An Open Letter to John McCain

Dear Senator McCain,

I understand in recent weeks that your campaign has come on hard times. I understand it must be frustrating to find a ten-year quest for the White House—what was clearly a lifelong ambition on your part—impeded by a relative newcomer with whom you have serious philosophical disagreements. As such, I understand why you have abandoned promises to make this election about ideas and policies and instead committed the kind of character assault that was used so successfully against you in 2000. Such turns are, however regrettable, to be expected in electoral politics. We can trace such history back to our first seriously contested presidential election in 1800. They are nothing new, and simply a part of democratic politics, however ugly.

I write this with a somewhat heavy heart. I have blogged in support of your kind of conservatism in the past—you are one of the last Republicans left in the party with whom I felt kinship. I was excited about campaign in 2000 and have deeply lamented in the last years that we have lived with a Bush rather than a McCain White House. I have even been willing to accept your genuflection to the radical right. I wrote this off as the kind of coalition building necessary to generate a majority rather than a compromise of your principles. I was elated when you won the Republican primary because I believed it a victory for the decency wing of the Republican Party.

Nonetheless, nothing can justify the behavior of some of the people in your rallies who have, in reference to Obama, shouted such things as “Traitor!” “Terrorist!” and “Kill him!” Your campaign has now released several statements defending these incendiary words, rather than distancing you from them.

Character assaults, however petty, may be justified as political necessity. But to countenance calls for murder is unconscionable. We live in an age where the possibility of political violence in the form of terrorism exists everywhere in the world. It is, as many have suggested, our greatest challenge. We may not be able to extinguish political violence in our time—such thought is of course Pollyannaish—but we can at least take a principled stand on the matter. You should. I urge you to be uncompromising on this matter, to reject such comments from even your supporters. It would set the right tone in an uncertain age.

I don’t know if these suggestions are politically intelligent, or would resonate with voters, or help you in swing states. I am not a political strategist. But I believe the moral principle here more important for our future than the tactics you employ to win an election. After all, doesn’t country come first?

With respect,

H. Robert Baker

Palin, Biden and what does a constitutional office entail, anyway?

Palin and Biden did as expected. Both were feisty, Biden tried his best not to be condescending, Palin offered up lots of facts and figures to indicate she is fit for national office, and the two clashed on substantive issues. They also clashed on one constitutional issue: the position and role of the vice president.

The question came long into the debate, when both candidates appeared fatigued. Palin had just explained her understanding of the role of vice-president in relation to the president. McCain has already signaled, apparently, that she would head up energy policy and "reform of government over all" and working with families with special needs. Biden answered that he was a man of independent judgment, but that he was working for Barack Obama.

Gwen Ifill, the moderator, then asked a question which appeared to be something like a spontaneous follow up. (Here's the transcript I'm working with, by the way). "Governor, you mentioned a moment ago the constitution might give the vice president more power than it has in the past. Do you believe as Vice President Cheney does, that the Executive Branch does not hold complete sway over the office of the vice presidency, that it is also a member of the Legislative Branch?"

This gets to the crux of the issue. And while both candidates have doubtlessly been boning up on policy subjects, this straying into a constitutional matter may have tested their substantive understanding of the Constitution. It is an important question, given that the officer we ultimately elect is not just a policy wonk, but someone charged with defending and protecting the Constitution. Here was Palin's answer:

Well, our founding fathers were very wise there in allowing through the Constitution much flexibility there in the office of the vice president. And we will do what is best for the American people in tapping into that position and ushering in an agenda that is supportive and cooperative with the president's agenda in that position. Yeah, so I do agree with him that we have a lot of flexibility in there, and we'll do what we have to do to administer very appropriately the plans that are needed for this nation. And it is my executive experience that is partly to be attributed to my pick as V.P. with McCain, not only as a governor, but earlier on as a mayor, as an oil and gas regulator, as a business owner. It is those years of experience on an executive level that will be put to good use in the White House also.

Huh? I'm not sure which founding father deserves credit for imbuing the office of vice president with "flexibility," but I'm sure he would be surprised to find this out. Of course, invoking the "wisdom" of the founding fathers is always a more political than intellectual argument, and as such we should not take that so seriously. In truth, Palin did not answer the question. This is a dodge that has become typical of her when she is cornered--she meanders, then tries to say something about her experience as a mayor or a mother. In this case, she went with mayor/governor, to highlight "executive" experience.

