Tuesday, July 08, 2008

Turkey's "Military"

Last year, I wrote a post noting (through Nate Oman) the parallels between Turkey's military and a "supreme court" as understood stateside. The military in Turkey views itself as the guardian of the nation's core constitutional values, most namely secularism, and has not been shy about launching coups against democratically elected governments when they, in the military's estimation, stray from these premises.

Now Rick Mills argues that Turkey's Supreme Court might be stepping into the military's shoes, preparing to launch what effectively is a coup of their own by ruling that the governing party of Turkey (the AKP) is unconstitutional (again, for being insufficiently secular).

Mills notes how this parallels and diverges with the conservative critique of a "politicized", activist judiciary. Several conservative commentators have analogized politically motivated judicial review to a military coup (most namely Robert Bork), saying in fact that there is no difference, and Mills says it could provide fodder for their claims. He also says that it might, by taking the claim seriously, in fact show off the very real differences between judicial and military checks. The ones he gives are transparancy, general lack of violence, ability to present arguments, and ability for the ruling elites to express dissent from overreaches. I gave some of my own in the year-ago post: obedience to court rulings, as opposed to military fiat, demonstrates political evolution of a state towards accepting rule of law (admittedly this doesn't work as well for politically motivated judgments).

But I'd argue that the Turkish scenario presents a graver indictment of Bork's jurisprudence than Mills lets on -- namely, that from Bork's standpoint the ruling banning the AKP might be plain right.

Originalism has always been pretty well tied to the Roman maxim "Let justice be done though the heavens fall"; otherwise known as "the law is the law, and damn the consequences." The Turkish judiciary, as Mills notes, is avowedly Kemalist -- Kemal being the founder of modern Turkey and the framer of its values. They certainly see themselves as implementing the Turkish founder's rules on how Turkey should, constitutionally speaking, be organized. The fact that in this case the ruling would effectively amount to a coup is immaterial, or should be, to Bork. Yet it is impossible to describe this as a "good" ruling -- from a democratic standpoint, from a liberal standpoint, from a rule of law standpoint, from any standpoint.

The critique is simple (originalism sometimes mandates catastrophically bad results), but effective. If Bork was on the Turkish Supreme Court, he may well have been obligated to join the coup.

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