The University of Chicago's Richard Epstein has an interesting op-ed on the Boumediene decision in today's NYT. Here's a taste:
This 5-4 decision was correct. The conservative justices in the minority were wrong to suggest that the decision constitutes reckless judicial intervention in military matters that the Constitution reserves exclusively for Congress and the president. (Disclosure: I joined in a friend-of-the-court brief filed on the plaintiff’s behalf.)
Yet Boumediene is rich in constitutional ironies. In addressing whether non-Americans detained outside the United States are entitled to habeas corpus, the court passed up an opportunity to clarify the law, and instead based its reasoning, flimsily, on a habeas corpus case that was decided just after World War II. This is too bad, because issues as important as habeas corpus should turn not on fancy intellectual footwork but on a candid appraisal of the relevant facts and legal principles.
UPDATE: Professor Bainbridge comments on Epstein's article here, and Epstein replies.
Epstein is interesting, but gloriously, brilliantly wrong.
You must not have read Epstein's op-ed piece. He claims in his op-ed that his solution to the problem is originalist. My point is that it is not. By either original intent or original public meaning originalism, no one thought the word persons in the Constitution would include the children of foreign princes born here by accident. So his construction of the word persons in the Constitution is not originalist.
Senator Howard's statement makes me wonder if legislators even understand what a clear definition is.
Epstein says prisoners of war are not entitled to habeas corpus, but I can't see why not. The suspension clause says it's only suspended "when in cases of rebellion or invasion the public safety may require it." A German captured in Normandy wasn't rebelling against or invading the United States.
What does that have to do with the meaning of the habeas corpus clause, which predates the 14th Amendment? Epstein's opinion doesn't even mention the 14th Amendment.
You have Senator Jacob Howard speaking of the 14th amendment's definition of a citizen, but that's not all it did:
(1) No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; (2) nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section (1) specifically refers to citizens, and (2) specifically refers to "persons". Why the shift in term? Would you claim it was poorly drafted?
(In any case this seems irrelevant, since the 14th restricts states.)
I'm not going to try to argue that Epstein is an originalist (I don't think he is), but I don't see your quotation as being relevant to who gets habeas corpus. The text you bold is clearly an explication of the phrase "jurisdiction thereof" and thus a qualifier on who counts for birthright citizenship (i.e. no citizenship through accident of birth), not for who gets certain rights.
John Bingham, the principle author of the rights-bearing portion of the fourteenth amendment spoke about of the "wise and beneficent guarantees of political rights to the citizens of the United States, as such, and of natural rights to all persons, whether citizens or strangers."
My sense is that that view was not an unorthodox one at the time, and rightly so. If strangers were to have no rights, how would one who is alleged to be a stranger prove that in fact he is not? Does someone have any evidence that says that the Great Writ was a privilege of citizenship, not a right of all?
Habeas Corpus amounts to asking the government to answer the question "by what authority am I held?" Everyone agrees we have the right to hold enemy combatants, so what would an admitted POW have to gain by asking a question everyone knows the answer to? Now, an alleged POW could argue he's not really a POW. But I think that's the distinction Epstein is making.
He is criticizing the Court for not being sufficiently originalist. My point is that were the Court more originalist, then citizenship would have played a stronger role in the opinion, which cuts against Epstein's claims of fidelity to originalism. (I'm saying he contradicts himself.) That's all.
The broader substantive argument you want to have has nothing to do with my criticism of Epstein.
No. No one thought the phrase "persons ... subject to the jurisdiction thereof" would include the children of foreign princes born here by accident. The word persons, when standing alone, surely would include them.
You are missing here why Epstein wants to ignore the issue of territory. Only Congress can declare what is the territory of the United States, and the Article of the Constitution that vests that power (Art. IV, sec. 3) says that "nothing in the Constitution shall prejudice the claims of the United States". "Nothing" is categorical. It includes the Suspension Clause, too.
Here, Congress declared that Gitmo was not American territory and our sovereignty did not extend to it (in addition to a lease with Cuba whose reservation clause left sovereignty to Cuba). So that should be the end of the question. Epstein is moving around that by claiming he is rooting his rewrite of the Constitution in originalism. My point is only that his rewrite isn't originalist. So if only originalism is what legitimates his move, his move isn't legitimate.
I am making a very, very simple point.
Again, read the op-ed:
You are wrong. By that argument, everyone thought the word persons in the 14th Amendment guaranteed women's suffrage. But that is obviously ahistorical, and is contradicted by the 19th Amendment. So, it is not an originalist argument, of any type. You can make that argument, but calling it originalist is LYING.
Sorry if I am being a blockhead, but I'm not following what that point is. Epstein doesn't address whether the court violates congress's power to determine the territorial limits of the US. He criticizes the court's decision to rule on that issue, not because he is taking a position on the issue you raise, but because he believes that the right of habeas corpus applies both on US territory and abroad.
Is your point that Epstein is wrong on originalist grounds to claim that habeas corpus applies abroad.
The word persons in the 14th amendment most certainly did include women. But the civil rights granted by the fourteenth amendment did not include suffrage. Suffrage, militia membership, and jury eligibility were seen as a package of political rights separate from the civil rights granted by the fourteenth amendment. That is why the fourteenth amendment itself anticipates the legal disenfranchisement of blacks and provides a penalty for it.
This is what I mean when I write above "Epstein is moving around [whether the court violates congress's power to determine the territorial limits of the US] by claiming he is rooting his rewrite of the Constitution in originalism."