Biden's response was emphatic. He rejected Vice President Cheney's interpretation of the Constitution as dangerous. He then gave a somewhat confusing answer about where the vice president's office is defined in the Constitution, citing "Article I" but saying it is an executive office. If I followed him correctly, he was saying that Article I only gives the VP one role when he presides over the Senate, and that is to cast a vote in the event of a tie.

At this point, I wish Biden had tried to pin down Palin. He studiously avoided doing anything that would come off as condescending (possibly to avoid cries of sexism). This may have been a good political move, but someone needed to get Palin to answer the question: do you believe, as does Cheney, that the office of Vice President is not under the sway of the executive? That it is an independent office that exists neither in the executive or legislative branches?

I have blogged in the past about my concern over McCain's selection of Palin. VPs are usuallly ciphers, but given McCain's advanced age and 100 plus pages of medical report, Palin has to demonstrate she is ready. She has given a series of shaky interviews in the past few weeks suggesting that she is out of her depth on the national stage. Now, in the only part of the debate that asked the candidates to display a substantive understanding of the Constitution, she has stumbled again. She is not yet "a heartbeat away from the presidency." But if she someday is, then my only advice: be afraid.

Brinksmanship and the Debates

What is happening? The debate scheduled for tonight--the debate I made my students promise they would watch--is now in limbo. Its status has become a political football, and it's difficult to see who's in possession at the moment. Being an historian, I am curious about the narrative and its meaning, so let's pause to see if we can reconstruct the events:

At some point on Sep. 24, a conference call between the two campaigns ended with the suggestion of a joint statement that Congress should put aside divisions and figure out a plan for the current financial crisis.

John McCain made a prepared, public announcement later that day saying he was suspending his campaign and asking that the presidential debate be postponed.

Obama responded that the debates did not need to be delayed. He suggested that the time was ripe for a debate and that presidents need to multitask anyway.

McCain has further said he will not participate in the debate unless a consensus has been reached in Congress about the bailout plan.

This narrative changes by the minute, so this is already out of date. But the narrative is a curious look at politics on the campaign trail. It is, either sadly or gleefully, a parody of itself.

Nothing is funny about the financial crisis, except that the response seems to be to give the former CEO of Goldman-Sachs $700 billion in seed money without any legislative or judicial oversight or review. This is a page out of the FDR playbook, which tells us something about the constitutional direction of the new conservative movement.

But the response of the candidates is. First, John McCain reads from a teleprompter a statement saying that this has surprised us all and that we have to drop everything to guarantee a legislative solution. Let's drop politics, he says, and suspends his campaign.

Except that there is nothing more political than telling the nation that you are not political and (arguably, I know) using the crisis as a platform for a campaign slogan ("Country First"). And I doubt anyone really thinks otherwise. Certainly Obama didn't, who took the opportunity to remind everyone that the president needs to be vigorous and should be able to lift heavy objects and leap buildings and the like. The obvious implication is that McCain lacks such vigor. A clever, if somewhat mean, counterstroke.

But McCain then upped the ante by saying he WOULDN'T participate in the debate unless a consensus was reached. This is pure brinksmanship. He is virtually daring Obama to fly to the debate alone, and then have to turn his plane around for Washington.

But will it work? If McCain backs down and goes to the debates, he will have backed down (unless he can sell a compromise in the next eight hours, which is . . .). If he doesn't go, it's a huge gamble. Will it pay off?

Meanwhile, we're getting a taste of what the next president will have to deal with.

Cosmopolitan Judging and Habeas Corpus

Eric Posner has recently posted an essay analyzing Boumediene v. Bush, critical of what he calls "judicial cosmopolitanism" in the decision. The essay is typical of Posner--learned, nimble, and provocative. I do not find it convincing since he is, as he himself admits, working on the premise that Boumediene's major contribution to jurisprudence was to extend constitutional rights to noncitizens on foreign soil. The Court made no such pronouncement, and Posner acknowledges that the decision can be read much more narrowly.

