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"...public opinion deserves to be respected as well as despised" G.W.F. Hegel, 'Philosophy of Right'

defending liberty « Previous | |Next »
September 10, 2011

David Cole in his After September 11: What We Still Don’t Know in The New York Review of Books makes a good point about the US political system.

The Constitution created a divided government to limit overreaching by any one branch, and established judicial review to ensure that we would have a government “of laws, not men,” as Chief Justice John Marshall put it. In ordinary times, that structure functions reasonably well. But in times of crisis, it has proved inadequate.....In each crisis, the political branches were more likely to goad each other on than to impose limits, and the Supreme Court either expressly affirmed what went on or looked the other way.

He adds that the 9/ll crisis was different:
As before, the executive overreacted. As before, Congress imposed no meaningful limits. But this time the Supreme Court, breaking from its past, stood up to the President. It insisted that it was responsible for reviewing detentions during wartime, rejected claims that it must defer to the executive, ruled that military detainees must be accorded Geneva Conventions protections, and, most extraordinarily, kept the courthouse door open for the Guantánamo detainees even after Congress and the President, acting together, had unequivocally sought to close it.

However, the Court has done nothing to halt the US government from overreaching its legitimate constitutional powers, even declining to review several cases challenging the executive’s aggressive uses of secrecy, torture, and rendition.

Cole says that the real drivers in the defence of liberty comes from civil society— the loosely coordinated political actions of concerned individuals and groups, in the US and abroad whose public criticism of government actions (eg., the widespread preventive detention of Muslim and Arab immigrants; rendition to torture; the CIA’s black sites) appealed to the residual power of the ideals encompassed in the rule of law—liberty, equality, fair process, and dignity.

| Posted by Gary Sauer-Thompson at 2:45 PM |