human rights and constitutional conundrums

Consider the following hypothetical scenario: A senior intelligence officer is informed that the CIA has established secret prisons abroad that are holding suspected terrorists. He is further informed that the CIA (with the indirect blessing of the Bush administration) has decided to use waterboarding and other methods commonly deemed to be torture in the process of
interrogation. That same senior intelligence officer is then called on to testify to Congress in closed hearings. Under oath, that officer then reveals this information. The senior intelligence officer also intimates that he cannot reveal such knowledge publicly because it would violate federal law (as in publishing state secrets). Those congressmen and senators had themselves signed a secrecy pledge thus binding themselves not to reveal sensitive information. Should a senator or congressman in possession of such information blow the whistle anyway? Would they risk jail time for doing so?

It would certainly raise an interesting constitutional question. Article I, section 6 grants freedom of speech for national legislators, and this ought to be protection enough
from political or legal threats (hat tip to Marty Lederman on Balkinization for bringing this discourse.net post to our attention). Precisely what sanctions would a member of Congress face for raising these practices in debate?

The constitutional conundrum, though, is not the real issue. As we lead into the 2008 presidential election, the question of the United States' commitment to human rights will be a central matter, particularly where the rest of the world is concerned. Our candidates (repubs and dems) have erred on the side of jingoistic hysteria and like to rehearse "get tough" speeches and soundbites during the debates. Witness, for instance, the immediate negative reaction to Barack Obama when, in debate, he was asked by Brian Williams what the first thing he would do as president if a terrorist organization attacked the United States. Obama's response--that he would have an emergency response ready so we don't get caught in another Katrina--was deemed weak and offensive.

Outright offensive, however, is the shameless behavior of Mitt Romney. He has suggested in debates that we "double" Guantanamo. Shockingly, he refused to denounce waterboarding as torture. Which brings us right back to where we stand in the presidential election of 2008. Although the corporate American media refuses to address the issue of international human rights, we must as a nation force our presidential candidates to account. It is time, for instance, for the Democrats to state plainly where they stand on these important issues. Hillary Clinton has ducked and dodged the question for too long, as has John Edwards.

We should not forget that elections are themselves constitutional procedures. And that it is elections when the people can speak the most forcefully on particular issues. The elections of 1800, 1828, 1860 and 1936 were all such moments when the people gave voice to a particular constitutional vision. Precisely how we treat 2008 has yet to be determined. Perhaps we need more input and voice from the most important, but most oft forgotten, constitutional actors there are: the People.

Boumediene v. Bush

In what may be the most significant constitutional showdown of the twenty-first century thus far, a number of detainees at Guantanamo Bay are suing out a writ of habeas corpus. The writ's practical suspension in the name of the Bush administration's "war on terror" has been one of the most frightening--and least reported upon--issues alive today in the United States.

The Bush administration argues that habeas corpus simply does not apply to enemy aliens captured on the battlefield. Supporters of the administration point out that there is not a single such precedent in American or British law supporting exactly the fact pattern of Boumediene. Lawyers for the detainees have repeatedly pointed out that this is incorrect, if only because the common law writ of habeas corpus was not traditionally restricted to subjects (or in America, to citizens), and that notions of subjectship were simply not as well articulated as they are today.

The argument is of course much bigger than this. Few supporters of habeas corpus would argue that the writ should extend to the Guantanamo detainees if, for instance, the Bush administration treated them as true prisoners of war and extended them the protections of the Geneva Conventions. Supporters of the Bush administration are also forced to argue that the U.S. courts have no jurisdiction because the United States is not sovereign in Cuba and merely holds a lease for the military base. As absurd as this is on its face, the U.S. Congress has attempted to strip the courts of jurisdiction in these matters, which has subsequently forced great separation of powers questions on the Supreme Court.

Oral arguments before the Supreme Court can be found here. The set of consolidated cases that make up Boumediene v. Bush are well worth listening to and considering as a set of very serious historical problems. How far does the writ of habeas corpus apply? To what extent does the U.S. Supreme Court have the ability to countermand the executive and the legislative branches? And to what extent do political divisions on the court itself reflect different judicial outcomes? Oral arguments before the Court are wonderful ways for the justices to signal each other how they intend to vote and what they intend to argue. What kind of politics do we see here? It is an enormously important question as the imperial presidency rolls onward.

One issue, from a constitutional historian's point of view, is about just how much original meaning is controlling and precisely how it is recovered. One doubts that Justice Scalia's continued refrain "you can't find me one case where habeas was extended to an enemy alien" is relevant. It ignores the development of habeas corpus as a writ and, for that matter, fails to deal with the significant problems of today.

