House of Eratosthenes

Before I get into the guts of that goofy wiretapping decision, let me first express my high admiration for two fine legal minds, one dead, one living. The dead-white-guy comes first. See if you can recognize the source of these words; you would be well-served to be able to.

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If then the courts are to regard the constitution; and he constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.

Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.

This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

That it thus reduces to nothing what we have deemed the greatest improvement on political institutions-a written constitution, would of itself be sufficient, in America where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favour of its rejection.

The judicial power of the United States is extended to all cases arising under the constitution. Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises?

This is too extravagant to be maintained.

The subject is the ability of the Supreme Court to declare a law unconstitutional. I’ll let you in on who the author is, but first, I want to go after the pattern of logic here. Take a good look at what’s happening.

The author first establishes that what greets us, is an either-or scenario, no “middle ground” being possible. Of course, his example gets that going automatically, so he doesn’t need to articulate it. Now, you can pick A or B; both may not apply, and one or the other must; the author is a proponent of B. He does not write about how the sun will shine every day if B prevails, or about the rivers flowing with chocolate or mountains made out of marshmallows, or Hatfields and McCoys playing hopscotch together happily. He doesn’t tell you the air will be fresher if you pick B, or how much better the food will taste. He doesn’t tell you that Christopher Reeve will get outta that wheelchair and dance a jig if you pick B.

No, he writes about what happens if you pick A. The option he doesn’t want.

And then he writes about the consequences in the most flattering terms possible — for his opposition.

In short, his words are intended for that opposition. He doesn’t call them a bunch of poo poo heads or anything like that…he simply takes their position, and pursues it, extending it into the most generous possible, yet unappealing, and unvaoidable, consequences. It’s simply devastating. It is logic. Learn it, live it, love it.

So, that’s what Chief Justice John Marshall had to say in 1803, handing down the Marbury v. Madison decision that defined the Supreme Court’s authority to declare things unconstitutional to begin with. It is logic we don’t see today, from Republicans or Democrats — certainly not from the latter. It is not “Hooray For Our Side” type stuff, by any means. This is the kind of thing that is done right before minds are changed. Yes, it is possible. We tend to forget, but once upon a time men were expected, if they were adequately educated and sufficiently articulate with the written word, to make enemies into allies. Resentful allies, maybe, but allies nonetheless.

Today, we don’t even try for it.

Okeedokee. There’s your dead-and-decomposed legal mind. Now for the still-living one.

Ann Althouse has written extensively on this decision, here and here and here and here and here and here. Of course, she isn’t doing what John Marshall did, she’s just snarking. But it’s good, solid snarking. Besides, when you’re a District Judge and you hand down a written opinion about controversial subjects, you should expect a snarky snippet or two. You’re asking for them.

Conservative columnists have not let Judge Diggs Taylor down here. They’ve been snarking away. But most of the stuff boils down to this, I’m afraid: “This is a stupid decision because I don’t like what it says (and I haven’t read it).” Not very compelling. And it certainly doesn’t rise to the Marshall standard.

Nor does Ms. Althouse…but she’s still far superior. Plenty good enough for me. She has a fine legal mind and, in the links above, makes some great points. Read up.

Now, for whatever it’s worth, from reading the decision myself, these are my impressions.

Pages 1 to 17 are pretty mundane, although they nevertheless are remarkable for two reasons. One, they recount the history of prior cases in which the rights of citizens to have their days in civil court, and of The People to be represented in pressing criminal proceedings, conflicted directly with the urgency in keeping state secrets under the protections deemed proper. Kind of interesting stuff, there. Two…they prove Judge Anna Diggs Taylor has what it takes, to research into matters of fact, and recount them. This becomes relevant later.

On page 18, the Diggs Taylor locomotive begins to slip off the track of reason. The issue is whether the plaintiffs, ACLU et al, have standing to bring suit against the defendant, the NSA.

The ability to communicate confidentially is an indispensable part of the attorney-client relationship. As University of Michigan legal ethics professor Leonard Niehoff explains, attorney-client confidentiality is “central to the functioning of the attorney-client relationship and to effective representation.” He further explains that Defendants’ TSP “creates an overwhelming, if not insurmountable, obstacle to effective and ethical representation” and that although Plaintiffs are resorting to other “inefficient” means for gathering information, the TSP continues to cause “substantial and ongoing harm to the attorney-client relationships and legal representations.” He explains that the increased risk that privileged communications will be intercepted forces attorneys to cease telephonic and electronic communications with clients to fulfill their ethical responsibilities. Defendants argue that the allegations present no more than a “chilling effect” based upon purely speculative fears that the TSP subjects the Plaintiffs to surveillance. In arguing that the injuries are not constitutionally cognizable, Defendants rely heavily on the case of Laird v. Tatum, 408 U.S. 1 (1972).

In December 2005, the President publicly acknowledged that the TSP intercepts the contents of certain communications as to which there are reasonable grounds to believe that

* (1) the communication originated or terminated outside the United States, and

* (2) a party to such communication is a member of al Qaeda, a member of a group affiliated with al Qaeda, or an agent of al Qaeda or its affiliates.

