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Unanswered Questions in the D.C. Gun Case Decision
Obama's Supreme Court
Boumediene v. Bush: The Supreme Court Wins: America Loses
Graymail at Guantanamo
Mortgages in Name Only
"I Am The Constitution"
Justice Clarence Thomas: The Keeper of the Flame
The Supreme Court's Use of Foreign Law: Old Poison in Old Bottles
Harry Reid Channels Earl Warren
Judging Judge Alito
Republicans, Too, Can Steal Private Property
The Harriet Miers Ploy
William H. Rehnquist R.I.P.
Replace O'Connor With O'Connor?
Schumer Confesses to Not Understanding Constitution
The Next Supreme Court and the War on Terrorism
Confirmation Stakes
Specter Confesses to Not Understanding the Constitution
How Liberal Judges Subverted the Constitution
The Supreme Court and the War on Terrorism
UNANSWERED QUESTIONS IN THE DC GUN CASE DECISION
Justice Antonin Scalia’s opinion for the 5-4 majority of the Supreme Court in the recent landmark Second Amendment gun case, District of Columbia v. Heller, is a major contribution to American constitutional law.
It is at once a rich exposition of the Second Amendment’s historical context, a textbook demonstration of Originalist analysis of an important constitutional amendment, a surgical dissection of virtually every word of the amendment, and a point-by-point refutation of the dissents of Justice Stevens (for himself and Justices Souter, Ginsburg and Breyer) and Justice Breyer (for himself and Justices Stevens, Souter, and Ginsburg). (Apparently Justice Scalia is too much of a gentleman to have reminded the dissenters that they, too, employed an Originalist-type methodology, but doubtless only as a matter of convenience to justify their losing “militia” argument.)
Scalia’s opinion is also a ringing endorsement of the individual rights view of the Constitution and, in its rejection of the dissenters “militia” and “balancing” arguments, a repudiation of the collectivist approach to the enumerated and unenumerated rights of the first nine amendments. In this regard Scalia wrote that “the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.” In other words, when the founders wrote, and the states approved, the Second Amendment (as with the entire Bill of Rights), they removed from the other two branches all power to prevent American citizens from using firearms to defend their homes.
Also very important is that Scalia’s opinion makes clear that subsidiary questions about the scope of the Second Amendment right enunciated by the Court in Heller will in the future be decided by Originalist principles, not, as Justice Breyer’s dissent argued, on the basis of a cultural/social balancing act, with the justices holding the scale.
Because Heller dealt with one of the most sensitive constitutional/cultural issues in America today, for the past several days the print, broadcast, and Internet media have understandably been saturated with news and commentary about the decision.
Unfortunately, much of it has been over the top, like the statement by the founder of the Second Amendment Foundation: “This ruling also makes it abundantly clear that laws which ban the possession of firearms, or make it simply impossible through regulation for citizens to exercise their right to keep and bear arms, are unconstitutional and cannot stand.”
According to him, then, under the Heller decision paroled armed robbers can own machine guns.
Despite the hyperbole, SAF’s founder really knows what Heller actually decided, but many others—among them most laypersons and even many lawyers—do not. The reason is that like other federal and state appellate courts the Supreme Court of the United States can decide only the specific issue before it, and in Heller that was very limited.
To make the point, here’s an extreme example: In a case presenting the question of whether it’s cruel and unusual punishment to deny vegetarians special food in prison, the Court could not properly rule on the constitutionality of capital punishment.
In many appellate court opinions, however, one often finds rambling discourses about all sorts of things that have little or nothing to do with the facts and law of the case at hand, let alone the actual issue to be decided: irrelevant facts, extraneous history, faulty reasoning, inapplicable precedents.
Sometimes, an appellate opinion will even purport to make a ruling despite it lacking any basis in the facts of the case and not resolving the actual issue before that court.
Lawyers often refer to these discourses and rulings as obiter dicta (from the Latin, meaning “a remark in passing; a casual observation”; or in law, “something said by the judge while giving judgment, that is not essential to the decision”).
