In reading through the Hamdan decision, there is a point that is made both subtly and not so subtly in the plurality ruling — both in Justice Stevens’ opinion, and also in Justice Kennedy’s concurrence. You can find a clear distillation of this in the Stevens opinion on or about pages 46-47: (PDF)
When, however, neither the elements of the offense nor the range of permissible punishments is defined by statute or treaty, the precedent must be plain and unambiguous. To demand any less would be to risk concentrating in military hands a degree of adjudicative and punitive powers in excess of that contemplated either by statues or by the Constitution….
The Federalist No. 47, p. 324 (J. Cooke ed. 1961)(J. Madison)("The accumulation of all powers legislative, executive and judiciary in the same hands…may justly be pronounced the very definition of tyranny…")
As someone who spent a good deal of her academic life studying American political theory and history, as well as political theory and the divergence of conservative and liberal political thought, it intrigues me how flipped the actions of the various factions in American government have become at this point in our history.
How is it that so many "conservatives" have now become the advocates for an activist judiciary which would go well beyond settled legal precedents and historical anecdotal and documentary evidence to validate extrajudicial and extralegal behavior? In reading Justice Thomas’ dissent, that thought kept going through my mind over and over. Guess that whole "strict interpretation" argument goes right out the window when you can’t use it to get your way.
What I find more disturbing, however, is that more conservative attorneys and legal scholars have not been standing up and saying that these actions by the Bush Administration are just plain wrong — under legal precedent as well as under moral and ethical questions.
Bruce Fein, former Assistant Attorney General in the Reagan Administration (who is a VERY conservative scholar, under any interpretation of his philosophy), for one more prominant example, has been an outspoken critic of the Bush Administration on the grounds of opposition to the establishment of an Imperial Presidency. This is philosophically consistent with my understanding of conservative principles from Locke forward, and I, frankly, have an enormous amount of difficulty reconciling the greater "wingnut" arguments regarding Administration actions and the justifications therefor beyond the obvious concern for that grasping, greedy toehold on power to be maintained at any cost.
We’ve talked a lot about the historical and philosphical issues surrouding the separation of powers and the need for adequate oversight by the judicial and congressional branches of government. But a component that we have not discussed nearly enough is the need for pressure from outside the government to force such congressional oversight through overwhelming public pressure.
Following the enormous implications in the Hamdan decision — and the threat that it poses politically to the Bush Administration’s entire house of cards with no adequate, realistic legal foundation therefor — it is high time we started talking about putting pressure on every member of Congress to stand up and do their duty to uphold the Constitution. The GOP surrogates have already started to make noise about having the Congress validate the prior position of the Administration to continue to act above the law. This is unacceptable — and every member of Congress should hear that from all of us.
Please, take time over this July 4th holiday weekend to contact your representatives. Write in letters to the editor. Call into local talk radio. Talk about the issues involved in this with family, friends, co-workers. The Fourth of July stands out as a moment when citizens of this nation stood up for the right to life, liberty and the pursuit of happiness in this nation — government requires that citizens remain active and vigilant, and that we work, every single day, toward the goal of a better society, pulling together.
For this year’s Fourth of July, let’s do something really patriotic: let’s ask that every member of Congress stand up for the rule of law. And if they don’t, then we will vote someone in who will.