Did anyone else notice the way the media raised such a  fuss over the Supreme Court's invalidation of the constitutional separation of powers or the way it arrogated to itself the power to invalidate explicit legal limits on judicial review? And was I the only one who was surprised at the way the ACLU protested outside the court building against the destruction of the protections built into the Constitution?

Oh, wait, none of that happened.

In fact, the press and the civil rights establishment treated the Boumedine ruling as a triumph. Which is a bit odd, as these same people speak of listening to international phone calls with known terrorists as a threat to our freedoms and call signing statements a step toward dictatorship. Yet these people ever so vigilant in protecting our rights failed to notice that the Supreme Court took the first step toward judicial tyranny.

Now, I have already said everything I intend to say on the substantive contents of that ruling. (Unless something new should arise.) But, dangerous as I think that ruling is, it is nothing compared to the danger posed by the court's assertion of jurisdiction in this case.

Well, let us look at supposed "threats" that the press trumpets for comparison. For example, signing statements. For some reason these make the press go into fits. Yet they are nothing, and I mean that literally. The executive has always had the ability to interpret laws and decide how to enforce them. The signing statement is nothing more than giving that discretionary power a concrete form. It is not binding on any future executives, it isn't even binding on the current executive should he change his mind. All it is is a warning of how the law will likely be interpreted. If anything it is a limit on the executive, which now feels a need to abide by the statement, where in the past they could change their interpretation at will. What it clearly is not is a new executive power, or a transgression into another branch's authority.

Or the wiretapping of international calls where one party is a known terrorist, which the press calls for some reason "domestic spying". First of all, it is completely arguable whether wiretapping violates the fifth amendment at all, even without a warrant. Our courts have so ruled, but there is no logical necessity there, and we could just as easily interpret the Constitution to mean the phone lines could be tapped at will by anyone, and our society would not be substantially less free*.But even if we allow that wiretaps must be prevented without judicial review, the fact remains that the surveillance program we have in place DOES require a warrant, it simply allows warrants to be obtained after the fact, as the demands of intelligence can require action at a pace unsuited to judicial review and deliberation.

So, a wiretap program, with very strict limits, and requiring eventual judicial review is seen as a violation of rights. And so is the practice of adding an explicit statement of how a law will be enforced, where previously there was none is also seen as an expansion of power beyond traditional limits. It seems a bit strange to me, perhaps a bit excessive, but if the press and civil rights groups are concerned with such minor transgressions (if they are transgressions at all), surely they would view Boumedine with the same overly sensitive attention.

So, how does Boumedine compare to these? Surely the lack of reaction from these watchdogs means there is no problem with the ruling, correct?

Unfortunately, no. Boumedine, unlike "domestic spying" and signing statements, really does represent an unconstitutional expansion of power. Article III Section 2of the constitution says, quite explicitly that the court's scope shall be limited to a few specific topics and serving as an appellate court in other matters, except when excluded by congress. The problem is that congress quite explicitly removed from consideration the very topic on which the court rules in Boumedine.

The court tried to excuse its blatant violation of the Constitution by claiming that the Constitution prevents congress from suspending the right to habeas corpus, which they argue means the Supreme Court must have review powers in this case. However, that is a specious argument. The framers did not endow the court with the right to review for constitutionality at all, but they did explicitly allow congress to remove specified matters from court appellate jurisdiction. Which means that the court is using a right not granted in the Constitution to overrule a limitation explicitly mentioned. It makes no sense and is the weakest of arguments.

Which makes it seem odd that the civil rights watchdogs in the media and elsewhere are not decrying this decision. They would complain if Bush claimed the right to make laws, or immunity to impeachment. They even whined when congress tried to exclude laws from judicial review, though the right is explicitly granted to them, so why are they not upset that the court has exempted itself from a constitutionally mandated check on their powers**?

Some will say that it is because the court's actions are not a threat to personal freedom the way Bush's signing statements or wiretapping is. But that is a remarkably short sighted view.

For years many have been warning about judicial activism. One of their arguments is, rightly, that by allowing the courts to read new meanings into laws or to invent rights not explicitly granted in the Constitution, the courts are essentially arrogating to themselves the ability to legislate. Nor is this unprecedented. By effectively destroying the right to contract, the courts moved most individual business interactions into the realm of torts, making the courts, rather than individuals, or regulators, the final arbiters of all business matters. Similarly, by finding new rights or reading new meanings into laws, the courts were arrogating to themselves the power traditionally reserved for lawmakers.

But there was always one final defense, the courts were still limited by the lawmakers, who could rewrite laws with sufficient specificity to avoid new meanings. And while the legislators could not write laws to invalidate the newly minted rights, the congress still had the ability to deny jurisdiction to the courts in certain matter, leaving a last ditch means to escape the worst of the invented rights, at least on the federal level***.

Now that the Supreme Court has said that they need not listen to congress if a "right" is threatened, they have effectively closed that back door. Now there is no escape from judicially manufactured rights short of a constitutional amendment.

That is a massive power grab. And yet the defenders of our rights seem to have not even noticed.

I hate to suggest it, but it appears the media and the "rights" establishment are more interested in partisan politics than rights. Making a bad decision that harms the Bush administration unworthy of notice, while administration policies which do not realistically threaten rights at all are treated as the gravest threat ever.

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* I know I will make many upset with this statement, but privacy is not necessary for freedom. One could easily imagine a society where all communications were required to be made in public and cultural norms allowed anyone to inspect the writings of another at will, and yet where the individuals were completely free. I will admit that, like most, I do prefer a society which respects privacy, but there is no logical necessity for privacy to exist for a free society. I shall write more on this later, as it is a common mistake.

** Not to mention the horror with which many of these same people view Jackson's historical response to the court challenging them to enforce their decision. They are upset by Jackson's effort to exempt himself from the court's authority, but have no concerns over the court's attempt to exempt itself from congressional authority? It makes no sense to me.

*** Different states have varying rules concerning court jurisdictions. But most state legislatures do not have a power comparable to that of congress, leaving most states at the mercy of judicial activists in their highest courts.