Civil Liberties and the Unitary Executive

What Would Jefferson Do? This is not really a question that seems to animate the Bush administration, whose intellectual muscle has expressed a decided preference for the thinking of Alexander Hamilton (pictured, or, more properly, caricatured, below). Hamilton, of course, appreciated the energy of the executive and rarely tired in promoting the powers of the president. Famously, he advocated the creation of a large standing army under the chief executive's control, and opined (somewhat disingenuously) under the pseudonym "Pacificus" that the framers of the Constitution had intended to leave the whole matter of foreign affairs in the hands of the President. Neither the legislative nor the judicial branch, he suggested, could interfere with the President's power.

Madison may have chided Hamilton in print (Hamilton had argued quite the opposite in the Federalist Papers) but few people are taking notice these days. The conservative Federalist Society continues to promote an originalist argument for the idea of the "unitary executive" and the Bush administration has perpetually struggled to augment its powers and exert executive privilege whenever questioned.

Nowhere is this more disconcerting than in the area of civil liberties. In addition to warrantless wire tapping and the blatant disregard for habeas corpus, the administration has on several occasions suggested that federal officers can deploy torture techniques in violation of federal law.

In Jack Goldsmith's new book, reviewed here by David Cole for the New York Review of Books,
we catch a glimpse of the cosseted world of the Bush and Cheney administration, where dissent (even from conservatives) was not tolerated and lawyers relentlessly worked to shield the President's men from the rule of law. Goldsmith found himself often on the wrong side of the administration's policies. But he occupied a privileged position being head of the Office of Legal Counsel, which provided interpretations of federal law for the executive branch, and thus could not be ignored. When Goldsmith suggested, for instance, that all Iraqis were protected by the Geneva Conventions, the administration had to take note. And, unlike other critics of the Bush administration, Goldstein's account is all the more compelling because it comes from a true believer. As David Cole writes:

Goldsmith's account is credible not only because he was an insider, but because he shares so many of Addington's views. Like his classmate at Yale Law School and onetime friend John Yoo, another Office of Legal Counsel lawyer who worked closely with Addington to justify the administration's most extreme assertions of unilateral power, Goldsmith made his reputation as a scholar with articles highly skeptical of international law, human rights, and international institutions. While serving in the legal counsel office at the Department of Defense, he wrote a memo for Donald Rumsfeld dismissing international law as a tool of the weak. He accused other nations and nongovernmental organizations of creating a "web of international laws and judicial institutions that today threatens USG interests," and recommended that the United States "confront...the threat." And Goldsmith is equally critical of domestic legal constraints; in The Terror Presidency he characterizes post-Watergate legal limits on executive power—the very limits Addington and Cheney so resented—as "one of the Bush administration's biggest obstacles in responding to the 9/11 attacks."

Cole's review is elegantly written, informative, and critically beautiful. And on a subject we need to pay more attention to during our coming presidential elections.

Implications of 14th Amendment Rollbacks

Resolved: The incorporation movement in the Supreme Court is being reversed.

Okay, so incorporation is being reversed. This must mean that the states are regaining power that they lost over the last one hundred and fifty years or so. What will the states do with that power? Would the protection of the rights of a citizen of the United States now be the responsibility of the states? If this is the case, what are the implications for the average citizen? Will he or she experience the abridgement or the fulfillment of rights which he or she formerly possessed? I can see the good and bad of both sides of this coin. What light can anyone else shed on this?

Dred Scott

Is there any authors that agree with the Dred Scott Decision in 21 century

Paul Finkelman Vs. Raoul Berger and the fourteenth amendment

My question is: Is Paul Finkelman basing his argument about the 14th amendment in the constitution on the notion that, the framers were not racist and they wanted freedom for blacks? If so why in is article does he only provide evidence from the people in the State not following the laws that would prevent blacks from coming to the North and gaining some rights and provisions? It seems like his argument does not provide evidence of the framers not being racist, it only provides evidence of people not enforcing the law. If Raoul Berger's argument was correct that the intentions of the 14th amendment was not the gradual move towards equality but the framers were actually racist, wouldn't this allow us to critically look at the framers and see the mistakes that they made in the past and correct those mistakes instead of ignoring them and turning their intentions into something it might not have been?

Interview with Clarence Thomas

One of the most reclusive members of the U.S. Supreme Court is Clarence Thomas. He has been as scornful of the press as he has of his critics, treating them usually with icy silence. But in this interview with Steve Kroft of 60 Minutes, Clarence Thomas talks openly about his past and his conservative views on race and affirmative action. Thomas was the subject of one of the more contentious confirmation hearings in our history. Although his interview deals more with his history than his constitutional views, he is quite revealing on the subject of race and law. His shortness even with the friendly Kroft indicates his touchiness on this subject, particularly when it has to do with affirmative action.

