THEY AREN'T "WE" (via Mike Daley):

The new juristocracy (Andrew C. McCarthy, September 2006, New Criterion)

From the Founding right up until the still-quaking bombshell of Hamdan v. Rumsfeld, issued at the end of the Supreme Court’s term in late June, the primary imperative of national government was to protect the security of the governed from hostile outsiders. The Framers, however, had an ingenious gloss on this venerable first principle. In the great American experiment in republican democracy, this power of self-preservation—what Justice Felix Frankfurter, in another era of grave peril, called “the most pervasive aspect of sovereignty”—would repose only in those political actors directly accountable to the people whose lives hung in the balance.

The arrangement made exquisite sense. On the one hand, if the public’s representatives were insufficiently attentive to national security, those with the most at stake could vote them out of office. On the other hand, if public officials failed to give due deference to the civil rights that guarantee our freedom, Americans, lovers of liberty, could show them the door. The epicenter of this dynamic would be the President of the United States, the only public official (besides the Vice President) elected by, and accountable to, all of the people.

Judges? They would have no role in national security. They, after all, are politically unaccountable. This is neither to disparage them nor suggest they are irresponsible, much less unpatriotic. They are unaccountable to the people because they are accountable only to the law. And not some universal law. They are custodians of the people’s laws, those governing the domestic body politic.

Those laws quite intentionally handcuff government for the sake of promoting freedom. They thus have no place in the international arena, a state of nature in which nations, insurgent militias, and, now, transnational terrorist networks all claim the right to use force. “The circumstances that endanger the safety of nations are infinite,” Hamilton observed in The Federalist (No. 23). “[F]or this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed.”

In stark contrast, within the domestic realm, government would have a comparative monopoly on the legitimate use of force. Security would not be as pressing a concern. Within this fortress, judicial courts could guarantee Americans freedom from oppressive action by their government. They could preserve the rule of law indispensable for the American body politic to flourish. It was for those reasons—in abeyance of mortal danger—that the nation could afford to insulate them from popular passions, whims, and safety concerns.

However patently central it is to a good society, the judicial function remains largely irrelevant to the international order.

When folks start to seriously biff the Constitution it is almost always because they forget to refer to its ends in arguing about the means it lays out. You don't need to be a legal scholar to grasp that the text doesn't extend to outsiders.

Posted by Orrin Judd at September 17, 2006 11:24 PM