John Yoo has his apologia for fascism up at the New York Times. As a substantive critique of his position, I think little must be added to Glenn Greenwald's evisceration, but I found a comment at the Volokh Conspiracy that I think is worthy of discussion:
Perception doth not reality make. For an easy example, say Congress passes a law that strips the President as the commander in chief of the military and SCOTUS somehow upholds it. Can the President only acquiesce?
The answer, of course, is "YES! A thousand times yes. That's what a commitment to procedural justice means."The President may either engage in legal remedy for the constitutional process, or forfeit his or her legal authority (and right to command the military anyway) by engaging in rebellion. As Lincoln said, you can either engage in your legal right to amend the Constitution or you can engage in your human right to overthrow it. What you can't do is try to overthrow the government and call it legal. Procedural justice demands that we don't ditch the procedures because we think they got it wrong once. Consider the fact that it is almost certainly the case George W. Bush in 2000 did not represent the general will: Al Gore clearly did. And in fact, we can go pretty far down the procedural list: George W. Bush did not win a majority of possible votes, actual registered voters, actual registered voters who really voted November 2000, or the majority of Floridians who actually voted in 2006. But the fact of the matter is that we have--generally fair--deliberative procedures in effect that conferred legitimacy upon Dubya: the various legal procedures by which various counts and recounts are challenged and accepted. The fact that they got it wrong, obviously so, doesn't mean that the procedures lose their legitimacy.
You could make a similar claim with a jury: we don't throw people in jail we know are guilty if the jury screws up and acquits them. The naive view of procedural justice is that it is the poor relation to substantive justice. That is, procedural justice is only justified by its tendency to produce substantive justice. But that can't be right because we don't reject the results of the procedure that we know aren't substantively just. Of course, we don't want to say that procedural results are all that matter. The interesting question is how substantive and procedural justice are related: is it true, as Plato says, that a society with perfect procedural justice will be perfectly just substantively?
"John Marshall has made his decision, now let him enforce it."
--Andrew Jackson
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