Race and Law, and constructing whiteness

Although nearly a decade old, "Litigating Whiteness," (available in JSTOR) by Ariela Gross offers up some intriguing observations about the all-important question of race before the southern courts during the antebellum era. How was race constructed? Gross argues that antebellum southerners, with no scientific means of figuring out what constituted "black" or "white," relied on evidence of the "performance" of whiteness to distill biological essentialism.

Judicial Power

This post is in response to the class discussion on the Judicial Branch of the government and its powers and authorities. I will argue that the power of the Judiciary rests in the Executive Branch.
The Judiciary has the power to review the constitutionality of laws made by the Congress, but this power was not explicitly given to the Judiciary by the Constitution. This concept and power evolved over time, and the consent of the governed actually gave the decisions authority. If another branch of government such as the Executive chooses to go against the decision by the courts, it can do so. This happened during the tenure of Andrew Jackson, and he simply ignored the courts order. Who enforces the courts order? The Executive Branch. If the Executive actually has the power to enforce or not enforce the laws, then the power of the law actually lies in the Executive. All laws are no more powerful than the actual enforcement of said laws. A law in the form the Judicial sees is abstract and powerless until the power and authority is vested in it by enforcement. What would a speed limit be without a patrolling police force? Without the threat and knowledge of active enforcement, no law has power at all.
The moral standpoint is different in that one should obey laws because they are laws, but this rarely works when applied to the mass populace. The Judiciary has a large amount of de jure power and authority, but the de facto authority lies in the Executive power. A law is no more than ink on paper without the muscle required to enforce said law.

Dworkin on the Roberts Court

In an essay penned for the New York Review of Books, Ronald Dworkin lays out a persuasive argument in layman's terms about the disposition of the current Supreme Court. Dworkin points out that a series of 5-4 decisions, anchored by the right-wing bloc of Scalia-Thomas-Alito-Roberts and joined by Kennedy (pictured to the left), have undermined almost all the constitutional principles at work in women's rights, racial justice, and freedom of speech issues. While minutely examining the doctrinal defenses of these decisions (and finding them wanting), Dworkin points to a disturbing sub-rosa rationale. He writes:

In their Senate confirmation hearings Roberts and Alito both declared their reverence for precedent; they might be reluctant openly to admit that they deceived the Senate and the people. It is therefore not absurd to suppose that this series of odd decisions covertly overruling important precedents is part of a strategy to create the right conditions for overruling them explicitly later.

Dworkin's argument, as well as his explication of the different opinions in the school assignment decisions that so recently undercut Brown v. Board of Education, is enormously important for anyone interested in race and law, as well as how Supreme Court justices make their decisions. Dworkin ably covers not just school assignment, but also freedom of speech issues (Bong Hits 4 Jesus Case), reproductive rights, and the McCain-Feingold campaign finance reform bill. The article is here. (Note to my students at Georgia State: I will give extra credit to anyone commenting on this post with a critical reading of Dworkin's article.)

Slavery, Antislavery, and the Coming of the Civil War

In this intriguing essay, Ariela Gross previews her new book on the role of proslavery and antislavery contests over law and constitution in the antebellum era. She makes the case that the law operated on two levels: the everyday level, where disputes were mediated and slavery was protected; and the national level, where disputes about the constitutional status of slaves in the territories, fugitive slaves, and other heady issues led to considerable conflict between proslavery and antislavery forces. The essay is here.

Did slavery violate the 5th Amendment?

Among the questions we can reasonably ask about slavery in the United States is whether the institution violated basic constitutional freedoms embodied in either the document's spirit and design, or in specific provisions of the bill of rights. In this article, Kaimipono Wenger makes the theoretical argument that slavery was an intrinsic violation of the takings clause of the 5th Amendment. The article does not proceed from historical premises (the argument relies more upon legal reasoning and logic than historical inquiry) but it broaches an important issue about slavery and the construction of the constitution.

Test Blog

Proving that we can actually blog. Those invited, please step forward.

Slavery and the Constitution

For all those in my slavery and the constitution class who wish to begin blogging, now is the time to do so. E-mail me your name and e-mail address, and I will add you to the list of authors so you may begin posting.

In the mean time, I am going to be posting new and exciting links that will help you with your research.

Welcome

In the weeks and months ahead, I hope to launch this blog as a way for scholars and teachers of constitutional history and theory to communicate with one another. I hope it will serve a broad group of scholars interested in sharing ideas and teaching techniques, as well as ruminating on subjects as diverse as current political controversies and the place of constitutional issues in popular culture. Inspired by the Institute for Constitutional Studies summer workshop for teachers, held in summer 2007 at Albany and led by Maeva Marcus and Sandra Vanburkleo.