The title of this posting is a play on the Roman maxim (inter arma silent leges) that translates as "in times of war, the laws are silent." The title means "Laws are never silent." Chief Justice Rehnquist has frequently repeated the Roman maxim since 9/11, leaving no doubt of his opinions. In the dissent to Hamdi v. Rumsfeld, Justice Stevens and Scalia, the two most opposed justices apart, unite to say that this phrase has no place in the US constitution or our laws. It is a rather stunning rebuke of the administration, and of the Chief Justice. Stevens and Scalia would have overturned Hamdi's indefinite incarceration on US soil. The majority remanded the case on the grounds that he has the right to contest the factual basis of his detention (that he is an 'enemy combatant') before a neutral decisionmaker. Thus, although styled as a dissent, Stevens and Scalia were even MORE opposed to the administration. Only Justice Thomas upheld the Bush administration's position that it may hold a US citizen indefinitely, without any showing to anybody of any kind.
Liberty won today. Frankly, the re-discovery of liberty by Scalia is nothing short of a miracle. I hope I am not too melodramatic to report my own unexpected reaction to the opinion of Justices Stevens and Scalia. Unbidden to my lips came the standard liturgical response in the Anglican church to a reading from the Bible: Thanks be to God. Today is indeed a day to be grateful that there may yet be enough virtue to save this republic.
I will post more when I have had a chance to read all three of today's rulings. I invite your comments in the meantime.
Monday, June 28, 2004
Numquam Silent Leges
Posted by The Law Talking Guy at 5:53 PM
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6 comments:
Thanks for the explanation. The morning news reports on it were saying everything from "Big victory for Bush" to "Big set back for Bush." It sure sounds like it was a set back.
How long do you think it will take for Right Wing House Reps (and talk show hosts) to start complaining about "activist judges" and how the Supreme Court is aiding terrorists?
For starters, I think it is a big win. I haven't heard everything there is to hear about this case yet, but it seems that the checks and balances system was affirmed today. However, I am bothered by the fact that officials can still lock people up without charges and arrest them without just cause. This worries me a great deal.
So long as people, especially citizens can be locked up indefinately, we are in trouble. If you pair this decision with last week's ruling that forces us to give our names to police officers, you can see that our rights are being eroded. I worry about police powers, which have gotten progressively stronger since the war on drugs was declared. That is a "war" has gotten us nowhere at great cost to our civil liberities (witness the black male populaiton behind bars with no supply slow down detected). We really do have to stop declaring "war" on abstract notions.
I look forward to hearing more from LTG on the opinions. If you are interested, you can download, for free the oral arguements from www. audiable.com, which is what I am doing as I write this.
Yes, we shouldn't get too comfortable with this ruling. There are still reasons to get Democrats elected to the White House who will appoint less statist judges. What this ruling does show is that there is still a sane majority on the Court. Only the Chief Justice supported the establishement of an emergancy/war executive as demanded by the Bush administration. The worry is, if Bush is reelected, what will the situatio be 4 years from now?
I heard an ominous comment on NPR by former Bush lawyer who helped draft the Bush arguments before the Court. He said that after the election the plan would be to draft new legislation to specifically allow Bush to do what the Court said he could not in this ruling. So if Bush is reelected, we will be right back before the court testing Patriot Act II.
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