War and the Courts

This is one of the best and most important articles I've read all year. Read it all the way through. Every word. Twice.

Our courts have long been activist, but only recently have they become imperialist. Activism can be reversed, but if we allow the judiciary to effectively eliminate the separation of powers with regard to the conduct of war - there will be no going back. We can stop this by electing presidents who will appoint Justices that understand and accept the constitutional limitations of their position.

Here's a sample:

...The Framers did not include federal judges as participants in our national defense. The judiciary was formed as a part of our government, to protect American citizens from violations of their liberties by their own elected representatives....They are not supposed to be a forum to empower non-Americans — particularly alien enemies of our people — to invalidate actions taken in our national defense.

Our defense against foreign enemies is a political matter, not a legal one. To put it bluntly, it is none of the judges’ business. It is for the people’s representatives to decide — with the president holding the preeminent role as commander-in-chief, subject to the capacity of Congress to remove the president by impeachment [or] to shut off funding for...missions of which it does not approve, and the capacity of the American people at election time to remove the president and/or members of Congress who go either too far or not far enough in safeguarding our nation.

The courts, by contrast, are not politically accountable to the American people. That is why judges were given no role in national security. Self-defense is the natural right of nations. Without it, there is no liberty. In our system — the system of a free, self-determining people — the political branches were given plenary power over our defense. The courts were given no power. That was intentional: It created an accountability nexus between the officials making national-defense decisions and the people whose lives hung in the balance.

If we do not return to that arrangement, we are not free and we cannot defend ourselves.
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We must face down the courts’ despotic reinterpretation of “separation of powers.” Government action is not illegitimate simply because it lacks the judicial imprimatur; judicial action is illegitimate if it intrudes into areas committed by the Constitution to the political branches or the states.
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Republicans should make clear that the president should not comply with judicial rulings issued under circumstances where Congress has divested the courts of jurisdiction. Regarding enemy combatants, Congress has so divested the courts in the Military Commissions Act. Congress’s control of federal court jurisdiction is the rule of law, and where the judges fail to live within that constitutional framework, their decisions should be ignored.

This is not a betrayal of what the Left calls “our values.” It is a reaffirmation of our principles. It will still be necessary to treat our captives humanely. But it will be for us through our accountable representatives, not for the courts, to draw the lines between national security and due process for the enemy. Unless we declare our national-security independence from unaccountable judges, we will no longer be governed by our Constitution, we will no longer control our own defense, and we will no longer be free.