Comments | kunstler89: a constitutional contradiction

kunstler89

a constitutional contradiction

Oct 09, 2006 10:00

Consider the following quotes.U.S. Constitution, Art. I sec. 9.
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. [emphasis added]

Justice Antonin Scalia, dissenting in Hamdi v. Rumsfeld, 542 U.S. 507 (2004).Many think it not only inevitable but ( Read more... )

scotus, usa, bad news, war/peace, law, torture

Comments 3

dogberryjr October 9 2006, 17:13:33 UTC

I am certain that this will be reviewed by the Supreme Court very soon. I'll be interested to see how they sort it out. Anyone taking bets on 5-4??

I have to say, though, that I am happy to keep the fighting of wars out of the judiciary.

kunstler89 October 9 2006, 17:17:26 UTC

Yeah, if you read all of Scalia's dissent, he's happy to keep wars out of the judiciary too. I'm hard pressed to disagree with him (a rare sight, that).

The typical prediction this year is 5-4 with Kennedy as the swinger, but the interesting conflict will be between Scalia the Strict Constructionist and Scalia the Unitary Executive Activist. (Roberts and Alito are firmly in the latter camp, as is Thomas: check out his dissent in Hamdi, in which he essentially copied/pasted the White House talking points on terror detentions.)

kunstler89 October 11 2006, 20:55:41 UTC

I am happy to keep the fighting of wars out of the judiciary.

I guess I should clarify my position: Keeping war-related decisions out of the judiciary is a non-issue, despite hawkish talking points to the contrary. The Constitution's habeas provision doesn't dictate how wars should be fought. Rather, it renders inviolate the 800-year-old "Great Writ", except in two cases: rebellion and invasion. Whether Congress validly suspended habeas corpus pursuant to the constitutional conditions is most definitely a question for the judiciary, per Marbury v. Madison.

One other issue to watch for: the argument that the MCA only suspends habeas for aliens (Scalia was very careful in limiting his discussion in Hamdi to citizens' habeas rights). But this is neither here nor there. The Constitution doesn't limit the habeas right to American citizens or even "The People"; it just says that Congress may not suspend the writ, period. As I read it, it's a human rights issue, not an Americans' rights issue. But that's how I generally read the ( ... )