Again:
You can pretend his isn't taking a position, but he is. He is waving away Kennedy's use of de facto soveriegnty and the creation of a functional test out of Eisentrager, which he explicitly criticizes in his op-ed, by instead moving around the issue of territory. But you can't do that and be originalist, among other reasons, because no originalist ignores the text of the Constitution.
Have you even read Boumediene?
That would explain why after the 14th Amendment was passed, women immeditely were admitted to the legal profession.
I have a question or a comment (I'm not sure which it is) about how to interpret the quotation by Senator Howard. Can the statement of one senator's understanding of a proposed amendment account for the understanding of every other senator or representative who voted for it? Can it account for the understanding of the member of every state legislature that voted to ratify the amendment?
Even if the senator had authored the amendment (and maybe he did....I'm ignorant of that aspect of the amendment's history), I don't believe his identification of the amendment's meaning necessarily is, or even ought to be, determinative of the "original" meaning of the amendment.
Having said all this, I apologize for going off topic. I realize this thread is about habeas claims, foreign policy, etc., etc., and not about my questions on the nature of originalism.
I already noted that under both original intent and original public meaning originalism, Epstein is incorrect. Your critique of original intent originalism is irrelevant.
The subsequent textualist argument ("Nothing") seems stronger. But it refers to "claims." A possible implication is that nothing prejudices congressional claims to territory. Which is different from saying Congress can define what is not territory. I would think an originalist would want to investigate the original meaning of this sentence.
This bit is where he goes wrong: "If the conditions for suspending habeas corpus are identical for citizen and alien, so too should be the conditions for applying it. If citizens overseas are entitled to habeas corpus, so are aliens." There's no argument here, only assertion. And the assertion isn't even plausible.
Epstein says that his position "would not routinely entitle everyone to habeas corpus all the time. Enemy prisoners of war are never granted it, either in the United States or abroad." Enemy POWs historically weren't granted it for reasons that Epstein has already rejected, so Epstein has to provide new reasons for this disparate treatment. Some suggest that, because POWs must identify themselves and claim that status, that means that practically speaking there isn't any issue. That relies on compliance with the laws of war by our enemies; if the constitutional rules Epstein argues for were in place in 1944, Germans could have been trained to refuse to claim POW status and instead to file habeas petitions, and on Epstein's view, those petitions would need to be heard.
Epstein's view also commits him to the position that aliens abroad have the same due process rights as citizens and legal residents of the US. Presumably we can't wage war on our enemies unless in waging the war we allow the enemy to dispute their identity, among other things. Sometimes just describing a position is enough to refute it, and I think this is one of those times.
Okay, let me take another stab at guessing what you mean here: are you saying that it is hypocritical of Epstein to both use the language of originalism and at the same time tacitly condone an opinion that fails to live up to the standards of originalism?
Re: your off-topic but interesting question: Yes, Howard was the author of the words he was explaining. Since he was neither shy nor ineffective at publicizing the meaning of those words, we can generally assume any ratifier who cared to know what they meant would have relied on Howard's explanation. The text of the amendment also closely tracks that of a well-known civil rights bill. That bill contained explicit language very similar to Howard's explanation, and it was made well known that the more compact language ("jurisdiction therof") had the same meaning as the language in the prior statute.
Frank Cross, I think you are deliberately misinterpreting my argument. I am not making a positive case for an originalist account of anything. I'm just pointing out that Epstein's originalist solution isn't originalist.
If you'd like to see Founding era treatment of foreigners, you might note that the judicial power extends to diplomats and so forth, but not between foreigners and other foreigners, or foreigners against their own governments.
So the question is, what is the originalist evidence for Epstein's argument that there are no distinctions? I'm criticizing his originalist argument, not arguing in favor of originalism or laying out any positive case. You're smart enough to know that.
Frank Cross: The subsequent textualist argument ("Nothing") seems stronger. But it refers to "claims." A possible implication is that nothing prejudices congressional claims to territory. Which is different from saying Congress can define what is not territory. I would think an originalist would want to investigate the original meaning of this sentence.
Your argument would make sense if it weren't incoherent.
Look at the whole of Article IV. sec. 3:
If Epstein wants to argue that this isn't an explicit grant of power to Congress to declare territory, he needs to make an originalist structural argument that he can't make because the text and history is in the way. I'm not laying out a positive case, but Epstein's argument is ridiculously wanting.
I think you know that. Try again.
I have already written that Epstein is contradicting himself.
Yes, Howard was the author of the words he was explaining. Since he was neither shy nor ineffective at publicizing the meaning of those words, we can generally assume any ratifier who cared to know what they meant would have relied on Howard's explanation.
This is just another way of saying, "Under both original intent and original public meaning originalism, Epstein is incorrect." Take heed, Frank Cross.
While I am perhaps a bit more sympathetic to Epstein's views, I think you nail a pretty huge difficulty with his position there. Do you know, is there any merit to the idea I have heard mentioned here and there that the right is only to petition for a writ of habeas corpus, and that courts could simply refused to hear specious claims? Not that that solution really seems desirable.
Not only is that historically accurate, it is now the law after Boumediene and Munaf.
Thanks for your explanation. Still, I do have questions and concerns about how one arrives at the understanding of others who may have voted for the 14th amendment, or any other amendment (or law, or constitution), for that matter. However, I might wait until the next time a conspirator posts on a question that's more on topic.
Originalism Is Useful:
Yes, I am quite aware that my "critique" (as you put it) of originalism is irrelevant to whatever point you were trying to make. I believe I acknowledged as much when I wrote my comment.
I think I wrote criticism. But thanks for reading me in such a haughty light.
I still don't see where Epstein is arguing that. I see where Kennedy is arguing it. And I see where Epstein is agreeing with Kennedy's result. But I don't see where Epstein is agreeing with Kennedy's reasoning. I do see instead where Epstein is disagreeing with Kennedy's reasoning.