If one separates his analysis of Boumediene to his critique of cosmopolitan judging, then we have the makings of a new debate in constitutional law. For better or worse, conservatives seem to line up in the "American exceptionalism" and positivist camps, adhering to originalism in constitutional construction. Liberals seem (also for better or worse) to be more interested in global human rights and the symbiotic relationship between American constituitonal law and global law. Posner's essay, while not particularly deep, is an excellent introduction to these ideas, and offers a conservative, thoughtful critique of cosmopolitan judging.

One effect of continually appointing strict originalists and positivists to the bench (people like Scalia and Alito) is that their palpable disdain for foreign law in an increasingly global era has lessened the influence of the Supreme Court internationally. The Court used to be the gold standard for constitutional law, but it is now in decline. Not that this signals an immediate need to admit foreign law into Supreme Court opinions--and certainly not as controling law--but we must be honest about the consequences of judicial parochialism as well as judicial cosmopolitanism.

Cosmopolitanism and the Revenge of Logicalitiness

Or vice versa. Before I write another post complaining about coalition-building within political parties and how this affects true constitutional change, I thought I'd post a link to this article by Jonathan Rauch on the Republican's war on cosmopolitanism, logic, reason, science, and other things now pegged "elitist." Rauch's satire works brilliantly as both comedy and biting commentary.

It feels good to take a breather from the madness.

Elections and Constitutional Regimes

Recently, my posts in this blog have strayed dangerously from issues constitutional to matters political, a dangerous kind of slippage for anyone who purports to deal with the Constitution and its history. Nonetheless, the two are connected. Throughout history, the settlement of great constitutional questions has often been done politically rather than legally. But such change is usually tethered to elections and the kind of mandate that politicians can make from them. Is 2008 such a year?

Probably not. But before we analyze that, we need to lay some historical groundwork. There are very few national elections that we might call constitutionally transformative in our history. I would argue for the following elections as fitting within that category: 1800; 1860; 1896; 1936. Each of these elections brought not just policy change, but serious and new interpretations of the Constitution to bear against older alternatives. 1800, of course, makes the case for itself: the Federalists and the Democratic-Republicans cast the election in those terms, and there is no doubt that Jefferson's election set the terms for constitutional interpretation for the next sixty years. The unresolved question of the antebellum era was slavery, and those issues came to a head in the election of 1860, when a party won that was devoted to keeping slavery from the federal territories. It brought Civil War. The 1896 election was noted for the losers--the Populists. The subsequent co-opting of progressive reform into the Republican Party created the activist, muscular government (think Teddy after 1900) that enforced rules that the Supreme Court had attempted to subvert. Finally, 1936 was a repudiation of the Lochner-era laissez faire Constitution and the ushering in of the New Deal.

This is not to say that other elections have not had huge political impact. 1828 marked the birth of democratic participation in the presidential election; 1876 signaled the end of Reconstruction; 1912 demonstrated how divided the United States was (given that the socialist candidate netted a big percentage of the vote); 1968 spelled the end of Democratic dominance of national issues; 1980 brought conservatism into the mainstream. But these political changes (I would argue) did not necessarily auger the kind of constitutinal change that we might describe as transformative. They may have been transformative politically, but (to take but one example) the Reagan mantra of low taxes and higher defense spending was not in-and-of-itself a novel interpretation of the Constitution meant to replace rival views. It was, more properly, a policy disagreement with liberal democrats.

To return to 2008. I had initially imagined that *perhaps* we were living in a transformative age. The Bush White House has through a variety of means exerted executive power in new ways. When combined with a quiescent Congress (even after that Congress turned Democrat) it appeared that we were more and more coming within the gambit of an imperial presidency. The stakes, therefore, for this election seemed inordinately high. Would the next president augment that power, or bring the office within constitutional limits?

These issues, however, do not seem to animate the electorate. Not that they need to, of course--many of those who voted for Lincoln did not do so in order to change the Constitution. Nonetheless, the nation understood his electoral victory as the kind of mandate that would remove federal protection (and sponsorship) of slavery. It was enough to drive the slaveholding states to secession. And from their perspective, rightfully so. They saw the imminent end of slavery, even if that imminent end was not immediate emancipation, but rather the slow strangulation provided by refusing slaveholders access to western territories.

