusion and was disappointed when I failed to grasp his point. After all, it has been obvious for years exactly what the Iranians' goals are, power and domination of as much of the world as possible. The statement made by the current president of that country that Israel should be destroyed should not surprise anyone.

Mr. Orlet provided a very good, enlightening analysis of the Iranian leadership and pointed out the obvious fact that they will do everything in their power to develop a nuclear device and a delivery system for it. Whether they target Israel, Europe, or Iraq is unimportant. Any use of nuclear weapons by Iran would, in all likelihood, spark a nuclear conflict involving the U.S.

I strongly suspect that the current U.S. administration recognized this years ago. That is one of the paramount reasons why there are 110,000 US troops sitting in Iraq at this very moment. It is also the main reason why Iranian influence in Iraq must be stymied immediately. It is also the reason that there will be significant troop numbers in Iraq for the next several years, first in support of the Iraqi government, then assigned to leased bases there.

Iran must be recognized as one of the foremost threats to peace in the world in the foreseeable future and must be dealt with very firmly, first by implied threat, then by action. Teddy Roosevelt was right when he said, "Speak softly and carry a big stick." However, that "big stick" must be kept out of the hands of immature, belligerent nations, at all costs.

Who knows what the Iranian leaders would do with nuclear weapons? Possibly Nostradamus.
-- Michael Tobias
Ft. Lauderdale, Florida

Iran is already killing Americans in Iraq with the shaped charges they are smuggling in.

War with Iran looms.
-- David Govett
Davis, California

GIGGLES-IN-CHIEF
Re: Jay Homnick's Only Hurts When I Don't Laugh:

Mr. Homnick should be gratified to see the President's comments yesterday, courtesy of the Corner:

Q. Mr. President, in Argentina, you will have a bilateral meeting with President Kirchner.

THE PRESIDENT: Si.

Q. What I want to know -- sources of the government told me that they would ask you about more cooperation on support for Argentina, you know, in the IMF fund --

THE PRESIDENT: IMF.

Q. Exactly.

THE PRESIDENT: Please don't tell me that the government leaks secrets about conversations to the --

Q. Well, I have my sources in the government.

THE PRESIDENT: You do? Okay, well I'm not going to ask you who they are, of course. (Laughter.)

Q. No, please.

THE PRESIDENT: Inside joke here, for my team.


-- Rex Pilger
Arvada, Colorado

THE GOOD, THE BAD
Re: Lisa Fabrizio's Good News is Bad News:

Professor "Flubber" (Fred MacMurray) is on the witness stand and he's defending his failure. He says that he might have fallen flat on his face, but at least he was pointed in the right direction.
-- Sue Ellen Hirtle

Exactly why the Dems should have done all they could to keep Harriet Miers moving to be confirmed. She was the best they could hope for and the conservatives would still have been reeling.
-- Bennett French

Justice Alito may "probably eat his children" but at least we know he doesn't drown his girlfriends!
-- Jay W. Molyneaux
Wellington, Florida

A WAR OF THE ROSES?
Re: Christopher H.'s letter (under Who Lost Basra?) in Reader Mail's Illegal Motions:

Christopher H.'s letter castigating Blair and the Brits for their alleged failing in Basra cannot pass without comment. He shouldn't bet the "crown jewels" so easily. By the way, if he means "Crown Jewels" he should write "Crown Jewels" -- failure to do so, as Yoda might say, the path to deep misunderstanding is.

So Blair is a coward, EUroweenie,and appeaser. Right on all points --I've been saying so for years. Christopher's knowledge of British military history is a bit dodgy --his reference to the days when "thin red line of phlegmatic Yorkshire fusiliers held off waves of screaming, bloodthirsty Zulu head loppers against all hazards" doesn't take into account that the original "thin red line" were Scots, the Argyll & Sutherland Highlanders at the Battle of Balaclava during the Crimean War -- the Crimea being, for the avoidance of doubt, in what was then Russia and not South Africa; nor that the soldiers who held off Cetewayo's Zulu impis at the Battle of Rorke's Drift were mostly Welsh. Heck, that day the Taffs did a better job of holding a fortified position than Davy Crockett at the Alamo -- sorry, did I just say something 'culturally inappropriate'?

Ah, so we are "gutless and stupid"? Can't think of anyone having cause to call Russell Aston gutless. Or Pita Tukutukuwaqa. Or Scott McArdle. Or Paul Lowe. Or Russell Beeston. Or Gordon Gentle. Now, if you were to apply that description to the military policemen of Abu Ghraib, who would have had a hard time finding work as extras in Deliverance, and who made their naked prisoners form human pyramids, and were then dumb enough to get their pictures taken, in the off moments when they weren't impregnating each other -- they could certainly be classed as both gutless and stupid.

Christopher H., who in a move clearly designed to appease his critics doesn't provide us with his surname, correctly notes that Blair has appeased the IRA -- as, incidentally, have George W. Bush, Bill Clinton, George Mitchell, Pete King, Teddy Kennedy, and a legion of my dopier Irish-American cousins who for years fell for the beast Gerry Adams's homespun tales of fighting the Brits (anyone who wants to know how the dollars they gave Big Gerry in the hope of freeing Holy Mother Ireland from Brit oppression were put to work had better not eat before they read what they did to a Catholic) and put their bills into the plate; just for welfare. As far as appeasing Libya goes, one had thought that the current resident of the White House was equally guilty of that charge; although not much apart from Qaddafi's annihilation will ever erase the anger I personally feel towards him for killing my countrymen in their beds, and leaving the nose-cone of Pan Am Flight 103, the Clipper Maid Of The Seas, lying on Tundergarth Hill as a monument to his viciousness. An un-Christian and unworthy sentiment, I know; but I guess a lot of American folks might feel the same way.

There are those of us, of course, who think that the most profound of what Christopher describes as "the fundamental problems and serial misjudgments that bedevil the war in Iraq" are that we're there in the first place. No doubt Christopher doesn't see it that way -- he's fallen for the triangulating garbage spouted by the allegedly conservative magazines and think tanks, with their talk of "global democratic revolution" (or is it "benevolent global hegemony"? Or "New World Order"? Geez, you get confused). Debating with a neocon is almost Newtonian -- for every argument there is an equal and opposite counter-argument. Saddam has WMDs -- no he doesn't! We are bringing democracy to the Middle East -- the Iraqi constitution is already on the way out because it endorses Sharia law! Give me liberty or give me death -- give them liberty or give them death; or why not give them both, because that's what they seem to have at the moment!

Christopher is a repeater of talking points, a hollow man. It's a pity that his willingness to buy into the most extreme theories of world affairs have led him to make statements that Rush Limbaugh might have found in bad taste. As the old Royal motto goes, "Nemo me impune lacessit," which, for Christopher's sake, is nothing to do with a movie starring Kirk Douglas and James Mason; it means, 'Don't tread on me'; and don't tread on your friends or their "crown jewels." You never know when you might need them.

With very best regards from the Old World,
-- Martin Kelly
Glasgow, Scotland

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