I have no way of knowing whether Epstein agrees with you that congress can define US territory and finds this fact irrelevant, or whether he disgrees with you and finds this fact irrelevant; all I know is that he finds the territorial status of Gitmo irrelevant.
The only originalist claim Epstein makes is that territorial status is irrelevant to habeas corpus. I don't know if this claim is supported by the original understanding of the framers, but I haven't seen you argue this point.
Quite legitimately, I think. No small amount of ink has been spilled on if, how and whether one should overcome those concerns.
There is no viable originalist argument Epstein has to reach that conclusion. He may have a viable argument. But not an originalist one.
That's only the judicial power of the federal courts. Nothing in the Constitution precludes state courts from exercising judicial power in disputes between foreign citizens.
That would be a fair point if Richard Epstein were Jack Balkin. It would also be a fair point if Jack Balkin were an originalist. I know that Jack Balkin calls himself an originalist, but he is not. In any event, although this is the precise debate I sought to avoid -- as it is technically irrelevant to Epstein's op-ed, Balkin is also wrong, whether an originalist or not. If the Thirteenth Amendment's original expected application is not guaranteed by its text, then slavery is legal in the United States. Balkin's method results in outright contratextual absurdity, which is a definite sign to go back to the drawing board.
We're arguing about the right to file a habeas petition in a federal court.
The precise implications of that choice, especially with relation to the ambiguity of text and historical record, remain a major major point of disagreement.
That is not accurate. Epstein is an extreme libertarian. Sometimes that leads him to the same conclusions as conservatives, sometimes not.
There is nothing conservative about a court making up a rule unsupported by 220 years of American and 500 years of English law.
The decision to which you refer, Bradwell v. Illinois, like the decision announced a day before it, did not turn on the meaning of the word person, but on the court's reading of the (lack of) expansiveness of the rights conveyed by the words Privileges and Immunities clause — specifically whether taking a profession was one of the rights entailed.
I find your first answer plausible, but different from your initial claim.
Alien enemies caught out of uniform on the field of battle or behind our lines -- hang 'em high. Then you can deliver the corpse to the court for disposal.
The power to acquire and dispose of means claiming and disclaiming. Unless you are arguing that the US can't take territory, keep it as a non-state, and then give it back later, your position is nonsense.
Well, I suppose you can an interpret a text however you want, but that doesn't make it correct.
It's a pretty easy argument that the full personhood of women was not respected by narrowly construing the rights of citizens to exclude women's prerogatives. Your defense of Bradwell is somewhat like the duplicitousness of Epstein's op-ed on the originalism point.
I think I'm done.
1) The Court's prior case law says that citizenship status is irrelevant to the scope of habeas. Noncitizens have a right to habeas wherever a citizen would have it. This is an argument from precedent, not originalism.
2) Citizens would have a right to habeas if detained by US authorities outside the boundaries of the US. Hence, based on (1), noncitizens would have it, too.
I don't see where the definition of citizen, nor of person, in the 14th Amendment would have much to do with either point.
[And yes, the entire problem is created by the anomaly that we aren't doing what was done in all prior wars. In past wars, whether a person was to be a POW or not was perfectly obvious: new POWs were in uniform, were enrolled in units, usually had ID, and were perfectly happy to become POWs...
Because "enemy combatants" not falling within that definition were given a drumhead courtmartial at best and then summarily executed.
I'm not defending Bradwell, I am merely pointing out what it actually said. Here's a tip, when someone posting at a libertarian-leaning blog compares a case to Slaughterhouse, it's usually not a positive comparison.
As I read your defense of Bradwell, you are not only defening it, you are defending its status quo neutrality, which is an endorsement of an impoverished view of the personhood of women. The original expected application of your words is irrelevant.
I'm a bit confused about the argument against Epstein
Dave,
I'll just cite to Epstein's op-ed, because I really don't have much more to say:
1. The word "person" in the 14th A on its face includes everybody. I understand Howard as saying that notwithstanding that universality, we won't claim that US citizenship extends to the children of ambassadors or foreign ministers just because those children happen to be born here.
It's not clear to me that Howard was correct about this exception, but even if he was, I don't understand the point OIS is making (unless I'm right in #2 below).
2. Congress has the power to acquire territory. On that I assume we all agree. It's not clear to me what the relevance is of this point, but I'll move on. The questions then are (a) what rights apply (b) to "persons" within that territory once acquired.
In this particular case, I assume an originalist would look to the language of the 5th A to define "person", but perhaps OIS is saying we should look to the 14th. Ok, but then we get back to his misinterpretation of Howard's exception.
3. As for what the relevant rights are, this is a more complicated issue because of the Insular Cases. In those, the Court essentially held that Congress could define the scope of rights applying to the inhabitants of territories. Even then, however, it's at least arguable that some especially fundamental rights might apply, and the Court has leaned in that direction (I take it as agreed, for example, that no one thinks Congress can remove all rights from Puerto Rico and set up gas chambers there).
This gets to the question whether habeas is a fundamental right (or a fundamental restriction on governmental power -- note the placement of the Suspension Clause). jim47 is clearly correct in noting the distinction between various classes of rights. A number of Court opinions and Congressional speeches after the Civil War make this distinction. In any case, I see no reason to believe that the 14th A changed in any way the application of habeas.
I never made that argument, so I'm not sure what you're responding to. I don't think Howard is making an exception. I think that is an originalist understanding of the word "persons" in the Constitution. So Epstein is not making an originalist argument when he claims:
True. Point for Epstein.
