From: Brian Menard
Subject: Re: Young's (Not So) Excellent Adventure in 2000 Election - Re: Real Intolerance
I think the best way for me to respond to the thrust of this is to put it into context by parroting the position of Henry J. Abraham, one of the few non-lawyers in modern times to be on a short list for the Supreme Court. Abraham's academic career was built on the idea that the process of resolving constitutional arguments is an exercise in line-drawing. There are two extremes to every right - totally unrestricted and totally negated - and the wide array of points in between these extremes. Governments, and in particular the courts, must draw lines that establish how the concepts of particular rights manifest in actual practice. For example, we can say we support the freedom of speech, but does that freedom mean always and everywhere, or are there circumstances in which we limit things. The SC says that we DO limit that right, with one of the earliest limitations being the "clear and present danger" test (e.g., you can't yell "FIRE!" in a crowded theater). Other lines the SC has drawn on the speech question deal with conduct, profanity, immediacy, pornography (with the infamous, "I can't define it, but I know it when I see it" quote), student speech in schools, and more. From the collection of previous e-mails, it seems none of us argues that the freedom of speech is unlimited. So the question really is what lines do we each advocate drawing. In the world of constitutional law, such lines - at least in theory - are supposed to be applied evenly and consistently, which can be a challenge. The same line-drawing exercise applies to the other rights guaranteed to us, including the Fourth Amendment rights that seem cogent to this discussion.
As far as sending an email in reply to Intolerance and the First Amendment, I have a lot to say about this-but, I don't know where to begin? It's a hard thing to talk about, kind of like our Seattle diatribe, or my lame defense of American Imperialism. It was meant, in a spirit of dialog and I must confess, I was pulling chains or pushing buttons a little bit...But, it's hard to have a discussion about things that are not morally sound but may be wise in a prudent, or 'real Politik way. For example, I wanted to point out that, some of our best presidents have advanced agendas of imperialism and even dictatorship. I did not, however, want to be known as the "imperialist pig" (sorry, Young, no offense-I know you were just kidding) who was defending and probably deep down agreed with some elements of American hegemony or imperialistic policy. So, it's hard to talk about these things without offending people. And it's hard to talk about some things without appearing to be an advocate of those things. In other words, is it possible to defend war, imperialism, or in this case the sacrifice of our freedoms for security and safety, without appearing to be a proponent of these difficult and unpopular views?
Thus, I believe that you might have been trying to ignite a discussion about the military commissions act. I think that you wanted to begin a discussion on our loss of personal freedoms and make connections between certain political philosophies and the loss of those freedoms?
Certainly, the first amendment protects our freedoms, the very freedoms in fact that, the military commission act suspends or revokes "during a time of national emergency or war."
So, what freedoms have we lost and why have we lost them? I believe that we could identify many of these points rather quickly. Also, however, I think that you (Young) would like to examine why we have sacrificed those freedoms in an attempt to allow our government to keep us more safe and secure?
Of course, we all know the 'Catch-22'- As Olbermann more aptly summarized it, "The Military Commissions Act has sacrificed our freedoms to a government more dangerous to our own liberty than the enemy, it claims to protect us from."
My question is two-fold. Do we all agree with the above preceding statement? And are there any circumstances that we could imagine, that would require a suspension of individual freedom and liberties? Bush argues, that the time is now. Is now the time? Has there ever been a time when the military commission act was necessary? Further, Bush has argued that the military commission act has saved lives and prevented terrorist attacks-If this is correct, is Bush, right?