Thus, in the vegetarian prisoner example, if Justice Souter’s opinion drifted into a discussion about the evils of Seventeenth Century English prisons, and then roamed into Fifteenth Century capital punishment, and then segued into how the Eighth Amendment probably barred capital punishment, all of that discourse would be (among other things!) dicta.
It’s important to understand this phenomenon of dicta because it underscores the necessity of focusing narrowly on exactly what appellate courts are being asked to decide.
Now to the Heller decision.
The first thing Justice Scalia did in his opinion was to lay out what the case was all about. He explained what the District of Columbia law prohibited, what the aggrieved citizen (Mr. Heller) was seeking, what decision the trial court made, and how the Court of Appeals viewed the case and what it ruled. (My comments are bracketed. Asterisks indicate omissions of at least one sentence.)
The District of Columbia generally prohibits the possession of handguns. It is a crime to carry an unregistered firearm, and the registration of handguns is prohibited. * * * Wholly apart from that prohibition, no person may carry a handgun without a license, but the chief of police may issue licenses for 1-year periods. * * *
District of Columbia law also requires residents to keep their lawfully owned firearms, such as registered long guns [e.g., rifles], “unloaded and disassembled or bound by a trigger lock or similar device” unless they are located in a place of business or are being used for lawful recreational activities. * * *
. . . Dick Heller is a D. C. special police officer authorized to carry a handgun while on duty at the Federal Judicial Center. He applied for a registration certificate for a handgun that he wished to keep at home, but the District refused. He thereafter filed a lawsuit in the Federal District Court for the District of Columbia seeking, on Second Amendment grounds, to enjoin the city from enforcing [1] the bar on the registration of handguns, [2] the licensing requirement insofar as it prohibits the carrying of a firearm in the home without a license, and [3] the trigger-lock requirement insofar as it prohibits the use of “functional firearms within the home.” * * *
The District Court dismissed [Heller’s] complaint . . . .
The Court of Appeals for the District of Columbia Circuit, [narrowly] construing his complaint as seeking the right to render a firearm operable and carry it about his home in that condition only when necessary for self-defense [my emphasis] reversed . . . . It held that the Second Amendment protects an individual right to possess firearms and that the city’s total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right. (My emphasis)
Based on the D.C. law’s prohibitions, Heller’s application to register a handgun, the trial court’s decision, and the Court of Appeals’ construction of what the issue was and its resolution, the first sentence of Justice Scalia’s opinion was: “We consider whether a District of Columbia prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution.” (My emphasis.)
Well, not exactly.
A mere two paragraphs later Scalia would write that the Court of Appeals had held that “the Second Amendment protects an individual right to possess firearms and that the city’s total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right.” (My emphasis.) So why was his first sentence limited to “usable handguns”?
In our search for the issue actually before the Heller Court, and to understand what that case actually decided, we have to look to the penultimate paragraph of Justice Scalia’s opinion for the Court, some sixty-three pages later: “In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.” (My emphasis.)
This, and only this, is what the Supreme Court majority decided in District of Columbia v. Heller: the handgun ban and the inoperative requirement for home possession.
Because Heller is hedged by those four elements—“home,” “lawful,” “immediate,” “self-defense”—and, as I show below, because other important questions remain unanswered, judicial interpretation of the Second Amendment rather than ending with Heller has just begun.
For example, Part III of Justice Scalia’s opinion states that:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. * * * For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. * * * Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. We also recognize another important limitation on the right to keep and carry arms. [An earlier Supreme Court case] said, as we have explained, that the sorts of weapons protected were those “in common use at the time [1791].” * * * We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” (My emphasis.)
Thus we are reminded that “like most rights” the gun “right” acknowledged by the Heller majority can be regulated, even restricted. It is regulation and restriction—and definitions of “home,” “lawful,” “immediate,” and “self-defense”—which will give rise to the many Second Amendment cases yet to come, concerning who can possess firearms, what kind of weapons they can be, where guns can be carried, when they can be sold and to whom, whether outdoors they must be in plain view, and more.
As important as are these questions, and the many others implied in them, there are two more that are even more so.