This is an argument that there are no distictions between persons, citizens, and aliens, and that everyone is covered one way or another. That is not an originalist argument, as the text of the Constitution and the history do not support it. He is right there are no distinctions in the Suspension Clause itself; he is plainly wrong about the rest of the Constitution.
There is no originalist argument for this. It is a hypothetical claim.
There is no originalist argument for this. It is a hypothetical claim.
This is how he avoids Congress' express declaration that Gitmo is not a State and not Federal Territory.
There is absolutely nothing supporting this conclusion.
Again: I am not making a positive originalist case, so discussion of the Insular Cases -- which apply to actual U.S. territory, not land which is not U.S. territory, like Gitmo -- is irrelevant.
1. I am not defending Bradwell. 2. If, after you have read this post, you think I am defending Bradwell, re-read my post and return to step 1. Recurse infinitely if needed.
Bradwell never said that women could be discriminated against because they were not encompassed in the word person, which is what you need it to have said in order to buttress your original claim about the scope of the word person in the fourteenth amendment.
What it did say is that they could be discriminated against because the fourteenth amendment allows all sorts of invasive and invidious discrimination (not that they put it that way). This is a conclusion that follows very directly from the flawed logic in Slaughterhouse. Both Slaughterhouse and Bradwell are wrong because they embrace a highly limited view of civil rights under the 14th amendment.
But whether the case was right or wrong is irrelevant to the point at hand: that I find no interpretive authority who ever made an argument on the basis that "person" in the fourteenth amendment did not encompass women.
As an aside, the result in Bradwell may very well have been motivated by sexism, rather than honest interpretation. But that only discounts the value of the ruling as evidence for your initial claim.
No, it does the exact opposite, by totally gutting your bogus intepretive method. My point is that Bradwell really is about disparging women's personhood, despite the fact that the word person is in the Constitution and purports to include them. So, the word "person" in the 14th Amendment doesn't guarantee women's full inclusion in citizenship, contrary to your ahistorical reading.
(Oh, and in my reading of your defense of your defense of Bradwell, you are a misogynist, because Jack Balkin says so, despite what the text clearly says: "1. I am not defending Bradwell. 2. If, after you have read this post, you think I am defending Bradwell, re-read my post and return to step 1." Your denial thus disappears on originalist grounds.)
If that is the case, please explain conspicuous presence of the phrase "jurisdiction thereof" qualifying the word person in the first section of the fourteenth amendment.
How does that help make the Fourteenth Amendment about non-citizens captured abroad while waging war on the United States? If yu have a pertinent point that advances a defense of Epstein's op-ed, please make it. But you don't have one, as you already conceded: "Yes, Howard was the author of the words he was explaining. Since he was neither shy nor ineffective at publicizing the meaning of those words, we can generally assume any ratifier who cared to know what they meant would have relied on Howard's explanation."
In that case I don't understand your reference to the Territories clause. I think the disconnect may be this: that in my view, Congress can't declare that Gitmo is not US territory while at the same time it exercises de facto control. That argument, though, is just what Epstein is trying to avoid.
To the extent you're saying the Epstein is really making a textualist argument rather than an originalist argument, I think you have a point. I suspect that Epstein sees it this way -- that if he relies solely on the plain meaning of the original text, that's an "originalist" argument. I'm not sure we can expect him to go into further detail in an op-ed.
How is it not originalist that the word "person" refers to citizen and alien alike?There is no originalist argument for this. It is a hypothetical claim
It's argued as a logical consequence of the Suspension Clause, and hence originalist. You may of course be unpersuaded by the logic, but those who are persuaded have an originalist basis for the conclusion.
Yes, well, Kennedy made that up whole cloth. You are right that's the flaw Epstein criticizes and wants to avoid.
To the extent you're saying the Epstein is really making a textualist argument rather than an originalist argument, I think you have a point.
He's not making a textualist argument, either. Not a coherent one that is consistent with Constitutional text or history, in any event. You can't look to NOTHING in the Suspension Clause as proof of something that directly contradicts the text of Article III of the Constitution, and claim it justifies a plausible constitutional view of judicial power. That's an absurd, self-refuting argument.
Because, as an original matter, the word "person" does not encompass all aliens.
It's argued as a logical consequence of the Suspension Clause, and hence originalist. You may of course be unpersuaded by the logic, but those who are persuaded have an originalist basis for the conclusion.
By that logic, in my reading, the Thirteenth Amendment legitimates slavery. I am relying on the Thirteenth Amedment, so my argument is an originalist one.
No. It is not.
Habeas provides the power of the Article III branch to inquire into the legality of a detention by the executive or by the States. A court can deny the petition if the legality is self evident or the petition raises no meaningful question.
Until these decisions, the prevailing view was that the power of the Article III branch was less extensive than the power of the other branches. The executive could order troops overseas, and the Congress could pass laws governing those troops, but the Court could not inquire into the legality of a detention by those same troops. Boumediene and Munaf change that. If the troops detaining the prisoner answer through their chain of command to the President, then they are subject to the Writ through the courts.
However, in Boumediene Justice Kennedy goes back to the earlier decisions and explains what they were really about now that we know that they were not about a limitation in the reach of the court. One threshold issue is that since Habeas is a power of the court, the petition should be dismissed if the court does not have the power to issue an order to release the prisoner because of a superseding superior authority. This turns out to be the real meaning of Munaf, where the higher authority was the sovereign jurisdiction of the Central Criminal Court of Iraq, of Eisentrager, where Kennedy notes that the Germans were being held under the joint jurisdiction of all the Allied Powers, and of Hirota, where again the prisoners had been convicted and were being held under the jurisdiction of the occupation government authorized jointly by all the Allied Powers. Obviously this does not apply to Guantanamo.
