The Boumediene v. Bush decision by five liberal judges, Kennedy, Stevens, Souter, Ginsburg, Breyer granting enemy combatants harbeus corpus was met with obvious glee from the left. The conservatives were understandably pissed off. Here is one possible explanation for the conservative reaction. Back in 2005, same five liberal judges Stevens, Kennedy, Souter, Ginsburg and Breyer decided that the government has a right to take your property "to promote welfare" - i.e. basically, if the government likes it, it can take and pay you whatever it thinks it okay (see Kelo vs City of New London). In other words, same liberal judges grant more rights to terrorists, while fucking up the rights of law abiding Americans. Now, I wonder, why wouldn't this piss off the liberals? Could someone explain?

actually conservatives are happy.

Neocons and assorted idiots/fascists like gringo are pissed off.

Kelo which you are referring to here is interesting thing for you to cite. In particular you misquote the basis for Kelo. The basis is that Government can take ANY property for its purposes as long as it pays "just compensation" That is in the explicit text of the US Constitution.

nor shall private property be taken for public use, without just compensation.

Yet when we go to read the arguments of that most conservative textualist on the SCOTUS, ie Thomas, we don't find him actually defending the text of the US Constitution in any way, nor do we find Scalia invoking the original intent of the founders, which included commandeering ships and cargo. No instead we find them arguing a contemporary and value laden reading of that phrase:

The most natural reading of the Clause is that...

So what we have Gringo bent about here is that the "liberals" invoked originalism and textualism in an outcome he doesn't like, while his much vaunted "conservatives"lost when invoking a "living constitution" approach.

And the same happens in Boumediene. The liberals turn to the core text of the US Constitution - Article I Section 9

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

No bill of attainder or ex post facto Law shall be passed.

And notice that War is not listed in the reasons for suspension of Habeas. Yet Scalia not only pretends that this matters, he asserts as fact something that never has been entered into factual evidence - a Declaration of War as required by the US Constitution for any sort of War Powers to extend to US Soil (and Guantanamo has been ruled US soil previously)

I shall devote most of what will be a lengthy opinion to the legal errors contained in the opinion of the Court
o o o
America is at war with radical Islamists.
o o o
At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield. See S. Rep. No. 110–90, pt. 7, p. 13 (2007) (Minority Views of Sens. Kyl, Sessions, Graham, Cornyn, and Coburn) (hereinafter Minority Report). Some have been captured or killed. See ibid.; see also Mintz, R

Notice how Scalia claims he will focus on legal errors, but instead goes on to create his own definition of War, introduce his own "facts" which really are "views" (ie opinions) of conservative minority CongressCritters.

Hmm so where is this much vaunted "conservatism"?

And how does limiting The Government's right to suspend habeas "fucking up the rights of law abiding Americans"?

Me thinks that like Scalia, Gringo believes that it doesn't really matter what The Constitution says, as long as a conservative POLITICAL viewpoint is articulated by SCOTUS then we are all in safe hands, but ask us to live up to the challenges of the US Constitution:

Those who would sacrifice any of our precious liberties for a temporary measure of security, deserve neither security nor liberty, - Benjamin Franklin

And all of a sudden things are going to hell in a handbasket.

Cowardice, nothing more than sheer cowardice

Degs: When someone discusses the "most natural reading" of a clause in the Constitution, that means they are reading exactly what it says instead of some tortured reading that gives it a different meaning. While I disagree with Kelo, I'm not certain the court could have found any other way, without resorting to a tortured reading of the document. The issue in Kelso, for me at least, was not whether or not the land could be taken, but whether the compensation was just -- and I felt the court could have given the landowner more power in making that determination without a tortured reading of the the 5th Amendment. Even without my own view, I think Thomas makes a valid point that the Framers allowed property taken for public "use" not public "purpose."

By the same token, you are assuming that a tortured reading of the text is "originalist," as the majority did in Kelo. Thomas' dissent is spot on -- a public "use" is a road, or a school, or a park -- a public "purpose" reading of the clause essentially deletes the clause. "If the Public Use Clause served no function other than to state that the government may take property through its eminent domain power–for public or private uses–then it would be surplusage," Thomas writes, correctly.