In this election, thus, we are confronted with a question that does not have an easy answer. Is anyone really concerned with the executive branch's grab for power in the past eight years? Are we concerned that our own civil liberties might be endangered by the Bush administration's (and Congress's) end-run around the suspension clause? (I refer here to the issues raised in Boumediene v. Bush, and encourage anyone interested in this subject to read my article in common-place about it.) Polls have focused either on the economy or Iraq, and news coverage has steadily ignored all constitutional issues, excepting abortion. (Mainstream coverage of this has, as usual, been awful.)

It was possible several months ago to see both Obama's candidacy and McCain's victory over Romney in the Republican primary as an indication that American voters were moving not just toward a new kind of politics, but repudiating the executive powermongers understanding of the Constitution.

I do not believe it is possible to view things that way now. Nonetheless, we are caught in the fog of war and perhaps this election might nonetheless prove transformative. But that will require statesmen to emerge amongst those (whomever they are) who win the election. It has happened before, of course. But there are also reasons that we have come to expect so little from politicians.

Sketch of a Villain

Excuse, if you will, a few disconnected thoughts about the Republican National Convention: about Palin, Huckabee, and (sadly disturbingly) Mitt Romney.

Sarah Palin, the surprise pick for VP, did not surprise anyone with her speech. Well delivered and strong, full of falsehoods and half-truths: everything we have come to expect from a VP. If she survives the ethics investigation in her home state (they are, after all, REPUBLICANS who are investigating her and most likely will fall into line before recommending censure or impeachment for her clear ethics violations), she will get the base foaming at the mouth.

Huckabee made one revealing statement in what was otherwise a boring speech. He praised McCain for never renouncing his country while a POW in Vietnam. If he had just renounced his country, said Huckabee, he could have gone home early. This is not the way I understand the story. McCain did break under torture and did sign a statement saying he was a war criminal and an air pirate (or whatever they shoved under his nose). His heroism came from his refusal to leave the camp before POWs who had arrived before him were released. I find such a story tremendously moving, as it does recommend McCain's character. Sadly (for Huckabee or whoever wrote his speech) it doesn't comport well enough with the "country first" theme of the Convention.

Mitt Romney is fast emerging as the Republican villain. His speech was replete with meaningless platitudes. He tried to whip up a frenzy over radical Islam, suggesting that George Bush did the right thing by labeling certain countries part of an axis of evil and starting a war in one of them. (This got surprisingly few cheers, by the way.) He took a backhanded swipe at Michelle Obama. And he castigated as liberal the establishment at Washington--an establishment that has been resoundingly republican for the last fourteen years. And there is simply something frightening about a man who says that the Democrats are the party of "Big Brother" yet scolds the Supreme Court (apparently a liberal bulwark, in Romney's pea-brained world) for upholding habeas corpus against the doctrine of unlimited executive power.

For the constitutional scholar, Mitt Romney is the villain. He is the partisan without thought-out principles. He promotes power rather than limits on power. His understanding of foreign affairs is mean spirited and, sadly, seems to animate a small portion of our population. His principles are on the edge of unacceptability--he ought to be tossed out by any legitimate political party, not given a prime spot at a speaking convention.

My only consolation was that no one seems to care about him much. They didn't in the elections and they didn't last night at the convention. So much the better for America and the Constitution.

If Mitt Romney represents anything like the future of the Republican Party, we are in trouble. I anxiously await McCain's speech...

Introducing the New VP

What matters the VP pick? In modern politics, VPs were thought to be ticket balancers, meant to draw on geographical regions or voter blocs to help a party to win the election. Certainly this explained the choice of VPs in 2000, where Joe Lieberman gave the Democrats a northern flavor and Dick Cheney helped shore up Bush's conservative appeal. But Cheney's tenure has proved a sea change in presidential politics and constitutional relations. Famously secretive and resistant to traditional checks and balances, Cheney has elevated the vice presidency to new heights in terms of influence and policy decision-making. It makes us all look twice at who the VP candidate really is.

So, in 2008, Obama picked someone to reassure us all that he would collect seasoned political thinkers when he arrived in office. The choice was almost too measured, too safe. It didn't excite anyone. It didn't change anyone's mind (if the polls are to be believed). For McCain, the issue seemed just as urgent. At 72 and already evincing some disturbing lapses on the campaign trail (although he has kept a runner's pace that belies his age), everyone knows the VP choice would be important. The VP, after all, is one heartbeat from the presidency.