One is what “standard of review” is the court to apply to, say, a New York law, requiring all handguns carried outdoors to be concealed lest the public be scared by being exposed to all that hardware.
Although “standard of review” is a technical question for judges and constitutional lawyers, its answer could determine just how much of a gun right really exists. If the courts’ “standard of review” of gun laws is very deferential, such a New York law would probably be upheld because the state had a good reason to enact it, and the regulation/restriction did not bite too deep into the Heller-established right. If on the other hand, the courts’ “standard of review” is much stricter and the Heller-established right is really a solid, virtually untouchable right, such a New York law would be considered too regulatory/restrictive and held unconstitutional.
As important as is this standard of review question, an even more vital Second Amendment issue is buried in footnote 23 of Justice Scalia’s opinion. It raises the “incorporation” issue (see www.henrymarkholzer.com at “50 of the Worst S/Ct Decs” in the Table of Contents under the case of Gitlow v. New York, for a discussion of the Incorporation Doctrine).
In footnote 23 Justice Scalia’s majority opinion expressly left open “a question not presented by this case”—one, when answered, will be at least as important as the Heller decision itself: Does the Second Amendment apply to the states by “incorporation” through the Fourteenth Amendment?
Given the virtually wholesale incorporation of the entire Bill of Rights to the states already through the Due Process Clause of the Fourteenth Amendment—e.g., speech, press, religion, counsel, search and seizure, self-incrimination—it is likely that the answer to the Second Amendment “incorporation” question will be affirmative. If so, given the many unanswered questions raised by Heller, and all the state anti-gun legislation already on the books, Second Amendment litigation could well become a growth industry for constitutional lawyers.
OBAMA’S SUPREME COURT
Last week’s Supreme Court 5-4 decision in Boumediene v. Bush—holding that alien unlawful enemy combatants have a constitutional right to use habeas corpus in American federal courts to challenge their detention—came as no surprise to those of us who have watched the “Living Constitution” virus metastasize since that ideological disease first began to infect the judiciary during the Warren Court era.
Those who subscribe to Living Constitution ideology believe that the founding principles of this Nation are passé, that the Declaration of Independence’s ringing endorsement of limited government and individual rights is outdated, that the Constitution’s creation of a representative republic is from a long past moment in history, and that the Bill of Rights is not a restraint on government but rather a source of newly invented “rights.”
The Living Constitution’s partisans’ high priest was the late Warren Court era Supreme Court Justice William J. Brennan, Jr. According to him, in a 1985 speech, the Constitution “embodies the aspiration to social justice, brotherhood, and human dignity that brought this nation into being. * * * Our amended Constitution is the lodestar for our aspirations. Like every text worth reading, it is not crystalline. The phrasing is broad and the limitations of its provisions are not clearly marked. Its majestic generalities and ennobling pronouncements are both luminous and obscure.” (My emphasis.)
Brennan was saying that: the Constitution, rather than delegating specific powers to the federal government (Articles I, II and III), respecting state sovereignty (Tenth Amendment), and recognizing the existence of enumerated (Amendments I-VIII) and unenumerated (Amendment IX) rights, instead embodies amorphous “aspirations.” Whose aspirations, Brennan did not inform us.
But Brennan did tell us what those aspirations are: “social justice, brotherhood, and human dignity.”
We’ve learned the hard way that by “social justice” Brennan meant that the Supreme Court would allow Minnesota to rewrite mortgage contracts to benefit defaulting farmers (Home Building & Loan Association v. Blaisdell). “Brotherhood” would permit law schools to racially discriminate in the name of diversity (Grutter v. Bolinger), and Roe v. Wade would foster murder of the unborn to protect privacy.
After his paean to “social justice, brotherhood, and human dignity,” Brennan’s 1985 speech continued: “When Justices interpret the Constitution they speak for their community, not for themselves alone. The act of interpretation must be undertaken with full consciousness that it is . . . the community’s interpretation that is sought. * * * But the ultimate question must be, what do the words of the text mean in our time. For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. * * * Our Constitution was not intended to preserve a preexisting society but to make a new one, to put in place new principles that the prior political community had not sufficiently recognized.” (My emphasis.)
