Article Request, and Extra-legal Cases

Daniel Hoffman guayiya at bellsouth.net
Wed Oct 5 12:40:15 PDT 2011


How about Bush v. Gore?

--- On Tue, 10/4/11, Robert Sheridan <rs at robertsheridan.com> wrote:


From: Robert Sheridan <rs at robertsheridan.com>
Subject: Re: Article Request, and Extra-legal Cases
To: "Mark S Kende" <mark.kende at drake.edu>
Cc: "'conlawprof at lists.ucla.edu'" <conlawprof at lists.ucla.edu>
Date: Tuesday, October 4, 2011, 3:09 PM


The term 'extra-legal' certainly seems to have an element of mystery to it, like someone citing an 'unwritten law' to justify a proposition, which I found, in law school when I was wrestling with the all-too-many written ones, to be more than a little disconcerting.  


Then I came across the notion that in Texas it was an unwritten law, allegedly, that a man who found his wife in bed with another man was justified in shooting him.   Dunno about her; she'd better get out of the way, I suppose.  Maybe she was included, and he protected, as collaterall damage.


Then of course, Tocqueville famously said something to the effect that in America all social problems eventually turn into legal problems decided by the courts, or the Court.


And finally, there's something that might well be called the Cheney Doctrine, that is, the use of 'enhanced interrogation techniques' that while most resembling torture, do not violate Constitutional dictates against coerced or involuntary admissions and confessions.  Nor do the gasping statements violate, by some miracle, the Geneva Conventions, a set of treaties to which we are party.


This must be based on the Sacrament of Manifest Destiny, our underlying, albeit extra-legal constitutional doctrine which holds that we in the holy mother church of the USA can take your land and don't have to thank or pay you for it, the Fifth Amendment notwithstanding, because God is on our side.  We could emboss this legend, not to say myth, on our military belt buckles, as translated from the original German, of course.


So, this term 'extra-legal,' what is it?


A euphemism for "illegal as hell?"


Or "Shoot first, come up with the missing legal doctrine later," in order to paper over the criminality?"


Perhaps this is the difficulty posed by the recent Ahmad al-Awlaki case, where we loose a Hellfire missile on a known al Qaeda preacher  in Yemen, who inspires others to attack us, burning him to a crisp.  Well, al Qaeda declared war on us and has committed so many atrocities starting with 9-11, so no problem, right?  Making war, aiding and abetting, treason, you name it.  Good news.  


BUT it turns out that this enemy is a U.S. citizen.  


Does this make any difference?


Should he have been arrested, prosecuted and then executed in a more civilized, less sudden manner, such as by gentle lethal injection while strapped to a gurney in the confines of a prison with witnesses inside and demonstrators and news cameras outside?


Or is this an example of an extra-legal take-out awaiting the necessary blessing of legal rubric to make it nice and legal-like?  No doubt it will serve as the precedent for future Hellfire missile attacks.  Don't look for it in the case reports because, well, there was no appeal...  Perhaps on each Hellfire missile we could print a citation:  See U.S. v. Ahmad al-Awlaki.


Lincoln's observation comes to mind regarding when he justified the questionable military detention of southern sympathizer Clement Vallandigham w/o benefit of habeas corpus for speaking out against the war and urging Northern soldiers to desert.  Lincoln reasoned that he was required on a constant basis to review the military death warrants of young, frightened, deserting soldiers with whom he empathized, feeling that he'd be tempted to do the same were he in their shoes.  


"Am I to execute the poor soldier boy while allowing the person who incited him to go free?" was the idea, if not the actual quote (vagaries of memory, again).


Suppose al-Awlaki had been located traveling from NY to DC; okay to unleash the Hellfire, say around Baltimore?  Camden?  Ft. Lee?


Forget the collateral damage.  If a known terrorist is foolish enough to surround himself with family, friends, and other terrorists, the Hellfire Doctrine permits us to send these unnamed others along for the eternal ride to glory as well.  A bit extra-legal perhaps, but coming up with justifying legal doctrine is our specialty.  Let Allah sort them out, that sort of thing.