As for the decision in Boumediene, you would be right on habeas, if there were no historical precedent for detaining enemy combatants without habeas, but there is 200 years of U.S. history in opposition, starting with the Barbary Pirates and going forward through a number of other conflicts, declared and undeclared.

When it comes to a writ of attainder, you are employing a tortured reading. A writ of attainder requires an act of Congress. To wit: A bill of attainder (also known as an act or writ of attainder) is an act of legislature declaring a person or group of persons guilty of some crime and punishing them without benefit of a trial. The United States Constitution forbids both the federal and state governments to enact bills of attainder, in Article 1, Sections 9 and 10, respectively. It was considered an excess or abuse of the British monarchy and Parliament."

Mostly, the barring of bills of attainder was about the separation of powers -- their ban keeps the legislature from performing judicial functions. In reality, five acts of congress have been overturned because they were bills of attainder. So you are again employing a tortured reading of the Constitution to try and make your case, just as the SCOTUS judges did in the Boumediene.

Welcom back -- I hope your trip was enjoyable.

What "tortured reading"? The text says

nor shall private property be taken for public use, without just compensation

IOW if The Government deems a use to be in the public interest and justly compensates the owners for taking that property then the "natural meaning" is met. Thomas doesn't like this so he layers n the contemporaneous understanding of what "public use" means - just as you do. But that is a contemporaneous understanding, it is NOT a textualist reading.

QED Thomas is betraying the type of analysis he claims to use.

As for Writ of Attainder, no it wasn't "mostly about separation of powers". It was very specifically about the acts of King George who would define various colonists as "traitors to the crown" or some similare "enemy combatant" designation, appropriate their property, throw them in jail and all without due process and for an indeterminate amount of time.

IOW exactly what GWB has done on Gitmo. No "tortured reading" at all. Just plain and simple originalism. The Writ of Attaineder clause is specifically there to PRECLUDE a POTUS from holding prisoners on a prosecutorial accusation of some arbitrary threat to The Government in prison without access to Due Process. Plain and simple.

Exactly what has been done with "enemy combatants" wh are being accused of violating Geneva Conventions (ie attacking without being part of a militia or organic insurgency), imprisoned for a duration tht is up to the discretion of the POTUS. QED Writ of Attainder

What "tortured reading"? The text says

nor shall private property be taken for public use, without just compensation

Degs "use" is not the same word as "purpose" as you (and SCOTUS's majority) would have it. "Use" didn't mean "purpose" 200 years ago, and it doesn't mean it now. It's a tortured reading. It doesn't matter if something is in the public interest, or for a public purpose -- what matters is whether or not it is for the public "use." The majority used a "contemporaneious understanding" of "use" to redefine it as "purpose." In other words, they used a tortured reading. Thomas was right, the majority wrong, and our nation damaged as a result.

Article I, Section 9, U.S. Constitution reads, "

"No bill of attainder or ex post facto Law shall be passed."

So, the constitution forbids "bills" of attainder, and bills require an act of Congress, and which means the provision is about separation of powers. As I said, five acts of Congress have been overturned because they were bills of attainder. There's really no other definition of the term that is applicable under U.S. law. So, no matter what GWB has done in GitMO, it isn't a bill of attainder, because Congress did not act.

You don't like to use these terms of art accurately because to do so would impinge upon your case against the president and his administration. Fortunately for him, his people are better lawyers than you. Perhaps you'd be right about "writs" of attainder, but writs of attainder are not what is banned by the document (and I don't think you'd be right in any case). But when it comes to Bills of Attainder, you are ignoring the legal facts.

Oh I see, so in the case of Writs of Attainder, you take the most general empowerent of The Government (ie only Bills of attainder passed by Congress are prohibited, the executive can wield them to heart's desire), but in the general welfare clause, you seek to limit Governmental power to an absolute minium. IOW its ok to lock someone up on a capricious charge with no meaningful due process or habeas but its not ok to improve the lives of citizens.....

as for "terms of art" - Thomas doesn't claim to rely on "terms of art". He CLAIMS to rely on the pure meaning of the text. After all "terms of art" are inherently cotemporaneously nuanced. And "use" the textual definition is sufficiently broad as to include "using" the property by simply having it in the public inventory.

