Thursday, June 12, 2008

strict constructionists not too strict--again

another thing about the boumediene v. bush (pdf) decision is the fact that, once again, we have a clear example that the four dissenting conservatives on the court are not really "strict constructionists" as they often claim to be. the boumediene decision, at it's heart, is really quite simple. the issue was whether congress had the power to suspend the writ of habeas corpus as applied to the detainees in guantanamo. the suspension clause of the constitution says that congress can only suspend habeas corpus in cases of "rebellion or invasion." the u.s. is not currently being invaded nor is there a rebellion. therefore, congress violated the constitution when it suspended the writ.

a real strict constructionist would have no trouble finding the suspension to be unconstitutional. the constitution is crystal clear on this point. and yet justice scalia, usually held up as the paradigm case of a strict constructionist, issued an overheated dissent, devoting an entire section to his fevered imaginations about the disastrous consequences of the majority's decision. if that isn't "results oriented jurisprudence" what is?

(p.s. can i also brag about how i predicted this ruling months ago? (see #12))