I can't read past the first page to the Magazine article. The is the wrong forum to show strong contempt for academics, but good God, are these people really inacapable of understanding that a constitution creates and defines a government?

And that when the Constitution says that a treaty is the law of the land, a treaty is the law, even if that means that there might be limits on what parties to the treaty can do?

Oh, I forgot: the point of treaties is to limit the other people, while not limiting ourselves at all.

One view, closely associated with the Bush administration, begins with the observation that law, in the age of modern liberal democracy, derives its legitimacy from being enacted by elected representatives of the people. From this standpoint, the Constitution is seen as facing inward, toward the Americans who made it, toward their rights and their security.

I know arguments filtered through the newspaper are often garbled beyond recognition, but this strikes me as so dumb there can't be good reasoning behind it.

The argument ignores the fact that the constitution lists *restrictions* on government power. When you say "governments are legitimate to the extent that they are elected" you are talking about the extent that the government is *allowed* to exercise power. Governments may exercise power over the people who elected them to the extent mandated in the constitution. It doesn't follow at all from this that governments have unlimited power over those who did not elect them.

Here, let me natter on.

The argument given is a straightforward case of denying the antecedent.

1. If the government is elected by the people, then it has power over those people within the bounds of the constitution.

2. The US government was not elected by foreigners

3. Therefore the government has unlimited power over them.

Hey Charley, are you back to being Charley on this blog, or is that an oversight?

Not an oversight.

I like to ask people if they think we could haul all the prisoners in Gitmo down to Madagascar and sell them into slavery. Well, why not?

And if they don't have due process rights, why then can't the district courts decide the habeas claims that the Supreme Court says they can bring by a coin toss?

(The government is still denying that Gitmo prisoners has DP rights, as recently as last Thursday's argument in Kiyemba v. Bush).

(This is not procrastination, but preparation: I'm on a panel Thursday with a pro-military law professor and a federal judge. In White Plains. My current plan is to drink heavily in NYC thereafter.)

we could haul all the prisoners in Gitmo down to Madagascar and sell them into slavery.

That's the easy question. The harder part is what we could do with the money. Could we use it to ransom hostages from Iran? To support freedom fighters in Canada? Donate it to James Dobson? And would Madagascar be able to get jurisdiction in the World Court for its claim against us for the unpaid sales taxes due on the transfer of the slaves?

Further to 7 -- assistance with the NYC part of the thing is welcome.

The Feldman article is truly dickish. Perhaps its importing an academic norm into a non-academic setting, but I really think he needs to talk about particular people's views, rather than the generic liberal and conservative views, since if he had to talk about particular people he wouldn't be able to just make up views and attribute them to the two sides.

Also, the part where he says liberals have gotten shrill about this debate and then, to illustrate this point, notes that liberals have accused John Yoo of being a war criminal makes me want to throttle him.