And note that the US Constitution does not set a minmum period that property must be held by a government before it can be sold off to "satisfy the debts" of the government.

Thus for a TEXTUALIST - which is what Thomas claims to be - there is nothing more than the text, an the text places no limits on the TYPE of use that The Government must place upon the property, nor the duration that The Government must hold the property.

I have no problems inherently with Thomas' analysis. As I've said before, I largely agree with it. THAT IS NOT THE ISSUE. The Issue is that Thomas claims to be a textualist, yet in Kelo he invokes contemporary meaning ("Most natural reading") as the reason for opposing Kelo. IOW he opposes Kelo on belief first, and then fashions an arguement to fit. In this case a "Living Constitutional" arguement.

Thus Thomas demonstrates that he is every bit as much an "activist" Warren, Burger or anyone else you decry as "activist"/

Oh I see, so in the case of Writs of Attainder, you take the most general empowerent of The Government (ie only Bills of attainder passed by Congress are prohibited, the executive can wield them to heart's desire), but in the general welfare clause, you seek to limit Governmental power to an absolute minium. IOW its ok to lock someone up on a capricious charge with no meaningful due process or habeas but its not ok to improve the lives of citizens.....

Wrong in both instances, Degs. In all cases, I require the government to be limited in its scope and power in the way that the Constitution says. It says (and this was the standing definition for 170 years) that government funds can only go to support the "general" welfare -- not the welfare of a specific group (the poor, the elderly, farmers). It says that the government can take property for public "use." It doesn't say the government can take property for public "purpose." It bans "bills" of attainder -- and bills are in enactedby Congress. It is silent otherwise. The words mean what they say, and only by twisting them can they be made to say or mean anything else.

as for "terms of art" - Thomas doesn't claim to rely on "terms of art".

"Bill of attainder" is a term of art. "Public use" (as opposed to public purpose) is merely a reading of the plain text of the Constitution. Neither I nor Thomas is twisting anything here.

And note that the US Constitution does not set a minmum period that property must be held by a government before it can be sold off to "satisfy the debts" of the government.

Thus for a TEXTUALIST - which is what Thomas claims to be - there is nothing more than the text, an the text places no limits on the TYPE of use that The Government must place upon the property, nor the duration that The Government must hold the property.

Twist away degs, but you can't make "use" turn into "purpose." Taking the land from someone to give it to a private developer, in the name of increasing tax revenue, does not put the property into public USE, no matter that it might benefit the public purpose. I don't regard Thomas' reading as contemporaneous -- use and purpose can't mean the same thing today and didn't mean the same thing in the 1700s. If anything, the majority is using a contemporaneous interpretation of the text by "repurposing" the word "use." Which makes the majority activist, not Thomas.

Use or purpose - there is nothing to twist. If the use was simply to hold the land for some period until a proper means of development can be found, then that is a use. And if that period is a matter of hours, the Constitution puts no textual or intentional limit on it.

Thus any TEXTUALIST would necessarily have to agree with the Kelo decision. But of course Thomas came into it with a belief about the outcome and then used contemporary understanding and reading of the text to justify his position. Thats neither textual nor original - that's "contemporary values" aka Living Constitution.

and the same goes for Scalia's Raich decision.


These are not "originalists" or "textualists" in any meaningful sense of the word. They simply are activists that align with your agenda.

Use or purpose - there is nothing to twist. If the use was simply to hold the land for some period until a proper means of development can be found, then that is a use. And if that period is a matter of hours, the Constitution puts no textual or intentional limit on it.

I suppose this is true, but it is also the sort of legal hairsplitting that amounts to an activist judiciary. It is clear that any reading of the normal meaning of the 5th Amendment does not give the government the power to vacate the ownership of a piece of property by one person and bestow it on another person, for the second person's benefit and profit -- that's what Kelo enables, and there is really no way a reading of the plain text can authorize such a thing without twisting its meaning.

