Friday, November 19, 2010

The Law vs. The Self

Linda Greenhouse, in today's Times, on judges and the rule of law:

“America has reached a fork in the road, and the time has come to make a decisive choice,” Daniel J. Popeo, chairman of the Washington Legal Foundation, wrote this week in his monthly column in The Washington Examiner. The choice he posited was between continuing to endure judicial intervention in the conduct of the war on terrorism and “returning control over national and homeland security decisions to the executive and legislative branches.”

I don’t mean to single out the Washington Legal Foundation, a respected conservative research and litigation organization. It is hardly alone in its ritualized framing of a dichotomy between law and national security.

And that’s the point. That the courts — and the lawyers who bring cases to them — are a threat to the country is a trope that has penetrated deep into public consciousness. The typical accompanying warning against “Miranda rights for terrorists” resonates with the doom-saying of an earlier generation of conservatives to the effect that courts make it impossible to keep the streets safe from common criminals.

She's right, of course. Never in my lifetime, not even at the height of the Vietnam War and protest against it, has the notion of what this country is all about been so bitterly contested. I hold that we're about nothing if not the rule of law, and, at that, in not just the easy cases but the most difficult ones.

Superficially, one's hard put to explain the right wing's vociferous rejection of due process under the law for Guantanamo inmates, or, for that matter, accused criminals. The right protests, loudly, against government intrusion on individual rights as it asserts unconstitutional power. Their stance against legal rights for all, amongst the most important limitations on government power we have, contradicts that. And the Fourteenth Amendment, part of, er, the Constitution, explicitly demands due process of law for all 'persons'--not just for citizens, mind you.

The apparent inconsistency is easily explained by noting that the real bedrock of the right is the separation of virtuous, entitled Self from evil, parasitic Other, demanding rights for the former and denying them to the undeserving latter. Over and over again. Those seeing themselves as Self, and those wishing to be included amongst the Good and not the Evil, constitute the right, have no sympathy or empathy for others, and reject any responsibility themselves for solving our problems. They proceed to exclude the idea that even their interests can't be served in such a society, pragmatically and realistically, much less that it's the right thing to do to help others if you can.

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