Justice is Finite
I'm afraid Mr. Kolker is right. All existents, including the government, are by their nature finite and limited. Government cannot possibly establish "absolute" justice any more than man can achieve "absolute" certainty. One purpose of the Constitution is to delimit the finite boundaries of our government. Justice like certainty is contextual and limited.
No government has infinite resources. The jurisdiction of any government must be finite in both time and space. This is the reason for a statute of limitations and for the concept of jurisdiction itself. The Constitution does not and could not establish "absolute" rights. It establishes the civil rights of citizens and persons under its jurisdiction. Not all persons have the actual rights of citizens. No Tibetan residing in Lhasa can sue the government of China in a U.S. court - unless his actions somehow fall within the jurisdiction of the US. (See below.) Were this not true, there would be an infinite burden placed upon the US government to act as an arbiter in all lawsuits wherever and whenever. We cannot revisit the past indefinitely. We cannot right every wrong. All cases must eventually be settled, this is why we have a Supreme Court, and this is why we have final appeals. In orrder to achieve any justice it must be accepted that some justice may not be achieved. It is an absurd abuse of the legal system to try to adjudicate such things as the Nazi Holocaust. Were the parties subject to the jurisdiction at the time of the holocaust? Were they paying taxes? How does the plausible claim of a crime, far away and in the past, outside the reach of US authority, place a burden upon the US taxpayer to play avenging angel? Such matters as the Holocaust and the notion of suing companies for slavery are legal absurdities that continue only because of the emotional nature of the issues involved. Was an injustice committed? Undeniably. Can government redress it? No. People would laugh if you tried to sue England and the Catholic Church (okay, maybe not) for its treatment of Joan of Arc - before the discovery of America.
Many Objectivists and especially libertarians have a notion that because they can frame an argument that something is manifestly unjust that their possession of this argument thereby establishes a real-world claim on the government to act. But all government is established by individuals, and all government must be paid for. Your having an argument that some injustice has occurred does not in itself place an unlimited monetary burden on any individual or group of individuals such as the state.
Finally, the Constitution confirms what Mr. Kolker has said:
Artcle III. Section 1.
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish....
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The enumeration of jurisdictions in the first paragraph indicates that jurisdiction is limited. Otherwise, there would be no need to enumerate the cases to which judicial power shall extend. Likewise, in the second paragraph, Congress has the power to make regulations and exceptions to this power. All human action is limited and fallible, just as all existents are finite.
The government cannot establish by fiat what men cannot accomplish in fact.
It is finite, limited and fallible as well. It is proper for us to establish all such rules as tend towards establishing justice. This is why we have the protection of due process. It is proper for the military to be regulated in how it tries and treats combatants. The Constitution addresses this as well:
Article I. Section 8.
The Congress shall have Power To...
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water...
The question of the treatment of enemy combatants is not a new one. It is not unvisited by the Constitution nor unsettled by precedent and law. By using the power to make war without legally declaring war the congress and the executive branches have muddied the issues. By refusing to declare war, our enemies can pretend that the issues involved are civil or are at question. The matters are not at question, only the advisability of waging war without a declaration is.
(Edited by Ted Keer on 7/08, 2:39pm)