Thus any TEXTUALIST would necessarily have to agree with the Kelo decision. But of course Thomas came into it with a belief about the outcome and then used contemporary understanding and reading of the text to justify his position. Thats neither textual nor original - that's "contemporary values" aka Living Constitution.

No, any textualist would read the text, and assume that it meant what it said, rather than redefining "use" to mean "purpose." That redefinition is, to quote you, giving the document a contemporaneous reading, which is what the majority did in that deplorable decision.

and the same goes for Scalia's Raich decision.

Well, I don't disagree with you on the Raich decision. I never said any of the justices was perfect when it came to textualists. Some of them pay at least SOME attention to the document and its original meaning. Really, if you want to criticize the Raich decision, you should agree with me on the New Deal -- it was the New Deal's twisting of the commerce clause so that it could be used to regulate anything, thereby essentially abrogating the 10th Amendment, that made the Raich decision possible. As I've said many times in the past, if you twist the document so that it can do things you like (Social Security, Medicare and other non-constitutionally authorized powers) it can be twisted to do things you don't like -- restricting the sale of medicinal marijuana. At the bottom, the discussion breaks down into, "which side started this sort of distortion" -- and it wasn't the conservatives who started it.

Hairsplitting is EXACTLY what the judiciary is supposed to do. Whereever you draw the line a hair is split, and the Judiciary's role is to draw lines. If anything this is EXACTLY what textualism and originalism require:

• What does the text say? (it places no limits on the type or duration of use)
• What was the intended limit of the clause? (To preclude the kind of "emmient domain" commandeering that the Crown was using to get out of debts by not paying any meaningful compensation).

So clearly the "textualist" and "originalist" interpretetations here do NOT serve the positions that Scalia, Thomas - and even you and I THINK should be invoked. And curiously it is Scalia and Thomas' BELIEFS that are most predictive of their rulings, not anything in the text of the US Constitution (Raich, Hamdan, Rassul, Hiibel, Terry etc. etc.)

No, any textualist would read the text, and assume that it meant what it said, rather than redefining "use" to mean "purpose."

Since "use" includes in its definitions "purpose" as a synonym, then your hair splitting is not based in the text, but in your belief in its meaning. IE in YOUR BELIEF. And that if you look at the espoused belief systems of Thomas and Scalia, they are the MOST PREDICTIVE of how they will rule. Its not just Raich, its Terry, Hiibel, Hamdan, Rassul, BushvGore, Exxon and any number of rulings going back pretty much for their whole tenure.

Now all of those are consistent with the BELIEFS of a "conservative" approach to life, but they are NOT textualist or originalist approaches. Its not just that these two paragons of originalism and texutalism are imperfect when it comes to such approaches. It is that neither textualism nor originalism provides a reliable means for predicting how Scalia or Thomas will rule - but their BELIEFS DO.

Thus they are no less "activist" than any of the "activist" judges that you and other conservatives have so decried in the past.

Since when have you cared about the "intended limit" of a clause in the Constitution? That would be an statement about "original intent," and you have repeatedly repudiated the idea that we can know the original intent of the Constitution in any meaningful way.

Clearly, the founding fathers (again the shorthand) did NOT intend the sort of moneymaking landgrab authorized by Kelo. This may be why they chose the word "use" over "purpose" or that may only have been a felicitous use of language -- but any other reading of the language invalidates its reason for existence. So clearly ONLY a textual reading of the document can support Scalia and Thomas' contentions in Kelo.

I'm sorry, but "use" and "purpose" are only synonyms in some contexts, and this text does not support their interchangability in the Constititution.

As for the conservatives on the court voting in a conservative way, my real response is "big deal." I haven't heard you complaining that the liberals on the court vote in liberal ways. The Constitution was written by men, and they knew the people coming after them would be people, not saints, which is why there are controls written into the document to give no one branch too much power (the courts have extremely limited power to enforce their decisions, for example).

And I don't find their beliefs all that predictive. You mentioned "Terry" in your laundry list, and the ruling on Terry stops was antithetical to mainstream conservatism, and yet supported by Thomas, certainly (and I think by Scalia as well). Given that, it seems their beliefs aren't as predictive as you would have it.