So he chose . . . Sarah who? It was a surprising move, to say the least. But, considering the framework of analysis above, it makes perfect sense. McCain needs to appeal to young voters. To women voters. He has been excoriated for being out of touch, and this gets him in good with the youth (as does, by the way, appearing with Daddy Yankee).

But given the kind of campaign that McCain and his supporters are running, the choice seems strange, and almost schizophrenic. McCain castigates his rival for not having the appropriate experience, and he chooses a 40 year old newbie as a potential successor. McCain runs ads aimed at disaffected Hillary Clinton supporters, then winks and nods at them as he trots out a woman to stand behind him. In short, this smacks of cynicism, clumsy politics, and--although it is probably much too early to tell at this point--desperation.

Sarah Palin is an unknown to me, and the VP pick (let's face it) should not be too important in terms of voting for a president. But it is the first glimpse of how a president would select advisers and cabinet members. We all know and remember the disasters of the Bush White House, which managed somehow to best the Clintons at cronyism and tried to turn the Justice Department into a kennel of conservative fighting dogs. It matters, in short, who these presidential candidates choose in the second position because we need to be assured that the president who comes to office will make wise decisions.

So, sorry McCain. This choice is a bit of the strange and a pinch too cynical to be of value. And I doubt you have really fooled anyone.

Cosmopolitan Education and Pedagogy: Liberal Education in the 21st Century

It is to John Locke whom we owe modern conceptions of “dignity” (http://www.yale.edu/lawweb/avalon/states/nc05.htm). Locke essentially conceptualizes it as an enabler for someone to hold special standing and/or an entitlement to respect. Nowadays it seems that everyone is in possession of this “enabler”; you get it just by being born, by simply showing up. This dignity that is widespread among humanity, once only ascribed to landed nobility—negating the plebian, serf, servant and slave, is perhaps one of the driving forces of liberalism today. Couple this notion (and Protestantism) with Immanuel Kant’s first articulation of the philosophical concept of Autonomy and we begin to see how liberalism is a peculiar creature of the west.

One cannot accurately engage liberalism without coming to a realization that implies an inherent pluralism in terms of human flourishing. In other words, a liberal perspective on life is conceptually an autonomous one—one that gives ample recognition and encouragement to personal development as one sees fit under the assumption that there will be equal recognition (because of inherent dignity) for everyone’s ability to also do the same so long as one’s own personal development does not encroach on the ability of another to also flourish. This liberal abstraction meets certain bulwarks as we begin to consider the institution of the public school, and dynamics of identity.

This Liberal idea of autonomous identity can be cause of political strife if we consider the debate over what should be taught in schools regarding identity claims and the seeming acceptance or recognition of some, and not others—Christian let’s say and not lesbian and gay. Again, this liberal idea of identity has resulted in substantial national and ethnic political debate over just what the truth is and at times resulting on a turn on the liberal state’s premise of acknowledging a person’s identity and protecting each person’s ability to flourish. Conflicting claims to identity-flourishing are not easily solvable by experts or ad hoc committees,-- and when considering claims of morality, which arguably lead to notions of identity, there aren’t any experts or supreme authorities to settle these moral arguments once and for all (take the debate on evolution and intelligent design for example and the gradation of opinions therein).

So, then, with these often conflicting metaphysical projections in the liberal state, educating children in many ways requires preparing them for an autonomous relationship with the dignity and autonomy of others. Because one, we as humans are not capable of developing on our own. Two, we are inextricably tied to others via relationships (parents, friends, lovers, family, children, neighbors, etc.). And perhaps third, because the things we come to value that concern the arts, the culture, money, food from other places, depend on the network of society. To be sure, we should not assume that the school has the primary role in educating children—we can rightly assume that parents have the central role. While it is true that the state may disagree with parents on how to teach children, the parents do not lose their roles. The state, in my own and the view of other philosophers, should intervene to protect the child’s growth into autonomy by promoting the notion of choices among options so that one, the child is aware of the choices of others by virtue of their equal dignity and autonomy, and two, the child’s parents still have the role of primary instruction when it comes to raising their children, and three, for the child to make the decisions that would lead her into autonomy.