Let’s analyze Brennan’s startling statements piece by piece.
“The phrasing is broad and the limitations of its provisions are not clearly marked.” Doubtless Brennan was referring, for example, to Article I “(The House of Representatives . . . shall have the sole Power of impeachment”), Article II (“The executive Power shall be vested in a President of the United States”), Article III (“The judicial Power of the United States, shall be vested in one supreme Court”), Article IV (“No new State shall be formed or erected within the Jurisdiction of any other State”), Article V (“No State, without its Consent, shall be deprived of its equal Suffrage in the Senate”), Article VI (“No religious Test shall ever be required as a Qualification to any Office or public Trust under the United States and Article VII (“The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States ratifying the Same”)—and of course in the Bill of Rights, for example, the First Amendment (“Congress shall make no law”). (My emphasis.)
If this “phrasing is broad” and if these “limitations . . . are not clearly marked,” then nothing in the Constitution and Bill of Rights is—which is exactly what Brennanites want, as they worship their Living Constitution.
“When Justices interpret the Constitution they speak for their community, not for themselves alone. The act of interpretation must be undertaken with full consciousness that it is . . . the community’s interpretation that is sought.” Here, Brennan was wrong on two counts. Putting aside what “community” the judges are supposed to speak for (village, town, city, county, state, country, hemisphere, continent, UN, EC, NATO?), proper constitutional interpretation speaks for what the words say and what they meant at the time they were written, and to the men who wrote them. Nor are today’s justices supposed to speak “for themselves alone.” Who cares what they think, compared to the Constitution’s words and their meaning?
“What do the words of the text mean in our time,” Brennan asks about the Constitution. Thus, in the world of the Living Constitution, the “in our time” requirement that the President be at least 35 years of age should really mean 60 because, after all, life spans are much longer today than in 1787. Or the words “[n]o state shall impair the obligation of contracts” should mean, “in our time,” except when farmers need debt relief—as the Court held in Home Building & Loan Association v. Blaisdell.
“The genius of the Constitution,” Brennan told us, “rests not in any static meaning it might have had . . . .” “Static,” in Brennan’s context, is of course a pejorative term, suggesting that anything fixed and immutable is somehow undesirable—though Brennan would doubtless not see the First Amendment as undesirably static.
“In a world that is dead and gone . . . .” Putting aside the melodrama of this passage, if, as Brennan says, the world of the Framers is “dead and gone”—where government was limited, individual rights paramount, federalism understood, state sovereignty protected—that is all the more reason to now interpret the Constitution in accordance with the principles that ruled in those bygone days.
“But in the adaptability of its great principles . . . .” It is facially contradictory for Brennan in one breath to condemn “static meaning” and in the next to laud “great principles,” because if principles are indeed great, like not bearing false witness, their strength is in being “static.”
“To cope with current problems and current needs.” Immediately after the Civil War, when the Fourteenth Amendment was adopted, there was no “current problem” about some private land being burdened by racially restrictive covenants, and there was at that time no “current need” for Negroes to move into formerly white suburbs. However, such a problem/need did arise after World War II. Thus, according to Brennan, it was appropriate that the Equal Protection Clause, which was never intended to invalidate concededly valid private land contracts, should be employed to hold unconstitutional judicial enforcement of those covenants. Brennan should have asked the Japanese-Americans who were shipped off to internment camps after Pearl Harbor if they thought the litmus paper of constitutional interpretation should be “current problems and current needs.” Or the dead American draftees who perished in Vietnam. Or, for that matter, Negro slaves on the day the Dred Scott decision came down.
“Our Constitution,” Brennan concludes, “was not intended to preserve a preexisting society but to make a new one, to put in place new principles that the prior political community had not sufficiently recognized.”
Ah Ha! The “static meaning” that Brennan decried earlier in his speech was apparently not intended to be static after all.
Nor, apparently, was it intended that the clear text of the Bill of Rights should preserve the individual rights guaranteed by the Constitution’s first nine amendments.
