June 28, 2004

Scalia Gets Medieval

(Via Obsidian Wings.) On the other hand, Scalia gets Medieval on the Bush administration in his dissent in Hamdi:

washingtonpost.com: Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution's Suspension Clause, Art. I, §9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive's assertion of military exigency has not been thought sufficient to permit detention without charge. No one contends that the congressional Authorization for Use of Military Force, on which the Government relies to justify its actions here, is an implementation of the Suspension Clause. Accordingly, I would reverse the decision below.

The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive....

Scalia's line appears to me at least to be that Lincoln's arbitrary arrests and imprisonments during the Civil War simply did not happen and are not part of the history of our Constitution. For what were those arrests and imprisonments justified by if not "the Executive's assertion of military exigency"?

Posted by DeLong at June 28, 2004 11:14 AM | TrackBack | | Other weblogs commenting on this post
Comments

Whoever said that Lincoln's actions were legally justified? They were obviously the right things to do, but they violated the law and had no basis in the Constitution, no question about it.

Posted by: Bill on June 28, 2004 11:39 AM

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Scalia's clearly right here. "Not been thought sufficient" doesn't mean no person ever believed it was sufficient, but rather that no responsible body outside the executive branch ever thought it sufficient. Lincoln's arbitrary arrests and imprisonments were rejected by the Supreme Court as unconstitutional (after the war was over, of course). They are part of the history of our Constitution in the sense that they were examples of the Constitution being violated, but not in any sense that should influence the Court's judgment today.

Posted by: Steve Carr on June 28, 2004 11:49 AM

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"President Lincoln, when he purported to suspend habeas corpus without congressional authorization during the Civil War, apparently did not doubt that suspension was required if the prisoner was to be held without criminal trial. In his famous message to Congress on July 4, 1861, he argued only that he could suspend the writ, not that even without suspension, his imprisonment of citizens without criminal trial was permitted. See Special Session Message, 6 Messages and Papers 20-31."
- Scalia in section III of his dissent

Posted by: Summer on June 28, 2004 11:58 AM

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Scalia wants Hamdi released. NOW. And Stevens joined in his concurrence. Curiouser and curiouser....

Posted by: Silent E on June 28, 2004 12:48 PM

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I agree with Steve Carr: "not been thought sufficient" means not thought so by the people whose thoughts count, that is the Supremem Court (see Ex parte Milligan, where the court says exactly that). If "not been thought" means "not been thought by anyone ever", then the words would be useless because they would never be true (the losing side in any case thinks the law is different from what is decided).

Posted by: David Margolies on June 28, 2004 01:00 PM

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I understand the Scalia argument to be that the "War on Terror" is not a real war. I agree. I think Scalia has this one correct. Scalia wants Hamdi charged with treason or RICO or whatever charges fit. To hold him without charges? How would you like to be held without charges? Bush could win reelection and brother Jeb get elected for 8 more. This "War on Terror" could last 13 years or more. What about the "War on Drugs"? Can we hold people without charges because the president calls it a war?

Now that we are finding out the many of the prisoners at Gitmo are "the wrong guys" what does that tell us? It tells us that our government can imprison innocents to take the heat off them to find "the right guys." Wrongful conviction happens often enough even with legal protections. Detention without trial means that there is no one checking on the imprisoners. There is evidence leaking that Hamdi is not "the right guy." Even if he is wrongfully released, there are ways of keeping an eye on him.

Posted by: bakho on June 28, 2004 01:06 PM

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You will also recall that Lincoln was assassinated Brad, and while he was lionized while dead I'm sure quite a few people breathed a sigh of relief. Not all resolutions of Constitutional crisis occur within the formal system. Hence Scalia's lack of reference to Lincoln's actions. For real students of the Constitution it is understood that it was an abberation corrected by 'other means'. Yet Lincoln was a great man, so we do not disparage his name by mentioning the sins for which he paid quite dearly.

Posted by: oldman on June 28, 2004 02:07 PM

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Brad writes: Scalia's line appears to me at least to be that Lincoln's arbitrary arrests and imprisonments during the Civil War simply did not happen and are not part of the history of our Constitution.

http://a257.g.akamaitech.net/7/257/2422/28june20041215/www.supremecourtus.gov/opinions/03pdf/03-6696.pdf:
During the Civil War, Congress passed its first Act authorizing Executive suspension of the writ of habeas corpus, see Act of Mar. 3, 1863, 12 Stat. 755, to the relief of those many who thought President Lincoln’s unauthorized proclamations of suspension (e.g., Proclama-tion No. 1, 13 Stat. 730 (1862)) unconstitutional.

Don't think Scalia dumber than yourself. He is not.

