Back of the Envelope

Ann's article on the wiretapping decision is very good:

[T]he president is not claiming he has powers outside of the Constitution. He isn’t arguing that he’s above the law. He’s making an aggressive argument about the scope of his power under the law.

It is a serious argument, and judges need to take it seriously. If they do not, we ought to wonder why a court gets to decide what the law is and not the president. After all, the president has a sworn duty to uphold the Constitution; he has his advisers, and they’ve concluded that the program is legal. Why should the judicial view prevail over the president’s?

This, of course, is the most basic question in constitutional law, the one addressed in Marbury v. Madison. The public may have become so used to the notion that a judge’s word is what counts that it forgets why this is true. The judges have this constitutional power only because they operate by a judicial method that restricts them to resolving concrete controversies and requires them to interpret the relevant constitutional and statutory texts and to reason within the tradition of the case law.
...
If the words of the written opinion reveal that the judge did not follow the discipline of the judicial process, what sense does it make to take the judge’s word about what the law means over the word of the president? If the judge’s own writing does not support a belief that the rule of law has substance and depth, that law is something apart from political will, the significance of saying the president has gone beyond the limits of the law evaporates.

I am not worried about presidential abuse of power. No matter how bad he gets, the President faces re-election every four years, cannot hold office more than two terms, does not have the power to make laws, and can be overruled by Congress and the courts. It's the courts I'm worried about. Who elects them? When do they leave office? Who overrules them? In theory, Congress can write new laws, but the courts seem to believe they have the power to overrule anything less than a Constitutional amendment. Our system of government, which is supposed to be by the people and for the people, is everyday slipping more into government by the lawyers and for the lawyers.

Well, if you haven't heard, Mel Gibson was arrested last week for drunk driving. When he was arrested, he said some nasty things about Jews. I'm disappointed in him, certainly. I'm wary about making too much of it, though. It is well known that his father is anti-Semitic, and it may well have shaped his thinking growing up. However, I don't believe that drink is the fount of truth either, so while his drunken raving certainly indicates anti-Semitic influences in his thoughts, I'm not qualified to say what's in his, or anyone else's, heart. I think Doc Rampage has a pretty good take on this.