In Laird, the plaintiffs sought declaratory and injunctive relief on their claim that their rights were being invaded by the Army�s domestic surveillance of civil disturbances and “public activities that were thought to have at least some potential for civil disorder.” Id. at 6. The plaintiffs argued that the surveillance created a chilling effect on their First Amendment rights caused by the existence and operation of the surveillance program in general. Id. at 3. The Supreme Court rejected the plaintiffs� efforts to rest standing upon the mere “chill” that the program cast upon their associational activities. It said that the “jurisdiction of a federal court may [not] be invoked by a complainant who alleges that the exercise of his First Amendment rights is being chilled by the mere existence, without more, of a governmental investigative and data-gathering activity.” Id. Laird, however, must be distinguished here. The plaintiffs in Laird alleged only that they could conceivably become subject to the Army�s domestic surveillance program. Presbyterian Church v. United States, 870 F.2d 518, 522 (1989). The Plaintiffs here are not merely alleging that they “could conceivably” become subject to surveillance under the TSP, but that continuation of the TSP has damaged them. The President indeed has publicly acknowledged that the types of calls Plaintiffs are making are the types of conversations that would be subject to the TSP. Although Laird establishes that a party�s allegation that it has suffered a subjective “chill” alone does not confer Article III standing, Laird does not control this case. As Justice (then Judge) Breyer has observed, “[t]he problem for the government with Laird . . . lies in the key words ‘without more.'” Ozonoff v. Berzak, 744 F.2d 224, 229 (1st Cir. 1984). This court agrees with Plaintiffs’ position that “standing here does not rest on the TSP’s ‘mere existence, without more.'” The Plaintiffs in this case are not claiming simply that the Defendants� surveillance has “chilled” them from making international calls to sources and clients. Rather, they claim that Defendants� surveillance has chilled their sources, clients, and potential witnesses from communicating with them. The alleged effect on Plaintiffs is a concrete, actual inability to communicate with witnesses, sources, clients and others without great expense which has significantly crippled Plaintiffs, at a minimum, in their ability to report the news and competently and effectively represent their clients. See Presbyterian Church v. United States, 870 F.2d 518 (1989) (church suffered substantial decrease in attendance and participation of individual congregants as a result of governmental surveillance). Plaintiffs have suffered actual concrete injuries to their abilities to carry out their professional responsibilities. The direct injury and objective chill incurred by Plaintiffs are more than sufficient to place this case outside the limitations imposed by Laird.

Got that? Here, I’ll bottom line it for you: Alleged violations of the Fourth Amendment, based on no evidence, just speculation…plus a “chilling” effect from that speculation, upon whatever you do professionally — from representing legal clients, to running a church, and I must presume everything in between, and beyond — equals…standing to sue, under the auspices of Laird v. Tatum (1972).

Zowee! Professional responsibilities. Huh. So…if I have “professional responsibilities” to run a shop, and I want to hire some kid to sweep the floors for three dollars an hour, and the kid is willing to work for that wage, I can sue to havve the minimum wage laws overturned as unconstitutional. Right? I have standing, right? Anna Diggs Taylor must agree with that. How about logging? What if I’m a lumberjack who has “professional responsibilities” to cut down old-growth trees, and the Endangered Species Act keeps me from doing that. Standing to sue, right? Judge Diggs Taylor surely must think so!

I mean she has to…because right after that, she goes on to cite an example that is the direct opposite of the lumberjack example above. For every action there has to be an equal and opposite reaction, right?

The instant case is more akin to Friends of the Earth, in which the Court granted standing to environmental groups who sued a polluter under the Clean Water Act because environmental damage caused by the defendant had deterred members of the plaintiff organizations from using and enjoying certain lands and rivers. Friends of the Earth, 528 U.S. at 181-183. The Court there held that the affidavits and testimony presented by plaintiffs were sufficient to establish reasonable concerns about the effects of those discharges and were more than “general averments” and “conclusory allegations.” Friends of the Earth, 528 U.S. at 183-184. The court distinguished the case from Lujan, in which the Court had held that no actual injury had been established where plaintiffs merely indicated “‘some day’ intentions to visit endangered species around the world.” The court found that the affiants’ conditional statements that they would use the nearby river for recreation if defendant were not discharging pollutants into it was sufficient to establish a concrete injury.

The whole decision reads like this. It’s not Marbury v. Madison by any means.

It all comes down to this. If I start reading the Diggs Taylor decision, starting at Page One with the unshakable belief that the TSP is unconstitutional, and that George Bush needs a good come-uppin’s…I will like what I read. I will feel better about having the opinion that I have. I will giggle like Roscoe P. Coltrane after finally busting Those Duke Boys for running moonshine…especially when I read stuff like this on page 40…

The Government appears to argue here that, pursuant to the penumbra of Constitutional language in Article II, and particularly because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself. We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. So all “inherent powers” must derive from that Constitution. [emphasis mine]

If I’m solidly in the defendant’s corner, or if I simply don’t have my mind made up yet…or even if I have warm sentiments toward the Judge’s decision, but am not quite completely sold on it yet…I don’t have firm support for the idea being sold here. I’m not firmly sold that “The Government appears to argue here that…[President Bush] has been granted the inherent power to violate…the First and Fourth Amendments of the Constitution, itself.” I do not know that. The Judge has not sold me on this — not unless I was already sold on that. This is hooray, rah-rah-rah, cheerleading stuff.