Thus they are only less "activist" than any of the "activist" judges that any observer of the court, who cared about the future of the country, would criticize.

Oh come on trap, you know me better than that. The very reason that I dismiss the notion of any real "originalism" is precisely because I know and can construct exactly that sort of arguement despite fully being aware of how much my CONTEMPORANEOUS cognition cannot be eschewed. Secondly you also know that the discussion here is whether or not Scalia and Thomas are actually originalists (perhaps imperfect ones) - as you contend, or whether they are simply "activists" from the conservative world view side.

To determine that question one has to make the so called "originalist" analysis first as best one can, and to compare Scalia's and Thomas' ruling patterns in those cases where the "originalist" analysis goes contrary to conservative thought. Because logically you would expect them to vote their "legal framework" if that was their basis. Alternatively if their vote can be predicted from their espoused conservative world views, then the case is clearly made for "conservative activist". (You also must have read me stating multiple times that a CONTEMPORARY UNDERSTANDING of "original intent" is one part of the decision making process)

Now I must have been unclear in my writing, but I don't see how you could consider "Terry" being antithetical to mainstream conservatism. It is completely consistent with the GovernmentOverIndividualRights approach to "Law and Order" that is mainstream conservatism. So is Hiibel, so is Raich. And yet each of those are pretty clear violations of any sort of "textualist" or "originalist" analysis of search, regulatory or detention powers ceded in The Constitution.

Thus it is precisely the votes of Thomas and Scalia in these and numerous other cases that demonstrates that their "originalism"/"textualism" is at best an ala carte approch, if not simply a dishonest smoke screen.

It is this smoke screen that is the issue, not their actual activism. After all, if The Federalist Society came out and said

"We are conservatives who want to see conservative activist judges seated on the courts"

Its pretty clear that their future pronouncements would be met with the justified skepticism reserved for partisan advocates. Instead we have yahoos who periodically roll into here (and elsewhere on legal blogs) who talk about how there is no "right to abortion" written into the Constitution (despite Am4,5,6,9 and 13) and that therefore it is "liberal activist judges" that "make law out of nothingness". Were they required to face the honest assessment that Raich, Terry, Hiibel, Exxon, BushVGore etc. all actually gave The Government powers that the US Constitution never ceded to The Government, then perhaps we could actually have a discussion as to how justices SHOULD be selected.

Degs: Where we differ is in your thinking the "government over individual rights position" is conservative. I hold that that position liberal. It is always the liberals who call for more regulation, more control of gasoline, or tobacco, or speech. In my entire life I've never heard the call for reducing individual rights come from the right. All those calls come from the left, where we can eliminate free speech in the name of eliminating hate speech; eliminate the right to weapons in the name of "a temporary measure of security" ( a non-quote of not Franklin) and that we can't defend the remaining rights via any force that might actually use force.

So when you have said, repeatedly, that we can't know the actual meaning of the words written by the framers of the Constitution, you are denying that you can: "...construct exactly that sort of arguement despite fully being aware of how much my CONTEMPORANEOUS cognition cannot be eschewed." Either the writer's intent is obvious, as I believe, or it is not -- and you cannot logically have it both ways.

I regard Terry and Raich as opposite of conservative thinking -- the conservative want less government interference and stricter adherence to constitutional limits. The SCOTUS rulings in both instances promoted government interference -- expanded government power. That is antithetical to the desires of small-government conservatism.

Now, as you may or may not be aware, I'm pro abortion. I don't, however, find any constitutional protection for it - I thinkthe constitution is silent in the matter, and it should be left to the states or to the people. SCOTUS did indeed "make law out of nothingness" in finding abortion in the unwritten penumbra of other rights.

We agree on Terry and Raich. We disagree on Bush v Gore (once the second machine count was tallied, there should have been no additional votes counted -- particularly not the selected counties as the Gore campaign wanted. SCOTUS was correct to finalize the issue). It is, well, illiberal for a liberal such as yourself to look to find limits to government powers in the actions of the court. You don't believe in the limits undeniably written into the constitution. People like you took the cuffs off government in the 1930s. You have sown the wind -- reap the whirlwind. Don't blame conservatives for doing what you empowered them to do.

