Thursday, June 12, 2008

Habeas Corpus - A Victory For Judicial Conservatism

Like mythago, I can hardly wait to hear how the political right reinvents the proposed judicial activism of the dissenting justices into conservatism, and the majority's respect for the Constitution as judicial activism. It all seems to boil down into a giant, "How dare judges question the unlimited power the Constitution grants the king unitary executive!"

You know what? When you intentionally disregard the text of the Constitution, two centuries of historic practice, and two centuries of jurisprudence in order to try to create an entirely new system by which you can detain and try "enemy combatants", you shouldn't be too surprised when the courts occasionally take issue. Giving all due respect to Scalia's desire for deference to the Bush Administration's interpretation of Johnson v. Eisentrager, who but a judicial activist would argue that the Executive's interpretation of a judicial interpretation of the Constitution should take precedence over the Constitution itself, let alone that it should preclude the Court from clarifying its own prior opinion?

I take issue with the Chicken Little hysteria of Scalia's dissent. The sky isn't falling. The nation will survive. And if the best framework he can provide for his dissent is a dramatic pounding of the table, it's reasonable to infer that not even he thinks much of his legal argument.


  1. Scalia has wedged himself firmly into the "I'm in for life, waddyagonnadoaboudit?" mindset. Nothing sets off a tantrum like not being agreed with.

    And yes, unitary executive = secular king. You almost expect John Yoo to recommend that people afflicted with scrofula touch the President's cufflinks.

  2. George Will takes McCain to task for his statements about the case. I would be far more impressed with Will, though, if he would occasionally direct his scorn at a politician he likes.


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