Tuesday, June 17, 2008

Understanding the US Supreme Court's recent rulings


Many people have either read or heard the news about the US Supreme Courts 5-4 ruling in the habeas corpus case for enemy combatants of the USA (BOUMEDIENE et al. v. BUSH) and the easing of restrictions for immigrants to gain citizenship in USA case (Dada v. Mukasey). Both cases had the nine US Supreme Court Justices split along the exact same lines of majority and dissent in the case.

In both cases, the majority included Justices Anthony Kennedy, Stephen Breyer, David Souter, John Paul Stevens, and Ruth Bader Ginsburg; the dissenters included Chief Justice John Roberts, Justices Antonin Scalia, Clarence Thomas, and Samuel Alito.

Many in the media are painting these cases as divided along ideological lines. The Associated Press has referred to Justices Breyer, Souter, Stevens, and Ginsburg as "liberal", while calling Justices Roberts, Scalia, Thomas, and Alito as "conservative". The problem with such "labeling" is that such terms put these justices in a box and narrow how people look at them. The reality, despite the spin of the media on TV, Radio, and Online, is that these cases are not divided along "Conservative" versus "Liberal" battle lines. There is a much more subtle, yet dangerous issue that lies behind how these Justices took sides in these two cases. That issue is the interpretation of the law and the Constitution.

To give a little background, the job of a US Supreme Court Justice is to review and decided cases brought before him or her without ideological bias and to use the US Constitution as the basis for their decisions. But the reality is that US Supreme Court Justices have been employing agenda, ideology, and prejudice in their judgments for over 208 years! Whether the case be Marbury v. Madison (1803), Dred Scott v. Sandford (1856), Everson v. Board of Education (1947), Berman v. Parker (1954) or McConnell v. Federal Election Commission (2003), the US Supreme Court has a history of it's Justices invoking their own bias and ideology into the debate and to help formulate their decisions.

Some may say that such bias and ideological reasoning falls along political lines. They claim political agendas are what rules the day with the justices' decisions. This is not true though. It is a legal division that creates world views and defines how these Justices interpret everything. It is the legal debate between the interpretation of the Constitution by the "Letter of the Law" and the "Spirit of the Law".

The "Letter of the Law" refers to a "strict" interpretation of the US Constitution and the Bill of Rights. We can gather an example of a "strict" interpretation by looking at the First Amendment of the Bill of Rights:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. (http://www.law.cornell.edu/constitution/constitution.billofrights.html)

A "strict" interpretation of this amendment would take away from the wording that the US Congress can never pass a law or resolution that respects, restricts, or regulates the activities or beliefs of a religion. Also, Congress cannot prevent any religion's splitting into denominations or sects and Congress cannot impose the restrictions upon a religious entity that it may against a business per say.

On the other hand, the "Spirit of the Law" refers to the "reasonable" interpretation of the US Constitution and the Bill of Rights. A "reasonable" interpretation of this same amendment would take away from the wording that the phrase "Congress" is not just in reference to the US Congress (US House of Representatives and US Senate) but to all three branches of the US Government. With that understanding, the US Government cannot respect, disrespect, restrict, hold expantion, prevent or promote the exercise of any religion. Also, they cannot tell any religion, not matter how big or small, what, how, and why believe or not believe.

While the above examples are limited in scope, they give you an idea of what we are dealing with when these US Supreme Court Justices make their decisions. The argument of "Spirit" versus "Letter" has been going on since this nation began. Even people at the Constitutional Convention in Philadelphia were concerned about how things were worded because they didn’t want people to "misinterpret" the intentions and purposes of what was being written. Although the Bill of Rights seems to get the most public scrutiny, many people do not understand that the Bill of Rights was meant to be a counter balance to the articles in the US Constitution and limit the powers of the Federal Government.

Now with some background and understanding about the elements of history and law that are associated with the US Supreme Court, we can see how the debate between the "Spirit" versus "Letter" of the Law is key in both of these decisions. In the case, Boumediene v. Bush, the majority five justices give the right given to US citizens of habeas corpus. This is a Latin term meaning "you should have the body". In British Common Law and US Judicial Law, the term refers to having the individual or group of people who being charged with a crime or crimes brought before the court to face their charges and accusers. This is something that leads usually to the accused party to face a trial in front of a judge in some capacity. The reason why this "right" was being withheld from those who have been labeled "enemy combatants" by the US government is because historically anyone who attacks, declares war with, engages, attempts to harm the USA or US troops are considered "hostile enemies". Usually in official acts of war, as declared by a declaration of Congress (examples: War of 1812, Mexican-American War, Spanish-American War, World Wars 1&2), it is easily defined who an "enemy combatant" may be, usually someone from a country that the US declared war on. But in "wars" in which Congress never made any official declaration of war (Korean War, Vietnam War), it was understood that the enemy was anyone who overtly attacked US troops or who were on the side of the Communists.

But in the military operations in Afghanistan and Iraq (Also, known as the "War" in Afghanistan and Iraq), we were not battling a specific people or nation, but segments of people and militants within those countries. Many of the "enemy combatants" held in Guantanamo Bay are there for the gathering of intelligence and because if released, they would go back to the "battlefields" and conduct operations against the USA and US troops. The idea of the "Bush Doctrine" is that America is at War with terrorists and radical entities that hate America and want to destroy the USA and kill Americans. So, like in team sports, in order to prevent defeat, you take offense against the enemy to ensure security and eventual victory.