In my entire life I've never heard the call for reducing individual rights come from the right

Really? Anti-Sodomy laws? DOMA? Suspension of Roe? Support for Jim Crow? Limitation on my right as a citizen to travel without ID? Suspension of Miranda? Limitations on Habeas appeals? Limitations on the right to unionize? Limitation on the rights of workers to strike? Limits on the rights of citizens to bring tort claims for harm done to them? Gagging MDs on rerpoduction? Limiting a Congressman's right to swear on the Koran? Supporting the McCarthy blacklist? Opposing the teaching of Yoga in Gym?...

Do I really need to go on with the list?

Terry and Raich are both core conservative viewpoints. Law and Order support in Terry and anti-drug use/Drug War in the case of Raich. Now if you redefine "conservative" to exclude those very popular "Law and Order" and "anti-drug" and "anti-gay" themes, then you are describing a conservative party that is very different than what currently drives American politics.

Conservatives no more want smaller government than they want adherence to strict Constitutional limits - as evinced by their active support of DOMA, stripping of Habeas rights of those convicted, and the consistent expansion of Government budgets and staff in EVERY conservative administration since 1968 (during which the GOP has held the White House 28 of 40 years).

BushVGore's problem is that the conservatives on SCOTUS decided to ignore the US Constitution that expliclty puts the decisions about the presidential election process firmly in the realm of State Rights and State Courts. Thus SCOTUS should have ruled that there was no standing to bring the case to the Federal Bench and that the FL Supreme Court rulings should stand. And had Scalia and Thomas been consistent with their pattern of "State's Rights" rulings, as well as the text of the US Constitition, they would have ruled that way.

Note that you argue the conservative BELIEF about when the recount should have stopped, NOT the actual issue of the BushVGore decision.

As for

Either the writer's intent is obvious, as I believe, or it is not -- and you cannot logically have it both ways.

I'm not having it both ways. Naturla Language is inherently ambiguous - computers have a great deal of difficulty parsing meaning from natural language precisely because to do so requires "Real World Context". Now "real world context" is what WE as humans bring to any natural language text - and it is something that we construct as the totality of our experience with the symbolic meanings of the tokens in that language. Computers typically lack that accretion of experience (some language parsers get "contextually trained" in a very limited manner) necessary to distinguish between someone telling a story about "lights get brighter" and a command to the building control system "Lights! Get Brighter!".

Thus to parse Natural Language - in particular one that is symbolically laden - REQUIRES that you bring your contemporaneous experience to the understanding of that text. And it is neurophysiologically impossible to set aside the contemporaneous training/understanding without also inherently setting aside your ability to understand the language.

Thus while in YOUR MIND the phrase "use" has a particular meaning in Am5, that understanding is based on your CONTEMPORANEOUS understanding of the context for that word, NOT out of any inherent clarity in the text.

Thus while the "intent" may be "obvious" to you - a different understanding of the same "intent" can very well be "obvious" to someone who comes from a different world view than yours.

And that is precisely what is going on with Scalia's and Thomas' rulings. Their Written Opinions are almost 100% predictable based on the conservative world views they espouse. Scalia is a Catholic (anti-gay, anti-choice), Law and Order (Raich, Terry, Hiibel, Roper) pro-corporate (Exxon and other tort limits) anti-union, pro-gun (predicting how he will rule in Heller - wanna take the bet?) pro-GOP (BushVGore) anti-government social programs (Kelo), and it clearly shows in his rulings. He finds the logic necessary to reach the conclusion he believes in going in.

conservative activist - nothing more or less. And that is EXACTLY what conservatives want instead of the smoke screen claims of "adherence to constitutional limits".

And how can Roe have "created law" when all it did was strike down the power of legislatures to PASS laws on abortion? How is it a "creation of rights" when Am9 explicitly states that all such rights exist? No, Roe was only activist in giving The Government even a limited right to regulate since that inherently violates Am 13