The other geographic point is that the protection of the Constitution does not apply to non resident aliens held overseas. Well it did not apply to the Eisentrager Germans, or to the Hirota Japanese, and there is a lot of other case law on this point. Now Kennedy specifically did not decide whether the Constitution applied to detainees at Guantanamo. The question was not before the court, and it was remanded to the District Court for consideration.
Note that if these detainees are not entitled to Constitutional protections, this means all the protections. No 5th or 14th Amendment. No due process. All that is left for Habeas is to decide if the detention is illegal in the sense that it violates an existing statute.
Although the Supreme Court did not discuss the application of the Constitution to Guantanamo (they did point out that it did not extend to occupied Germany) the DC Circuit has previously ruled that detainees in Guantanamo have no constitutional rights. That decision was not altered by Boumediene and remains binding on the District Courts in the DC Circuit until it is changed. So the next round of litigation may be limited to the question of whether Guantanamo is permitted by laws passed by Congress, which seems pretty obvious (AUMF, DTA, MCA).
Two years from now the next case may be back before the Supreme Court asking whether these detainees have a right to due process protection. Maybe there is a way to short cut this, but only if the DC Circuit reverses itself on a question that it has reiterated on several occasions.
Anyone may petition for Habeas. The petition will probably be dismissed if the justification for the detention is obvious (a POW held during war) or if the detainee has no constitutional rights (non resident alien held outside US territory) and can assert no plausible statutory question. Of course the judge can issue the Writ if, in his opinion, there is an interesting question and then the executive has to comply and produce a response no matter where the person is detained.
You have assumed the conclusion.
By that logic, in my reading, the Thirteenth Amendment legitimates slavery. I am relying on the Thirteenth Amedment, so my argument is an originalist one.
It is to someone who agrees with your "logic". Of course, no one will be persuaded that the 13th legitimates slavery. Many people will be persuaded that the lack of distinction between citizens and aliens in the Suspension Clause logically implies habeas should also be applied without such a distinction.
Regardless of its persuasiveness, according to you, it is an originalist argument. It should be obvious that no one will be persuaded because the original meaning of the text of the 13th Amendment is unambiguous.
Many people will be persuaded that the lack of distinction between citizens and aliens in the Suspension Clause logically implies habeas should also be applied without such a distinction.
Whether many will be persuaded or not, that doesn't make it an originalist argument. Epstein claims his argument is originalist. It is not. Whether you find it persuasive is really up to you.
No. I have not. As a historical matter, I am correct.
Again, I wasn't laying out a positive case. Just criticzing Epstein's claim that his argument was an originalist one. But if you were correct, the statement would not exist at all, Article III would not distinguish between classes of foreigners, and the history of the nation would have a clear example of an alien overseas arguing they are a constitutional person for some purpose. All Epstein has is hypothesis that "jrose" finds persuasive. Good luck with that.
No. It is originalist only to those who are persuaded by its logic (no one in your hypothetical on the 13th and slavery).
Whether many will be persuaded or not, that doesn't make it an originalist argument.
It is originalist to those who are persuaded that the lack of a distinction between citizen and alien in the Suspension Clause implies the application of habeas should also have no such distinction. It is not originalist to those who are not persuaded.
Yet another conclusory statement.
"nor shall any person [...] be deprived of life, liberty, or property, without due process of law;"
Where is the originalist evidence that this protection is limited to citizens?
That isn't true at all. I am persuaded that the lack of a distinction between citizen and alien in the Suspension Clause implies the application of habeas should also have no distinction. My problem is that the implication is a hypothetical one that is inconsistent with Article III of the Constitution, rather than one rooted in the history of the nation and its precedents. It is valid. But it is unsound. It also isn't originalist.
If you think that originalism is whatever a person finds persuasive, then you are correct that anything you find persusaive is originalist. I disagree. Arguing that the Thirteenth Amendment legitimates slavery is not orignalist, no matter how persuasive you consider it to be.
Do you know what it means to say "I am not making a positive case, only criticizing Epstein's claim that his argument is originalist," or is your theory of language so capacious that you thought I meant "I am eating a manure pizza."?
Although I agree that this getting silly. Originalism can rule out some arguments, like the 13th Amendment legitimates slavery. But these are arguments no one would make anyway. I doubt originalism resolves any really tough issues. And, to be meaningful, originalism would require delving into the thousands of pages of original materials, but those who make originalist arguments seldom reference more than one or two comments, which are often themselves ambiguous. People adopt the results they prefer and then paint them in originalism. Of course, if you favored the Boumedienne opinion, that would be a counterexample.
Why are you persuaded?
It is valid. But it is unsound
Huh?
If your criticism is that Epstein left out positive evidence that the Due Process clause was not originally limited to citizens, I have little doubt that was due to limited space in an editorial (I bet he could easily provide such evidence).
If you don't know the difference between validity and soundness, I can't help you.
No, I did not prove your equivocation: I answered it. One can claim to dispose of or acquire territory, as I stated above. Such as by declaring "This is not our territory." Disposing of territory by legal declaration would be "disclaiming" territory in the sense you are now using it.
That obviously has not been my argument. Just give up.
Ah. So you agree Epstein's argument was not originalist, even though he says it was. Thanks!
I'm also waiting for you to explain why you are persuaded that the lack of a distinction between citizen and alien in the Suspension Clause implies the application of habeas should also have no distinction.
I am not making a positive case, only criticizing Epstein's claim that his argument is originalist
Then what is your criticism with regards to Epstein's claims about the originalist meaning of "person" (and please, try something that is not conclusory).