In effect, Brennan would have us believe that the Constitution was a mere outline for a script yet to be written by judges about “new principles,” which the Framers were apparently too dull to have “sufficiently recognized”—“new principles” like sterilizing the imbeciles, outlawing capital punishment, inventing “prisoners’ rights,” imposing racial quotas, murdering the unborn, restricting political speech, and much more.
William J. Brennan, Jr., like many of his colleagues then and now (today, think Justices Stevens, Kennedy, Souter, Ginsburg, Breyer), and countless other federal and state judges throughout the United States, are not just liberals, which would be bad enough. They are, philosophically, collectivists and statists who believe with the orthodoxy of zealots that “rights” are created by society and its Platonic guardians, the judges, and that through the exercise of government power utopian goals can be achieved without regard to constitutional principles or the moral code that underlay them at the Founding.
In short, Brennan and his ilk are utterly indifferent to the proper role of judges, and see themselves as uber-legislators imposing their personal policy preferences on the unwashed in the guise of constitutional interpretation.
Which bring us to the current election and presumptive Democrat Party nominee, Barack Obama.
Putting aside that Obama is plainly a white-hating, white-using radical, and probably a Marxist Elmer Gantry, it needs to be said that if the fate of the federal judiciary, let alone the Supreme Court, falls into his hands (especially with a compliant Senate), our Nation will be crippled in its domestic battle against socialism and our foreign war against Islamofascism.
This is not a charge that I make lightly, but rather one rooted in the words of Obama himself.
On July 17, 2007, Obama made a speech in Washington, D.C. to the country’s leading abortion-meisters, “Planned Parenthood.” In the words of NBC reporter Carrie Dean, Obama not only “leveled harsh words at conservative Supreme Court justices,” but “he offered his own intention to appoint justices with ‘empathy’.”
“Empathy,” according to Webster’s New World Dictionary of the American Language, is “the projection of one’s own personality into the personality of another in order to understand him better; ability to share in another’s emotions or feelings.”
Thus, we have been unmistakably warned that Obama will appoint Supreme Court justices who will not honestly interpret the Constitution, Bill of Rights, and Fourteenth Amendment—let alone on the basis of what they say and meant to those who wrote them—but who, instead, will project their own personalities into others to understand them better; justices who can share in those others’ emotions or feelings.
And who might Obama’s empathy-receivers be?
Obama himself told us in that same 2007 Planned Parenthood speech: “We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.” (My emphasis.)
It could not be clearer what this pretender to the presidency of the United States has admitted.
So much for the classical liberal philosophy that was at the founding’s core and in its fundamental documents. From now on, constitutional interpretation Obama-style is to be through the eyes of whom he sees as society’s alleged victims.
Obama’s confession drops Brennan’s Living Constitutionalism into yet a lower rung of hell. His confession reveals that while the Brennanites fed the Living Constitution’s voracious appetite in order to achieve the amorphous goals of “social justice, brotherhood, and human dignity,” Obama will nurture the beast with what’s left of limited government and individual rights, sll in the name of “empathy”—a code word for something much darker: sacrifice of constitutionalism to the needs of society’s perceived victims.
This perversion of America’s essence—individuals as supreme, with government as their servant—is Brennanism squared. While our Nation has been able to survive Brennanism—though with the recent Guantanamo decisions, especially Boumediene v. Bush, who knows?—we will not be able to survive Obama-appointed Supreme Court justices.
Boumediene v. Bush: The Supreme Court Wins, America Loses
As the world has just learned, the Supreme Court of the United States ruled 5-4 yesterday (Kennedy, Stevens, Souter, Ginsburg, Breyer/Roberts, Scalia, Thomas, Alito) that “for the first time in our Nation’s history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war.” (Scalia, J., dissenting.)
There is much that can be said about the Boumediene v. Bush decision:
- How the Court was able to review the case, in light of its long-standing practice of waiting until lower federal courts have an opportunity to rule.
- How the majority torturously construed the English and American constitutional history of habeas corpus.
- How the majority dishonestly eviscerated its controlling precedent on habeas corpus.
- How habeas corpus was never intended to apply, and never did apply, to unlawful enemy combatants captured outside the United States.
