Tuesday, May 4, 2010

Constitutional Conservatism

The Fifth Amendment:

No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The 2008 GOP candidate for President:

"Don't give this guy his miranda rights until we find out what it's all about," [John] McCain added.

Yep. Real concerned with small government and the constitution. Unless, of course, you're indefinitely detaining US citizens without due process or right to a trial.

I'm very disappointed with Obama's civil liberties record thus far. But I'm not trading it in for the GOP position.


  1. Um, well, you have to read this provision in the context of Supreme Court authority already on the books. The bill that you've linked to doesn't purport to overturn (nor could it) the decision in Hamdi v. Rumsfeld, which held that (1) a U.S. citizen can be held in military detention for the duration of hostilities, but (2) such citizen must be given an opportunity to contest his designation as an enemy combatant before a neutral decisionmaker, and with the assistance of counsel.

    Therefore, it's not accurate to say that there's no due process; the Supreme Court has already outlined what process you're entitled to. This bill, if enacted, would only codify the President's authority -- already granted to him by the AUMF to detain enemy fighters.

    There's not much daylight between the Obama Administration and 2d term Bush Administration counterterrorism policies -- almost none once you move away from coercive interrogation. I'm working on an article right now that demonstrates the tight alignment on such issues as military detention (absent criminal charges), military prosecution, and targeted killings.

  2. I should have known better than to write about your specific area of study. It doesn't change the fact that small government conservatives should be outraged by such far-reaching authority to detain US citizens. Instead, it's the progressive wing of the Democratic party who is pissed about it. And I'm not disagreeing with the fact that the Obama administration isn't that far off the Bush administration on this topic. But at least we're not torturing.

    Whether or not the court says it's ok, I don't have to be happy about it. And I'm not going to stop pointing out the hypocrisy of conservatives screaming about fascism when the government attempts to provide access to health care, while encouraging the government to toss citizens in jail indefinitely.

    Also, I find the very vague definition "duration of hostilities" extremely disturbing. This is a war that was never declared and likely will never fully end. For sure, there won't be a formal surrender on the deck of the USS Missouri. When have hostilities ended?

    Oh, yeah, that reminds me to do a post on drone strikes. Also problematic, for multiple reasons.

  3. Forget, please, "conservatism." It has been, operationally, de facto, Godless and therefore irrelevant. Secular conservatism will not defeat secular liberalism because to God both are two atheistic peas-in-a-pod and thus predestined to failure. As Stonewall Jackson's Chief of Staff R.L. Dabney said of such a humanistic belief more than 100 years ago:

    "[Secular conservatism] is a party which never conserves anything. Its history has been that it demurs to each aggression of the progressive party, and aims to save its credit by a respectable amount of growling, but always acquiesces at last in the innovation. What was the resisted novelty of yesterday is today .one of the accepted principles of conservatism; it is now conservative only in affecting to resist the next innovation, which will tomorrow be forced upon its timidity and will be succeeded by some third revolution; to be denounced and then adopted in its turn. American conservatism is merely the shadow that follows Radicalism as it moves forward towards perdition. It remains behind it, but never retards it, and always advances near its leader. This pretended salt bath utterly lost its savor: wherewith shall it be salted? Its impotency is not hard, indeed, to explain. It is worthless because it is the conservatism of expediency only, and not of sturdy principle. It intends to risk nothing serious for the sake of the truth."

    Our country is collapsing because we have turned our back on God (Psalm 9:17) and refused to kiss His Son (Psalm 2).

    John Lofton, Editor, TheAmericanView.com
    Recovering Republican

  4. This is a war that was never declared and likely will never fully end. For sure, there won't be a formal surrender on the deck of the USS Missouri. When have hostilities ended?

    Heh heh, well actually, it *was* declared for all intents and purposes on September 18, 2001, when Congress enacted the Authorization for Use of Military Force. We don't declare war anymore; AUMFs are the legal equivalent of a war declaration.

    As for when the war ends, it's true that we're unlikely to reach an armistice with al Qaeda. However, World War II did not legally end with the signing of the peace treaties with Japan and Germany. Instead, the state of war persisted until Congress repealed the declaration of war, which didn't happen until 1952. Under my view of the division of war powers, if Congress repealed the AUMF, that would end the armed conflict against al Qaeda (though of course the President would still have the independent constitutional power to repel imminent attacks, see The Prize Cases, 67 US 635).

    I don't mean to suggest that it's all so neat and simple legally. The issues spawned by the global war on terrorism essentially got me tenure, as I've written several academic articles thinking about how the Constitution should treat armed conflict against a non-state group like al Qaeda.

    As to whether small government conservatives should be appalled, I can't speak for them, since I'm more of a small-l libertarian than any kind of conservative, but to the extent that you would categorize me with them, I'm not sure I see the actual conflict. Other than capital-L Libertarians who are really anarchists, small government types are not "no" government types; and public goods like national security are one of the areas where you would expect a robust role for government, since it's not something that the market can replicate.

    Be that as it may, I think in general that treating American persons as enemy combatants rather than criminal defendants is problematic. (I think citizenship is not the right test, though, but rather ties to the U.S., for reasons I explain in this article: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1080295.) But this has to do more with the purposes of military detention (preventative incapacitation) versus criminal prosecution (retributive punishment), rather than constitutional rights.