Religions obviously predated the Constitution and were deliberately sheltered, by the Constitution, against interference from the Constitution. This was a mistake.

The Framers granted protection to organizations that are inherently “anti-” Constitution. For example Religions are free to exclude women, non-whites, and homosexuals from membership, from worship services, from employment, from leadership, etc. But other American institutions who do not have this protection from the Constitution cannot discriminate in these ways.

The practices of Religions clearly are “anti-Constitutional,” and this conflict will always exist, as a matter of permanent principle. I say “anti-” because Religions do not want, and will not accept, any requirement that says they cannot discriminate against certain groups of their fellow Americans. So we have a democracy surrounded by many theocracies and we have many citizens who claim dual citizenship, and we have many citizens who are unfairly discriminated against — and that discrimination, because of dual citizenship, has slopped over into democracy from the theocracies. Bigotry is permitted only under Holy Scripture, not under the Constitution.

On the other hand, it seems to me that Political Parties, are “extra-” Constitutional. They were not mentioned in the original Constitution and they grew up outside it. We are led to believe that they operate in accord with the principles of the Constitution, but I have never really believed that myself. One need only look at the Compromise of 1877 and the subsequent decades of Jim Crow laws to know that the Democrats ignored the Constitution year after terrible year. And of course, George W. Bush certainly is “anti-Constitution.”

So Mr. Bush, a religious man, was selected for office by five justices who were acting in an “anti-Constitutional” manner, and who proclaimed that precedent, the Supreme Court’s main reason for being, should not be taken from their decision, which makes the decision “extra-Constitutional” I suppose. Mr. Bush has used his religious beliefs to drive his policies and acted in many anti-Consitutional ways, yet he represents a Political Party that grew up as “extra-Constitutional.”

I don’t know what this all means. I often confuse myself when I visit here. But I do long for the day, should it ever come again, when the Constitution rules America. But that day is unlikely. Religions and Political Parties are not likely to change of their own free will, or of God’s will either (just read His book), and no one, not even God (because many Religions, in my view, are “extra-God”), can make them change.

ww – OK for the distinction concerning conservatives. I shouldn’t sic GWB on you in any case, as I am sure that you are your own brand.

I don’t agree with your coin metaphor; how about a chain? Facts and experience are abstracted and generalized into a rule or categorical observation. These inductive products, when motivated by sufficient need or want, become the basis of discussion for policy. Policy discussion bounces around among rule and policy suggestion and hypothetical outcomes of policy implementation, with the debate occasionally illustrated by facts and experiences.

Either way – coin or chain – the Constitution was instigated by experience, however much hypotheticals played a part in the debates. And SCOTUS works primarily from precedent. In fact their hypotheticals generally start from a specific citation of law or of prior legal decision.

As to the original article – Tim’s remark about the efficacy of the Nazi torture techniques obliterates Dershowitz’ argument. The Nazis were looking to make “examples”; accuracy was incidental. You may know that “we” occasionally dropped suspected Viet Cong from transport helicopters, until the remaining captives had something to say. You can probably remember how that worked out.

Tim’s snark at the end of his piece is nicely done, but I suggest that it masks the rage that we all should feel when elected representatives perform anti-Constitutional acts in our name. The Unitary President concept, as promulgated by the current administration, ignores the “prior constraint[s] on the power of government” and is anti-, not extra-, Constitutional.

I have no particular interest in spending time saying that “such-and-such isn’t a conservative.” (Although I think one is justified in raising one’s eyebrows at the claims of Andrew Sullivan.) It is more interesting–and empirical, forsooth–to consider the different varieties of conservatives, and the (creative) tensions among their views. Pres. Bush is one sort of conservative. His views and actions contribute to the definition of conservatism, but neither define the abstraction nor can be defined out of it.

If you want to keep your conservative creds, you should perhaps follow George Will’s lead, as he tries to insulate himself from neo-con failures. I read that others of the right-wing ‘community’ are now trying to label GW Bush as a liberal, after all. That might work for you, too.

Tim – would you mind if I cross-thread this piece to another blog?

Yes. I’ve often thought this.

Meanwhile, I find myself feeling troubled by the notion that the primary obligation of the executive (or government in general) is to “defend the nation” as opposed to the Constitution, or the people who make up “the nation.” And, what, exactly, is the “threat” to the nation, against which they must defend? Given that a “nation” is a political fiction, an expression of the collective values of the people who belong to it, it feels strange and creepy to have people claiming to “defend” it by arguing that they need not be bound by those collective values, that, in fact, they must kill the nation in order to save it.

I’m glad Hestal mentioned the Supreme Court–I’d wondered whether to bring that in. But, yes, note how Supreme Court procedure also consists very much of engaging in thought-experiments about hypotheticals, grilling lawyers on how the interpretation of a law would play out in any number of particular hypotheticals. Should one assume wildly different thought processes for constitution-makers and judges? Not so, I think. Both are considering how a consistent rule–law, or interpretation thereof–will play out in an infinity of unforseeable hyptheticals, and both are considering particular hypotheticals as part of the process by which they arrive at the universal law or interpretation.

Dershowitz’s “hypothetical” is very specific. Several things have to happen in a way that makes it possible, maybe, for some good to be done by using torture. But analyzing the specifics shows that Dershowitz is nuts. By assigning probabilities to each of the circumstances that would give rise to such a situation shows that it ain’t ever gonna happen.

The Constitution, on the other hand, offers no specific “hypotheticals.” This fact keeps the Supreme Court in business. The Constitution was deliberately general because it was impossible for the few Framers to develop a laundry list of specific “hypotheticals” that they wanted to guard against. In fact, in our early history, the Declaration of Independence is the only document that has such a list, and the common remedy for them was independence and its midwife, war.

So Dershowits begins at the specific “hypothetical” much like a movie plot. The Constitution starts at a very general and very high level and leaves the specifics to us, and guys like Dershowitz.

As an old math teacher I can say that this kind of confusion is common. There is a difference, and it ain’t hypothetical, between proceeding from the general to the specific and starting with a specific and trying to generalize it. It can be done and mathematicians do it all the time, but they are not playing political “gotcha” while they work.