- How the processes established by the political branches—Congress and the President—for handling unlawful enemy combatants more than satisfied the Constitution.
- How the majority was able to invalidate the Detainee Treatment Act.
- How the decision will severely compromise the military’s effectiveness in fighting terrorism.
- How the judicial usurpation of presidential war-powers has now become nearly complete.
- How this contra-constitutional coup has been engineered by a razor thin 5-justice majority of the Court, three of them having been appointed by Republican presidents (Stevens: Ford, Kennedy: Reagan, Souter: Bush I) and the other two by Republican bandwagoneers in the Senate (Ginsburg and Breyer).
All this and more—important as it is to our Constitution, our Nation, and our national security—will be discussed at length in the days to come, as Justice Kennedy’s majority opinion in Boumediene receives the scrutiny and obloquy that it deserves. But those discussions will have to wait, because in this election year there is even a more fundamental aspect of the decision that needs to be considered.
In his dissenting opinion, Chief Justice Roberts said this about the now-unconstitutional Detainee Treatment Act (“DTA”):
The majority rests its decision on abstract and hypothetical concerns. Step back and consider what, in the real world, Congress and the Executive have actually granted aliens captured by our Armed Forces overseas and found to be enemy combatants:
· 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. Some 38 detainees have been released as a result of this process.
· The right, before the [Combatant Status Review Tribunals], to testify, introduce evidence, call witnesses, question those the Government calls, and secure release, if and when appropriate.
· The right to the aid of a personal representative in arranging and presenting their cases before a [Combat Status Review Tribunal].
· Before the [United States Court of Appeals for the District of Columbia Circuit], the right to employ counsel, challenge the factual record, contest the lower tribunal’s legal determinations, ensure compliance with the Constitution and laws, and secure release, if any errors below establish their entitlement to such relief.
Roberts continued, as he worked toward exposing what the Supreme Court’s majority was really up to:
In sum, the DTA satisfies the majority’s own criteria for assessing adequacy. This statutory scheme provides the combatants held at Guantanamo greater procedural protections than have ever been afforded alleged enemy detainees—whether citizens or aliens—in our national history.
Then Roberts asked: “So who has won?”
His answer was: “Not the detainees. The Court’s analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the [United States Court of Appeals for the District of Columbia Circuit]—where they could have started had they invoked the DTA procedure. Not Congress, whose attempt to “determine— through democratic means—how best” to balance the security of the American people with the detainees’ liberty interests . . . has been unceremoniously brushed aside. Not the Great Writ [of habeas corpus], whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges.” (My emphasis.)
If the detainees have not won, if Congress has not won, if the principle of habeas corpus has not won, if the rule of law has not won, if the American people have not won—and, one can add, if the Commander-in-Chief has not won—who has?
Earlier in his dissent Chief Justice Roberts suggested the answer, writing that the Boumediene decision is “not really about the detainees at all, but about control of federal policy regarding enemy combatants,” and that “[a]ll that today’s opinion has done is shift responsibility for those sensitive foreign policy and national security decisions from the elected branches to the Federal Judiciary.”
More specifically, in the last four words of Justice Roberts’s dissent about who has won he names names: “unelected, politically unaccountable judges.”
Justice Scalia, too, sees the decision for what it is and surely understands who has won, writing in his dissent that:
Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension [of habeas corpus] Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus(and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.
For this constitutional and national security debacle, ultimately we have to thank not only the 5-justice majority but also justice-nominating and justice-confirming Republicans in the White House and Senate.
The Boumediene decision is thus a grave cautionary lesson of what is at stake in this presidential election: nothing less than the future of the Supreme Court perhaps for another generation, and with it the security of the United States of America.
In the last sentence of his dissent Justice Scalia writes: “The Nation will live to regret what the Court has done today.” Surely we will regret it—if the Nation lives.
Graymail at Guantanamo
Counterpoint has been the view, ascendant in the early Bush Department of Justice, that neither domestic criminal law nor Geneva Conventions are applicable to Islamic terrorists, who are illegal enemy combatants and should be dealt with accordingly.
Unfortunately, this conflict has not yet been definitively resolved.