I am persuaded that:
Persuasion is a pretty low standard when dealing with hypothetical arguments.
if all dogs are spiders;
and if all spiders eat Martian strippers;
then all dogs eat Martian strippers.
Two false premises there. Still waiting for you to identify the false premise in this argument:
the lack of a distinction between citizen and alien in the Suspension Clause implies the application of habeas should also have no distinction.
There is only one premise (the lack of a distinction between citizen and alien in the Suspension Clause). Is that false?
I suspect that this description has been universally held for 60 years and conforms to all the textbooks and summaries of the case. So it may come as a surprise when Kennedy points out that this description was dead flat wrong. Pointing to the actual text of the decision: "A nonresident enemy alien has no access to our courts in wartime."
In Boumediene, Kennedy emphasizes the phrase "enemy alien" in Eisentrager, and points out that German soldiers in WWII could be held as POWs and German civilian citizens could be detained outside the US as enemy aliens. Eisentrager then notes that a legal US resident who is also a German civilian citizen had access to Habeas in our courts, even though the same citizen would not have access if captured outside the US. Aliens who are not citizens of enemy countries during wartime are not discussed.
Before Kennedy went to all the trouble of pointing this out in detail, most scholars could be excused for believing what everyone else believed: that Eisentrager said that all aliens held overseas had no access to Habeas. However, to comment on the Boumediene decision and still not have gotten Kennedy's explicit correction takes a special type of thickness.
A lot of the commentary on Boumediene (not just Epstein) seems to be from people with fixed concepts of the law that are not subject to correction. As a result, it may be that Boumediene will be misinterpreted in the text books for the next 60 years by people who substitute what they would like to have heard for what was actually written in the decision.
Habeas is not a right, let alone a constitutional right. It is a power of the courts to enforce the law, which may or may not involve rights. The decision to extend Article III Habeas power to Guantanamo has no effect on the question of whether constitutional rights extend to detainees there (or this question would not have been explicitly remanded to the District Court).
The scope of Habeas depends on US command over the jailers and the power to release prisoners, not to the status of the prisoner. More explicitly, it does not matter if the prison or prisoners are in US territory or not, but it does very much matter if they are in someone else's territory (a foreign sovereign nation or an allied occupation government). If US troops on the Moon detain the citizen of a non-enemy foreign country, then Habeas reaches through the US troops, not because the Moon is US territory but because it is not the territory of anyone else.
Eisentrager (as described by Kennedy) makes it clear that in war, non resident enemy aliens (and probably uncontested enemy combatants) have no basis to petition for Habeas because their detention is self evidently legal. However, non resident aliens held outside the US who dispute their combatant status are not a category described one way or the other by Eisentrager. After Boumediene, such detainees in Guantanamo raise sufficiently interesting questions that the courts may consider their petition, but everything else is up for grabs. Again, the important thing about Guantanamo is not that it is 90 miles away as that no other country (certainly not Cuba) could contest a decision by the US to release a prisoner from detention.
In my previous post I suggested that the only question may be statutory legality, but that was not precise. To the extent that the government claims that the detention is justified under the common laws of war, then the court may consider the legality of the detention using both statutory and international common law (but not constitutional law absent a reversal of the DC Circuit).
The alternative is to either assume Congress is so dense that it didn't see the problem or so incompetent that they couldn't manage to avoid it.
Boumediene points out, however, that Habeas is different from every other type of case. Habeas is the power of the court to inquire into the legality of the actions of another branch. The court issuing the Writ must the the one or two courts that have jurisdiction over the location of prisoner, but after that the court simply exercises its power. While there typically is a petitioner, a court could issue the Writ sua sponte if a particular detention came to its attention.
Therefore, Congress was being particularly obtuse when in the MCA it added the language: "No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination." Obviously they must have believed at the time that this wording makes sense, but now thanks to the history lesson and legal education provided by Justice Kennedy, we realize that this view of Habeas is wrong. One might just as easily have tried to legislate that "no court shall have the jurisdiction to read a newspaper that may report a case about an enemy combatant that might lead that court to issue the Writ." A judge doesn't need jurisdiction to read a piece of paper, and his ability to issue the Writ derives from the location of the prison being within his jurisdiction, which does not change depending on whether he does or doesn't read the text of an application.
The court did not accept the MCA restriction because it was defending its own power. That power is protected from the other two branches by the Suspension clause. It probably didn't matter that this particular group of people were enemy combatants, child molesters, or any other type of unpopular person. The court was defending its own power from an unconstitutional attempt by the other branches to constrain it.
Bullshit.
The other two branches bent over backwards to accomodate what the court suggested in its previous ruling. The court misused its authority and if rulings like this continue eventually the court will be brought down.
A point about this. Yesterday, I heard on Cspan or some such station that Justice Breyer has been going to Europe for X years to lecture on law.
How much was he teaching and how much European law was he bringing back with him. Who was getting the better deal.
Which is why the 15 Amendment was necessary.
There is nothing unclear about this. Indeed, Sir Arnold Duncan McNair's British treatise International Law Opinions (The University Press 1956) cited in the American Center for Law and Justice amicus brief (p. 10-12) had no problem interpreting the habeas court common law concerning POWs:
In sum, the habeas corpus common law incorporated into the Constitution did not extend foreign POWs no matter where they were held. The procedure available for POWs is a military review of their status.
Exactly right. The Suspension Clause means nothing -- it exerts no restraint -- if Congress and the President can twist the meaning of "invasion" to whatever it wants it to mean. If we assume that the Framers intended such twisting to be licit, then there was no point in even bothering to frame a Suspension Clause.
