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Thursday, September 07, 2006

An Echo of my Past

I'm just now getting around to posting my reactions to a Molly Ivins column from late August. She's discussing the opinion by federal district court judge Anna Diggs Taylor, holding the NSA warrantless surveillance program unconstitutional. Ivins notes that many "soi-disant" (self-styled -- I had to look it up) legal scholors are complaining that Judge Taylor's opinion was not well written. (More on that in a moment.) Her response: "Nevertheless, warrantless spying is illegal. Did it ever occur to these literary critics that Taylor has a lay-down hand? The National Security Agency program is flat unconstitutional . . . ."

Ivins doesn't appear to be troubled by even a hint of doubt about what the law is. She betrays no sign of knowing that the case involved -- and should have turned on -- several very complicated legal issues. Assuming that she's not being disingenuous, I think I know where she's coming from.

I grew up in the ACLU the way Catholics grow up Catholic. The creed I absorbed was quite straightforward. I wouldn't have stated, in so many words, that civil liberties were simple and absolute, because those terms would have suggested the possibility of limits and complexities. (Disclaimer: I'm not saying that ACLU's lawyers held or hold such views. I can't say the extent to which my parents, extremely intelligent laypeople and first generation Americans, saw the shades of gray that I didn't even imagine.)

It was a significant shock to get to law school, take constitutional law, and discover that the case law of the U.S. Supreme Court did not always uphold what I believed to be our constitutional rights. I wish I could remember more details about that encounter with cognitive dissonance. I'm not sure how Molly Ivins has protected herself against similar disorienting experiences -- but it appears she has managed it.

As for Judge Taylor's opinion: here are links to a few comments from the "soi-disant legal scholars", otherwise known as law professors whose widely read blogs regularly include technical legal commentary.

--Prof. Ann Althouse's op-ed in the New York Times;
--an August 17, 2006 post by Prof. Eugene Volokh;
--Prof. Orin Kerr's August 18, 2006 post about the opinion, the criticism of the opinion, the criticism of the criticism, and how the opinion's defenders are unwittingly echoing the arguments of President Bush's supporters.

UPDATE: see more recent post, "Caveat re Constitutional Law".

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