Posted by: bubba on June 28, 2004 02:25 PM

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The more I read the opinions, and commentary about them, the more confused and suspicious I get. Scalia gets to look all righteous ("See, Us Republicans do care bunches"), while his dissent will have no force. With Rasul, Guantanamo detainees are told they can file in any federal court, while Padilla is returned on jurisdiction technicalities. Read Eugene Volokh, who says Hamdi will be irrelevant for Padilla.

Bottom lines, SCOTUS looks good, nobody gets out til the President says they can.

Posted by: bob mcmanus on June 28, 2004 02:33 PM

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Re: "During the Civil War, Congress passed its first Act authorizing Executive suspension of the writ of habeas corpus, see Act of Mar. 3, 1863, 12 Stat. 755, to the relief of those many who thought President Lincoln’s unauthorized proclamations of suspension (e.g., Proclama-tion No. 1, 13 Stat. 730 (1862)) unconstitutional."

Do you think Scalia has forgotten Art. 1, §9: "no Bill of Attainder or Ex Post Facto Law shall be passed?" I don't.

Posted by: Brad DeLong on June 28, 2004 02:56 PM

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Note that Mark Kleiman has argued that when Lincoln took his actions, the constitutional order really was threatened, and hence the phrase "the constitution is not a suicide pact" was relevant. And Kleiman points out that the constitutional order is not under threat now.

http://www.markarkleiman.com/archives/torture_/2003/03/this_isnt_world_war_iii.php

Posted by: liberal on June 28, 2004 04:17 PM

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Scalia specifically argues that Congress can suspend Habeas Corpus, but otherwise the Constitution fully applies, which I think is an attempt to deal with the Lincoln issue.

You're correct that the suspension was after the fact, but in the context of the Civil War I don't think the Article I Section 9 article is correct. Lincoln's argument was that the necessity of wartime compelled him to make immediate decisions, but unlike the Bush Administration he did not feel these actions should be beyond the scrutiny of Congress or the Courts. As with the Prize cases, the President's case is much stronger if Congress approves the actions, even if this approval is retrospective. I think Lincoln's subtle constitutionalism here is a good example to follow.

Posted by: Scott on June 28, 2004 04:20 PM

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Brad writes: Do you think Scalia has forgotten Art. 1, §9: "no Bill of Attainder or Ex Post Facto Law shall be passed?" I don't.

Your point was "Scalia's line appears to me at least to be that Lincoln's arbitrary arrests and imprisonments during the Civil War simply did not happen and are not part of the history of our Constitution."

Scalia says "to the relief of those many who thought President Lincoln’s unauthorized proclamations of suspension (e.g., Proclamation No. 1, 13 Stat. 730 (1862)) unconstitutional."

So he is aware that Lincoln's arrests happened and many thought them unconstitutional. His argument is that there was no Congressional suspension with regard to this war and therefore keeping the guy without a trial is illegal - the point anyone concerned with the civil rights should support. He did not emphasize that Lincoln managed to get away with it - why give Bush ideas?

Posted by: bubba on June 28, 2004 04:39 PM

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DeLong is letting his prejudice against Scalia distort his judgment. Lincoln scrupled to adhere to law, was desperately concerned to act within the law, argued expertly he had stayed within the bounds of law. He was in every sense a man of the law. Compare the little child who leads us.
Scalia in Hamdi is a moral and legal hero, and his argument is much to be preferred to O'Connor's. He uses his version of originalism in the best tradition of protection of the fundamentals of liberty. Far from being antiquarian, he defends the liberty we need today. He defends both freedom and (in his assault on O'Connor's judicially invented, made-up, second-rate "due process") the rule of law and genuine democracy.

Posted by: Scalia ismyhero on June 28, 2004 09:08 PM

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Mark Kleinman is WRONG. Our constitutional system is
in grave danger, not from Osama, but from his business partner, Mr. Bush.

Posted by: citizen k on June 29, 2004 04:45 AM

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Do you think Scalia has forgotten Art. 1, §9: "no Bill of Attainder or Ex Post Facto Law shall be passed?" I don't.
~~~
Scalia in Hamdi is a moral and legal hero, and his argument is much to be preferred to O'Connor's. He uses his version of originalism in the best tradition of protection of the fundamentals of liberty...
~~~~

WTF? How is Scalia supposed to square this with the Scalia who all but openly proclaimed ..."To fail to obey the government is (as long as the government is not more tyrannical than Tiberius, Caligula, or Nero) morally blameworthy, and contrary to the will of God"

About whom we could fairly say "Scalia's worship of the state -- any state, or, perhaps, any state that is not more oppressive than the Roman Principate that executed St. Paul -- as something holy that commands our obedience for moral reasons ... is idolatrous. It is blasphemous. It is unAmerican."

You know, the *religious* Scalia. Now it turns at that this late date when Tiberiu^H^H Dubya needs him this guy thinks the Constitution is part of the state or something?

If only we'd known we'd never have let him be appointed. It's blasphemous.

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