In sum, the habeas corpus common law incorporated into the Constitution did not extend foreign POWs no matter where they were held. The procedure available for POWs is a military review of their status.
The Bush administration does not contend that the people held at Gitmo are POW's.
He didn't make it up, he applied what amounts to an estoppel. If you think basic legal principles don't apply when interpreting the Constitution, then you have an odd idea of originalism.
1. He's not looking at nothing. He's noting the absence of any distinction.
"Holmes: I would call your attention to the curious incident of the dog during the night.
Lestrade: The dog did nothing in the night.
Holmes: That was the curious incident."
2. The Art. III language has no obvious relevance to the failure of the Suspension Clause to make such a distinction, nor to Epstein's argument. There would be no reason for him to mention it.
You continue to disclaim any attempt to make a positive originalist case, but that's a fruitless distinction. All you're really doing now is repeating your conclusory disagreement with Epstein while implicitly assuming facts or rationales which you refuse to justify (and which are, IMO, contestable).
With the change, this is exactly right. It is all about turf protection. Nothing "constitutional" about it, they are just seizing power.
All of the War on Terror cases are about the desire of the SC for a piece of the action. They don't want to be cut out of it, it hurts their pride.
The funny part is that having asserted their power, no Gitmo prisoner will ever get a court to order their release. It is safer to let them rot than take the risk that a released prisoner will kill an American. Then, the blow back against the courts might be serious.
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Progress in the Bismullah case suggests otherwise.
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I too am drawn to the distinction that turns on "POW" vs. "Charged and under prosecution" and "detained but not charged." The Courts seem to defer to the military in the POW and "charged" instances. See last week's DC Circuit decision relating to Khadr.
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For some years now, I've found the "territorial" defense to be a mighty thin reed of support for the administration's position.
It holds that they are not Geneva POWs. It doesn't deny that they are what might be called common law prisoners of war. And the old UK cases hold that such don't get HC access.
Original treatment of POWs varied. Execution, recruitment, holding for ransom, release on parole, imprisonment till end of war. All were used, HC wasn't. Geneva regularized treatment of POWs in uniform but neglected POWs out of uniform. The Geneva method (treat them as civilians) seemed suboptimal in current conditions.
All the litigation may encourage us to turn all captives over to indigenous forces to convert them from international conflict prisoners to civil war prisoners. Then the indigs can hang 'em.
You might find that reading is useful too. As I understand it, you seem to be complaining that Epstein's arguments are not the originalist he claims to be. Could you please point out where he claims to be making an appeal to the original understanding of the Suspension Clause? He does make a claim about historical precedent, but he doesn't limit the time frame, or make any of the other types of arguments (other than an appeal to the text) that originalists typically make. Since he makes no claim to originalism, I really don't see the point of taking him to task over this, much less of calling him a hypocrit. You would be better off going back to eating Martian strippers.
As for the Op-ed itself. It looks to me like Epstein is complaining that Kennedy made a mistake by deciding the case on a narrow ground, when he could instead have decided on broader grounds and overruled precedent in the process. Between the two approaches (if that is the choice), I much prefer the Kennedy approach. But I'm not surprised that the academic would rather take the broader, more activist approach.
I accept that you probably do think of the issue at about this level, but I take that more as a confession on your part than as a contention to be addressed.
You would be better off going back to eating Martian strippers.
Wouldn't we all.
Good point. Conceded.
I never called Epstein a hypocrite. In any event, let me just go back to the op-ed itself:
Yes, which is question-begging. There may be no distinction there because no one considered the question (the "absence" means nothing); or because everyone assumed non-citizens don't count ("no need to mention aliens, they're irrelevant"); or because they meant to treat aliens and citizen equally ("we will give them equal treatment by making no distinction"). Perhaps Epstein is right, but if citizens and aliens were to be treated equally, it makes just as much sense to expect both citizens and aliens to be mentioned in the Suspension Clause ("citizens and aliens shall be treated equally in all cases") as they are explicitly in Article III, rather than neither being mentioned. Epstein is assuming the conclusion he wants. That is fallacious.
Is that enough of a false premise for you, jrose?
Yes, he did. And he admits it in his opinion.
It's debatable whether the lack of a distinction between aliens and citizens in the text of the Suspension Clause implies an originalist view that aliens and citizens should be treated equally. However, as you concede,
Perhaps Epstein is right
You are now making a different criticism. That his analysis begs the question is not the same as failing to satisfy some criterion of originalism.
In any case, he didn't beg the question. He used two different clauses in the Constitution to support each other (in each case, it's the absence of any distinction which is relevant). Now, he may very well be wrong (I happen to agree with his conclusion, though not all of his reasoning), but he didn't beg the question.
I did not concede that Epstein is right. I wrote that his argument is one possibility out of three, even if he is right that the evidentary burden is not the opposite of what he claims, and, assuming the best case for him, even then he only has a 50% of being right. My "concession" was sarcasm.
I was responding to jrose. I made that clear. Thanks for pointing out that jrose's arguments have been off-topic.
I concur with Mark Field's comments which support my criticisms.
Howard Gilbert, I think the Circuit was overruled, and that Judge Green's decision on due process (which was the basis of the interlocutory appeal) is law of the case.
Obviously, time will tell whether the district court orders the release of anyone. More likely, the government will follow its previous practice of releasing prisoners on the eve of hearings; one would certainly expect something like this for the 54 prisoners already cleared for release/transfer.
So, who wants to bet on what happens today with the petition from Bismullah, and the direct habeas cases before the Court?
The Court sees itself as a policy making branch. It is the Warren Court legacy.