Another problem then occurs if we accept this notion of choices among options within the school setting. How does this doctrine, then, suggest proper pedagogical methodology? In particular, if we hold true to the choices among options doctrine, we then should not omit some options. In the West, we have a peculiar way of asserting Euro-influenced methodologies essentially negating the other options other groups of people have come to raise and educate their children. For example, Harvard Economics Professor, Roland Fryer mentioned recently on CNN’s Black in America that African-American students perform lower than children in third-world countries. In many ways we could argue that all the options aren’t being afforded to children via routes to autonomy because those options have been restricted to a Euro-American sensibilities and politics of pedagogy while giving arguably proper avenue to place some responsibility on parents (or the lack thereof) which may lead to other critical forces causing such disparity. How, then, should the liberal state decide on a curriculum teleologically aimed at autonomy? Better yet, how can the liberal stat ensure it?

There is immediately the problem of what we can all agree the truth is (take religious education which preaches certain things about homosexuality and abortion). There is also the conflict of how much weight to place on different topics often among the same topic. Consider what I call the Lincoln paradox: In American history, just how much focus should be placed, pedagogically, to his decision to emancipate the slaves? Lincoln is generally depicted as a pariah of social justice given his time, but of what mention is equally often given of the political benefits of the emancipation for Union forces and of how he did not view blacks as equal to whites? The issue is not what the facts are, but which ones we should focus on as we teach children about events, ideas, and subjectivities—not just what happened, but what narratives those lessons are wed in. Kwame Anthony Appiah argues that since children are not readily able to absorb truth in all of its complexity, we must begin with simplified truths and perhaps what is even untrue. For example, we are taught untruth when we learn physics: We learn Newton and Maxwell before we learn Einstein and Schrödinger. Newton and Maxwell, he says did not know about relativity or about interdeterminancy of fundamental physical laws and so their physics which assumes absolute space and infinite divisibility is just not true. Perhaps this argument does not hold as much water when we move from concrete mathematical principles to the subjectivities of the mind, but maybe there is something to it all.

This “subjectivity problem” in education is highly critical because subjectivity arises generally from some interaction with the world (or lack thereof) and there are notions of intersubjectivity as noted by Sartre and also W.E.B. Du Bois’ thesis of double consciousness which unquestionably play a role in how people become aware of choices among options. And since subjectivity is a necessary child of autonomy certain claims of truth are made based on identity and of moral reasoning which are both plural by liberal nature. To these problems, Kwame Anthony Appiah suggests that a compromise should at least be considered. He states that when identity claims are at stake, parents are permitted to insist that their children not be taught what is contrary to their beliefs and in turn the state insists that the child be told what others believe in the name of a desire for the sort of mutual knowledge across identities that is a condition for living productively together.

History, blood, and war

Whoever believes that history is solely an academic enterprise—one conducted for scholastic exercise or personal pleasure without relevance to our contemporary lives—might want to take time to read the Supreme Court’s monumental decision released today in Boumediene v. Bush. It is yet another 5-4 decision by the Roberts Court, one in which the crucial swing belonged yet again to Justice Kennedy. Contrary to expectation, the Court swung away from the hard right philosophy of Scalia and Roberts and confirmed the sanctity of habeas corpus against congressional interference. But perhaps most surprising about the decision is not the jurisprudential victory of the liberal wing, but rather the crucial importance of historical narrative in both the opinion of the court and the major dissenting opinion. It is testament to the importance and power of history as a legitimating force.

Although complicated, the facts leading to Boumediene v. Bush may be somewhat succinctly stated. The 2001 Authorization for Use of Military Force (AUMF) passed by Congress in the wake of the September 11 attacks gave President Bush authority to seek retribution on Afghanistan’s Taliban-led government. In the subsequent war, prisoners were kept in Afghanistan prisons or shipped to the American Naval Station at Guantanamo Bay. These prisoners of war were styled “enemy combatants,” a status crafted by the executive branch to bolster claims that the POWs were not to be granted any of the rights determined by the Geneva Conventions. The Supreme Court ruled in Hamdi v. Rumsfeld (2005) that this situation was intolerable, and that the executive branch could not make such a determination by itself. Congress responded with the Military Commissions Act (MCA) of 2006, which (along with providing legislative backing to the executive branch’s military commissions) stripped federal courts of habeas corpus jurisdiction.