The five justices in the majority in this case though (Kennedy, Breyer, Souter, Stevens, Ginsburg) looked at Authorization for Use of Military Force of 2001 (also known as "AUMF" of 2001) which was passed after the events on 9/11, giving the President of the US the power to conduct any military activities and actions necessary to find, capture, and punish those responsible for 9/11 and to prevent any further attacks on the USA and its interests. The five justices took an approach that the "Spirit" of "AUMF" is that we must "punish" those who were involved in the "acts of treacherous violence were committed against the United States and its citizens" (http://news.findlaw.com/hdocs/docs/terrorism/sjres23.enr.html)

According to these justices, what the Bush Administration has deemed "enemy combatants" are being held in Guantanamo Bay as "criminals". Now, since criminals such as those in Guantanamo Bay are usually deemed "war criminals", they are to face a tribunal or "war court". The court already order this to be done in the case of Hamdan v. Rumsfeld (2006). But the claim in this recent case was that since Guantanamo Bay is not on foreign land but on US "ground" in Cuba, those prisoners should stand trial in federal US courts for their "crimes".

Part of the Justices argument lays with the understanding that Congress never "declared war" against Al Qaeda, Osama Bin Laden, the Taliban, or such terrorists, but that they only gave President Bush military power to protect the US from further attacks and to track down the "criminals". They claim that the AUMF of 2001 resolution does not give power to the President to deem who is and who is not a war criminal or enemy combatant and that Congress does not have the right under the Constitution to hand over any of its Article 1, Section 8 powers under the US Constitution to the President.

The Justices who dissented (disagreed) with the majority (Scalia, Roberts, Thomas, Alito) took a "letter" of the law interpretation to the case. These Justices understood that AUMF of 2001 fell under Article 1, Section 8, Clause 11 which states Congress has the power to:

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water

Technically, according to the "letter" of the law, the AUMF of 2001 resolution can be seen as a "Letter of Marque", which is traditionally known to be similar to "warrant". Because of the balance of powers, Congress has the power to declare war and regulate and maintain the military. Since the President of the USA is the "Commander-in-Chief" of the military, it is Congress' job to tell the "head" of the military what to do. Part of the minority justices' dissent is based upon the idea that since Congress has the power to tell the President to conduct "all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons" (http://news.findlaw.com/hdocs/docs/terrorism/sjres23.enr.html). So, if the president deems these people "war criminals" or "enemy combatants" being held in Guantanamo Bay and since these people are not citizens or "constructive persons in society", these do not get to have the same rights and privileges as those who are on US soil and get to be protected by the US Constitution and Bill of Rights. It is the job of the US Congress, not the US Supreme Court, to redefine who is or isn't a "war criminal" or "enemy combatant". (US Constitution Article 1, Section 8, Clauses 9,10,12,14,15,16,17,18)

In summary, the "Spirit" versus "Letter" of the Law divide has brought such a decision down from the Justices on the US Supreme Court. Interesting, the same split of Justices occurred in the Dada v. Mukasey case, in which the court made allowances for those immigrants who overstay their visa to apply to stay in the US and not be deported. In the "Spirit" of the law, Justices Kennedy, Breyer, Souter, Ginsberg, and Stevens ruled that if the individual was initially here legally and is making an "attempt" to remain here legally, those persons should be helped in their desire to be here legally and/or become US Citizens. The "Letter" of the Law dissenters Roberts, Scalia, Thomas, and Alito stated that this is an immigration law issue, that laws and regulations already make this situation easily avoidable since it is specifically dependent upon the immigrant to within the timetable to make such appeals and efforts to stay in the US and/or become a citizen. They went as far to say this issue is "beyond" the realm of the US Supreme Court's domain.

This is not an issue of Conservatives versus Liberals. That is a lie from the media. The media's creation of these "battle lines" is debunked in other cases. For example, in the case Hustler Magazine v. Fallwell (1988) was an 8-0 decision in favor of the porno organization over the Christian minister. "Conservatives" William Rehnquist and Antonin Scalia were in the majority with "Liberals" William Brennan and John Paul Stevens. In the case Van Orden v. Perry (2005) in which the court upheld that the Ten Commandments' monument that was located outside of a government building should stay. In the majority in that decision were so called "Conservatives" Scalia, Thomas, and Rehnquist, along with "Liberals" Kennedy and Breyer. Finally, in the recent case United States v. Williams (2008), the court upheld the illegality of the pandering, solicitation, and creation of Child Pornography. "Liberal" justices such as Breyer, Stevens, and Kennedy joined "Conservative" justices Scalia, Roberts, and Thomas in the 7-2 majority.

There is a war of ideology in the chambers of the US Supreme Court. Unlike a similar one that occurs between Conservatives and Liberals, this is a war over how to interpret and apply the law and the US Constitution. The "Spirit" versus "Letter" is a debate that may evolve slightly from age to age, it wont be resolved anytime soon. The ideological war of Conservatism versus Liberalism is predicated upon different world views and is interwoven into our society and media. Do not let the media trick you into thinking the world is a Republican versus Democrat and/or Conservative versus Liberal war.

1 comment:

Jesse O. said...

Josh:

I enjoyed your comments and presentation of constitutional law. Check out the debate between Justices Antonin Scalia and Stephen Breyer on the meaning of the Constitution - http://www.acslaw.org/node/3909 Their amicability is evidence of how substantial the debates are between those advocating the letter and the spirit of our laws.