Then it's no longer extra-legal is it?


That's the beauty of the Extra Legal Doctrine; it's only temporary, meaning illegal, one supposes, until we fix it, nunc pro illegal tunc.


It has possibilities; I see it sticking around because it's so useful between here and there.


rs

















On Oct 4, 2011, at 10:56 AM, Mark S Kende wrote:




Sean:
  Thanks for your note.  My query deliberately tried to leave the definition of “extra-legal” open for folks to fill in with their own notions since the term is capable of multiple meanings.  Part of what I’m trying to figure out is what to do with that term, and what cases it might apply to.  I appreciate your suggestions.  Best, Mark
 


From: Sean Wilson [mailto:whoooo26505 at yahoo.com] 
Sent: Tuesday, October 04, 2011 12:34 PM
To: Mark S Kende; 'conlawprof at lists.ucla.edu'
Subject: Re: Article Request, and Extra-legal Cases
 


... I think it would be beneficial to ask at the outset what you mean by "extra legal." You'll only end up with theories as to what that is, in the context that you ask the question. A better question, it seems, would be to simply ask this: what decisions most egregiously breach the things the Constitution could be TAKEN to say, without a sufficient cultural or political warrant (explanation).  In this sense, your target is not a fixed one. What constitutes "legal" are all those potential arrangements that could be had for constitutional text. Another question to ask which is much better is: among the chosen arrangements today that are "legal,"  how could they be much much different (and better), yet still remain "legal." This asks, in essence, how could we more creatively arrange the constitution to best suit American culture?  

 

Regards and thanks.

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Personal Website: http://seanwilson.org
SSRN papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=596860
Wittgenstein Discussion: http://seanwilson.org/wittgenstein.discussion.html
 





From: Mark S Kende <mark.kende at drake.edu>
To: "'conlawprof at lists.ucla.edu'" <conlawprof at lists.ucla.edu>
Sent: Tuesday, October 4, 2011 1:08 PM
Subject: RE: Article Request, and Extra-legal Cases



I have two questions for the list.  Feel free to reply privately.

 

1.I recently saw an SSRN paper mentioned that dealt with the fact that the House of Representatives now requires its members to assert the constitutional foundations for any legislation being introduced.  I believe the paper assesses the legal significance of this House rule.  Does anyone know the SSRN or other cite for this paper?

 

2.Which U.S. Supreme Court cases, if any, do folks think should or could be considered “extra-legal” in some sense?  I don’t mean cases that people really dislike, though there may be some overlap.  I also would prefer to stay away from cases that have been overturned by the Court itself as that seems too easy.  You can define that term as you wish otherwise.  (Perhaps one answer some folks would have is no cases, as the Court’s decisions can’t be “extra-legal.”)  Korematsu occurred to me as a possibility (though I can see the counter-arguments) but I would love to hear what others think.

 

Thanks.  Mark

 

Professor Mark Kende

James Madison Chair in Constitutional Law

Director, Drake University Constitutional Law Center

2507 University Ave., Des Moines, IA 50311

515-271-3354, 515-271-1858 (fax)

mark.kende at drake.edu

 

Author, Constitutional Rights in Two Worlds:  South Africa and the United States (Cambridge Univ. 2009), http://www.amazon.com/Constitutional-Rights-Two-Worlds-Africa/dp/product-description/0521171768

SSRN sample papers:  http://ssrn.com/author=339761

Center Web Site:  http://www.law.drake.edu/academics/conLaw/ 

 


 

_______________________________________________
To post, send message to Conlawprof at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others._______________________________________________
To post, send message to Conlawprof at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.

-----Inline Attachment Follows-----


_______________________________________________
To post, send message to Conlawprof at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.ucla.edu/pipermail/conlawprof/attachments/20111005/78d75c3d/attachment.html>


More information about the Conlawprof mailing list