So, when several detainees petitioned for writs of habeas corpus, Boumediene among them, the D.C. Court of Appeals dismissed the petitions because Congress had stripped the court of its jurisdiction. It was precisely this issue that came before the U.S. Supreme Court in Boumediene v. Bush. And the Supreme Court’s firm answer (if predicated on a very slim majority) is that habeas corpus is a judicial power that Congress cannot suspend unless within the bounds of the Constitution.

Although the opinions are awash in technical legal argument, both the opinion of the court and the dissenters rely on competing historical narratives. Justice Kennedy, both the swingman and the author of the majority opinion, constructed a sweeping historical narrative of the writ of habeas corpus that spans eight centuries. Relying on the amicus brief filed by legal historians, Kennedy described the principle of habeas corpus as originating on the field at Runnymede in 1215, of growing up in tandem with the king’s power in the fourteenth century, and emerging in the seventeenth as a judicial check on the absolutist pretensions of the Stuart monarchs. The various political and military conflicts between king and parliament in the seventeenth century are cast by Kennedy as crucial in the development of habeas corpus as a check against arbitrary power. The victory of parliamentary forces and the constitutional settlement of 1689 reaffirmed the common law rights of trial by jury and habeas corpus and created a lasting tradition for Anglo-Saxon constitutionalism in the face of arbitrary power. American patriots breathed this same rhetoric in the Revolutionary period a century later, and insured in their Constitution that neither Congress nor the executive could suspend habeas corpus except in very clear cases (rebellion or invasion).

Kennedy’s narrative is generally correct, even if it lacks a certain amount of historical sophistication. It is right where it matters most—for instance, in identifying the writ of habeas corpus’s change from a prerogative writ concerned with power (and solidifying the king’s power in the fourteenth century) to one concerned with liberty in the seventeenth century. And Kennedy’s narrative is aspirational, one that recognizes the substance of American revolutionaries’ very real commitment to liberty and their desire that the Constitution be interpreted in this way.

Compare this with the narrative sketched by Antonin Scalia. To quote from his dissenting opinion: “America is at war with radical Islamists.” This is a war he traces back to 1983 and the bombing of the Marine barracks in Lebanon that killed 241 American soldiers and which moves to American soil in 2001. The enemy (always referred to by Scalia in the singular) “has threatened further attacks against our homeland.” He adds that one need only to “board a plane anywhere in the country, to know that the threat is a serious one.” We have sent our armed forces “against the enemy, in Afghanistan and Iraq.” For Scalia, the decision reached by the Supreme Court today “will make the war harder on us. It will almost certainly cause more Americans to be killed.”

This is Scalia’s narrative—blood, war, and executive power. Accusing the Court of playing a “bait-and-switch” game with the president, he has linked the judicial check to a war apparently begun in 1983 in Lebanon and which has presumably a beginning, middle, and (eventually) an end. But the ambiguities and distortions that lurk behind Scalia’s ham-fisted history belie his argument. Hezbollah (the perpetrators of the 1983 attack on the U.S. Marines barracks) and Al Qaeda are two very different organizations that come from rival Muslim sects. They do not cooperate. Linking such attacks on U.S. troops abroad is at best a callous display of ignorance. At worst it is intellectually dishonest. At the very least, his refusal to consider the civilian casualty count in the Middle East—those who have born the brunt of our war on terror as well as the brunt of terrorist attacks. Such facts are apparently nuisances to Scalia. So much the worse for historical truth.

Nonetheless, Scalia’s positioning of historical narrative before legal argument in his dissent is an indication of just how important historical narrative is. Why else would he begin his dissent with such a narrative? His legal analysis is formal and chilly, and it fails to persuade in the face of basic constitutional principles, let alone the litany of human rights abuses that we are perpetrating in an attempt to “protect” us. Scalia must know this, otherwise he would not need to justify his legal reasoning with an historical narrative that places Boumediene v. Bush into the context of a perpetual war (a war going on 25 years long, if Scalia’s narrative is accepted). Only then can the government’s extreme action of suspending habeas corpus and trying foreign nationals by military commission make sense. But the colossal failure of his historical narrative intellectually and morally indicates that not all narratives are equal. And our ability to receive them critically and to reject them when they fail is a key component in the survival of constitutional democracy.