The liberals want to make policy on national security and law enforcement. The conservatives on economic issues. Both on social issues.
Power seeking and power protection is what policy making branches do.
Sorry if this is not high minded enough for you.
Assuming Congress failed to clearly suspend habeas corpus (rather than merely strip the courts of jurisdiction and/or provide adequate substitutes for a traditional habeas hearing) allows the Court to avoid the question (including the justiciability thereof) whether the suspension itself is constitutional, i.e. where was the "rebellion or invasion" requiring the suspension? Unless you count the U.S. invasion of Iraq and Afghanistan, which I think all would agree is a tortured application.
The Courts stepped in, yet again (Padilla, etc.), to stop this nonsense.
The idea that German POWs would want to disclaim POW status and file habeas petitions is ridiculous. As POWs, they were entitled to honorable treatment. As civilians, they would have been murderers (of Allied soldiers) or at the least co-conspirators to murder, and liable to execution. This is just the little factoid excuse of the Bush Remnant watching their dreams of the Boy King collapse.
The adminstration did not class these prisoners as POWs because they did not qualify under the terms of the Geneva Conventions.
Thompson's "Boumediene: A Supremely Problematic Court Decision" is particularly apt. Whilst I recommend reading the full article, the following exerpt is included for those who are confused by the misleading and sometimes false statements of the pro Boumediene insurgents:
"Consider the rights that our country provided to the enemy prisoners in question before Boumediene:
The right to hear the bases of the charges against them including a summary of any classified evidence.
The ability to challenge the bases of their detention before military tribunals modeled after Geneva Convention procedures. As Robert’s pointed out, some 38 detainees have been released as result of this process.
The right, before the tribunal, to testify, introduce evidence, including exculpatory evidence, call witnesses, cross examine the government witnesses and secure release if and when appropriate.
The right to the aid of a personal representative in arranging and presenting their cases before the tribunal.
The right to have the government search for and disclose to the detainee any evidence reasonably available to it tending to show that the detainee is not an enemy combatant.
The right to appeal an adverse decision from the tribunal to the Federal DC Circuit Court along with the right to employ counsel and secure release if entitled to it.
The right to petition the DC Circuit to remand a detainee’s case for new tribunal consideration if the petitioner comes up with newly discovered evidence
The right to require the Department of Defense (DOD) to conduct a yearly review of the status of each prisoner including the right to have the Secretary of Defense review any new evidence that may become available relating to the enemy combatant status of a detainee.
As a part of that yearly review, the opportunity for the detainee to explain why he is no longer a threat to the United States, which could lead to his release.
The DC Circuit can order release of the prisoner, and the head of the DOD Administrative Review Boards can, at the recommendation of those panels, order release upon an appropriate showing."
If we had treated detainees as we did in WWII, then SCOTUS could and would have kept itself out of it. The Alice in Wonderland quality of the entire charade is indicated by your introduction: And they did not—every last one of them!—qualify because? Because from 10,000 miles away George Bush and Donald Rumsfeld said so?? Perhaps if we start from scratch, and not by assuming the results, we will make more sense.
The "rights" of the detainees have, every step of the way, come begrudgingly either under court order, or as a last-minute attempt to evade more explicit and more fair court orders. As originally envisioned, and as is still mostly the case, these prisoners (whom, I repeat, we are not treating as lawful POWs) had the right to be tortured, to have confessions extracted under torture introduced into evidence against them, and so on. Why have so many members of our own military denounced the proceedings as kangaroo courts?
Remember, these are not battlefield detainees for the most part. The Bush Administration made the audacious claim that, the battlefield against terrorism being everywhere, they could use rules appropriate for actual combat anywhere they pleased. It is a great pity that as many as four Justices bought into this argument.
I recommend the full article but the following is pertinent;
"The existing procedures (the ones the Supreme Court thinks are deficient) are so generous that the military paroles hundreds of suspected terrorist detainees back to the battlefield, although no international law, including the Geneva Conventions, requires it.
At least 5 to 10 percent of those released re-enter the fight and put soldiers' and civilians' lives at risk. One killed a judge who was leaving a mosque in Afghanistan; another went back to fighting the U.S. and assumed leadership of an Al Qaeda-aligned militant faction in Pakistan; and, most recently, a released detainee became a suicide bomber."
Sorry mate. Your side made its case. The avalanche of legal bullshit will work for only so long. Now the truth is getting out.
When Americans die, or are injured, because one or more of these innocents are freed because of the excellent work of the pro bono (but paid with Arab money) lawyers here in the US, the US citizen will know where to place the blame.
I would suggest that there are many non US citizens in other parts of the world, victims and families of victims, of those already released from preventative incarceration in Gitmo by the military, curse the day they were released.
The alleged generosity of the catch-and-release program is illusory. No other US Administration has held the right to take people from their beds anywhere in the world (that is where Boumediene was captured) and hold them as quasi-POWs, but without the rights of POWs. Are some of them bad people? Very likely. Any random despotism can make that excuse for its arbitrary detentions. Are some of them now going to take up arms, or, worse, terror against the United States likely as a consequence of their illegitimate and unwarranted incarceration? Very possibly. What sort of crackpot reasoning is this?
Did you know that some Jews who had survived the Holocaust hatched a crazy plot to poison millions of Germans in revenge? Care to comment?
Luckily, no one these days views the Supreme Court as a liberal institution. While it's true that the McCain campaign assumes that another terrorist attack on the USA will be good for its electoral fortunes, it seems more likely we can concentrate on repairing the institutional damage the Bush Administration wreaked.
Stop it.
Is this as well-supported as Scalia's BS about 30 released terrorists?
Here's some actual research.