Nor am I sold on the idea that “[t]here are…no powers not created by the Constitution.” Not if I didn’t start from that premise. I know what Anna Diggs Taylor wants me to think, but that’s not the point. The point is how well she’s substantiated it. And here she has confronted an issue that has been subject to prolonged and raucous back-and-forth debate in the legal community, for generations now. And within the scope of her decision, she’s just settled it, by simply announcing what she thinks and moving on. Onward! To the next issue!

What a freakin’ pinhead.

As for the burning question “What in tarnation is this gutter-sniping about hereditary Kings in America?” I’ll leave that to other bloggers. NO, I’m not going to try to convince blog-readers who doubt that this is a personal attack, more toward my point-of-view. It’s just my opinion, that’s all. I have high confidence in it. President Bush is the first U.S. President in, like, 170 years or so who is the son of another President. In my estimation, it is obvious it’s a personal attack on him. Whoever doubts it is insincere, a dimwit, or both. If the Judge came out tomorrow, and insisted the blood relationship between the two Presidents was simply a coincidence — I’d look on that as being a coincidence the way Vito Corleone was an olive oil salesman. Suuuuuuuure.

But my really big deal is the rah-rah-rah “Hooray For Our Side” cheerleading stuff. The recognition that this decision, is not intended for the eyes of anybody, save for those who already agreed with the decision. If Judge Anna Diggs Taylor has one quarter of the intellectual acumen I think you should have to even be considered as a District Judge, she should have realized it would be to her benefit to write for the opposition like Chief Justice Marshall did two centuries ago…and practice mental Judo against them, persuading their center-of-gravity toward the edge of their vertical supports, and then knocking them down. And if she has a third of that above-mentioned bare minimum of intellectual acumen, she should have been able to do exacty that.

Instead, she has cooked up an entree that is garnished, as a parting shot, with the following…

As Justice Warren wrote in U.S. v. Robel:

Implicit in the term ‘national defense’ is the notion of defending those values and ideas which set this Nation apart…It would indeed be ironic if, in the name of national defense, we would sanction the subversion of…those liberties…which makes the defense of the Nation worthwhile.

HELLO Judge Anna Diggs Taylor. You are on page 43 of a 43-page decision. If you ain’t convinced me by now, you ain’t convincing me with one single cherry-picked quote from a former (thanks Ms. Althouse for pointing this out) CHIEF Justice, not simply “Justice,” of the Supreme Court.

To sum it up, if I’m alive in 1803 and I don’t like Chief Justice Marshall’s decision, and I want to argue against it, what’s my situation? It’s awkward…extremely awkward…untenably awkward. Most sane men would call it unworkable. More than a few would switch sides, because of the persuasive power of the words written, and for no other reason.

If I’m all cranky and angsty about Judge Diggs Taylor’s decision, and want to argue against it…and boy howdee, get outta the way, that line is winding around the block, take a number…what is my situation there? Where do her cherry-picked quotes from only-tangentially connected prior cases, and her “that’s my story and I’m stickin’ to it” pronouncements leave me?

Not in an unworkable situation at all. In a quite comfortable one. With the proper legal background and credentials — and in reality, I don’t even have those — I’m left more than a little anxious to show up and make my point. I’m probably parking by the courthouse an hour and a half early, chomping at the bit to get started. Probably fighting with a bunch of other lawyers for the opportunity to do it. She’s left me in the position of a hungry alley cat toying with a crippled mouse.

So yeah, Judge Diggs Taylor. Nice work. I won’t beat up on you any further, I think you’ve already done a fine job doing that to yourself.

Update 8/23/06: Someone was commenting that the fifth installment to the continuing series about my Yin and Yang theory, has a direct tie-in here. Which is correct, because this is the installment about the different ways the Yin and Yang argue. Even by itself, this one chapter is quite a windy thesis. I’ll bottom-line it: Maturing later in life, the Yin place themselves in a position of relative apathy about the feelings of those around them, placing more emphasis on their internal cognitions. To the detriment of their social skills, they have a tendency to become superior independent thinkers, and as a result are able to consider both sides of a given argument. Their opposites, the Yang, have a tendency to “win” such contests by, once you get down to the bare essentials, whipping up their own compatriots into some kind of emotional frenzy and not doing a whole lot else. And so without knowing exactly what they are doing, the Yin leave themselves “losing” the argument in any kind of public forum in which a crowd’s cheering and cat-calls decide the victor, while at the same time doing a superior job of adhering to Aristotle’s definition of an educated mind: “…to be able to entertain a thought without accepting it.”

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Memo For File XXITuesday, August 22nd, 2006

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Tuesday, August 22nd, 2006