The ever cranky and petulant Scott Greenfield posted an interesting bit. Probably the most liberal/libertarian thing I've read in a while. Those Volokh ninnies would never come close to this:
"In his dissent in Terminiello v. Chicago, Justice Robert Jackson crafted a phrase that embodies the subjugation of rights to transient fear.
This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.
That the Constitution is not a suicide pact flows from this, and at any given moment in history, the outcome of a decision may seem to be compelled by “a little practical wisdom,” meaning that we first must protect ourselves from who or what seems most threatening.
Nino, on the other hand, openly recognizes that this leads the law into black holes of doctrinal failure and the systemic violation of constitutional rights, but that the Court is only willing or capable of seeing that clearly from a distance, once the threat of war has passed.
Nino warns that we would be kidding ourselves not to realize that this will happen, and will happen over and over as the Court perceives our country to be threatened by harm, at War as the maxim goes, and crafts its decisions so that honoring the Bill of Rights doesn’t result in our suicide. Still, Nino doesn’t seem troubled by this. If anything, he appears to offer it in explanation, that sound doctrine and faithful adherence to the Constitution will invariably take a back seat to whatever war we’re fighting at the moment.
This explains a lot about our jurisprudence and the Supreme Court’s rulings. For those who tried desperately to persuade the Court that they are on the wrong side of the Constitution and history, at least they now understand why reason, logic and the Constitution never stood a chance."
This explains a lot about people's dislike for the ACLU and criminal defense attorneys. The cold hard reality isn't that we're perpetually at war because we like fighting but because unless you're willing to bend or break, conflict is inevitable. And it's particularly silly to hear an attorney, who trades in conflict, claim that everyone else should try better to get along. It's also a rather wrong-headed view of history, myopically focusing on the modern world and only from the perspective of the richest and most comfortable people on earth.
The true difference between our country and those of the first world and others is our obedience is to law, while other countries obey a party or an individual. Those situations lack stability. What we call liberty is more of a spiritual mindset. The Constitution and the law are an outpouring of who we are as a people. When our mindset changes, those things begin to change. If we choose to ignore them, to throw away our history, we may do that. We are not the slaves of our law, merely obedient to it as long as we choose to be. Situations can arise where the law must change immediately and forcefully. That has happened at least twice in our country's history, at the time when the 14th amendment was adopted and then again when FDR converted our nation into one where the balance of power sat most forcefully at the federal level.
The kind of freedom the libertarian yearns for hasn't really existed for almost a century now, though you can still find it on some islands out in the pacific where children can still get a job chained up in a factory. But even there, you'll still never get absolute freedom of speech, because while the government may have no power, plenty of individuals do, and will silence you.
At heart, when we whine and protest about the constitution, as Americans, we're really just pronouncing how our personal values believe a particular situation from our perspective should be treated, and trying to point to the most revered power we have, the only legitimate power, as reason why others should agree and acquiesce to our view. If they don't, then we have to decide, do we bend? Or do we fight?
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