For example, as David B. Rifkin, Jr. and Lee A. Casey have written recently in the Wall Street Journal, “in a series of cases . . . the U.S. Supreme Court has upheld many [administration] positions: that the country is engaged in an armed conflict; that captured enemy combatants can be detained without criminal trial during those hostilities; and that (when the time comes) they may be punished through the military, rather than the civilian, justice system.”
Fine. But on the other hand, the “criminal law” mindset has been responsible for one battle after another that the Bush Administration has to fight in its efforts to deal with al-Qaeda terrorism. Examples abound: the Patriot Act, warrantless communications monitoring, rendition, harsh interrogation, military commissions, secret prisons, judicial review. The Supreme Court has ruled that Guantanamo prisoners have a (constitutional?) right to challenge their status as enemy combatants in an administrative hearing and to some sort of “due process.”
Unfortunately, the “terrorist” versus “criminal” conflict persists, as a ruling last week at Guantanamo dangerously demonstrates.
The ruling involved bin Laden chauffer-bodyguard Salim Ahmed Hamdan who, with the aid of American lawyers, was responsible a few years ago for inducing the Supreme Court, albeit narrowly, to invalidate the Bush-created military commissions.
Hamdan and his lawyers are now playing, and so far succeeding at, the reprehensible game of “graymail” a “damned-if-you-do, damned-if-you-don’t" litigation tactic. It consists of making a request of one’s adversary for witness interviews and documentary material that he does not want to, or can not, provide. “Graymail” is a shoddy ploy typically used by lawyers, especially those who represent criminal defendants, and by chairmen of democrat-controlled committees in Congress.
For example, in the case of Bush nominee Miguel Estrada to a federal appeals court, Senate democrats employed the graymail tactic by seeking confidential documents generated by Estrada while serving as a lawyer in the Solicitor General’s office of the Department of Justice—documents having little or no relevance to decisions that would be made by a federal court of appeals judge who takes a solemn oath to uphold the Constitution and laws of the United States.
The dilemma in the Estrada case for the Executive Branch, and the weapon the democrats’ demand gave them, was this: Either the Department of Justice complied with the Senate democrats’ demand, thus handing them a veritable can of red herring documents they could then use to manufacture yet more excuses to impugn Estrada’s ideological fitness to serve on the DC Circuit, or the government refused to hand over the confidential documents, thus enabling the democrats to complain loudly, as they did, that Estrada and his administration supporters had something to hide.
Graymail has often been used in national security cases, where in the “discovery” stage of the proceedings the defense seeks highly sensitive information so that the government is impaled on the horns of a dilemma: comply with the request, and risk compromising important secrets (which the government is understandably unwilling to do), or refuse to comply, and risk dismissal of the case (which the government certainly doesn’t want). There are countless examples, among them the case of the Los Alamos lab’s Wen Ho Lee and various criminal cases involving rogue FBI, NSA, and CIA agents.
Now, we can expect graymail to become a staple of proceedings against enemy combatants at military tribunal proceedings in Guantanamo.
On February 7, 2008, Hamdan’s lawyers appeared before military judge Navy Captain (Army and Marine Corp rank: Colonel) Keith Allred.
According to an Army report of the proceedings, the defense asked Allred
to compel the prosecution to turn over records of Hamdan’s confinement in Afghanistan during the period proceeding 2002 before he was detained in Guantanamo Bay. “The prosecution seemed to have no record of the interrogation SOP’s [Standard Operating Procedures] in place during Hamdan’s detainment . . . they have no record of detainee treatment . . . no record of guards’ instruction . . . no records of what camp Hamdan was in during that period,” Charles Swift, lead defense attorney, said. Chief Prosecutor Army Col. Larry Morris stated that, “The missing 2002 records are local detention records that deal with issues of confinement such as diet, exercise, hygiene and the location of the detainee. Prosecutors are confident that every statement made by Mr. Hamdan and every interrogation record was turned over to the defense at least a year ago.” Defense Counsel Harry Schneider also requested access to high value detainees and individuals who were present during Hamdan’s interrogation shortly after his capture in Afghanistan. Prosecutors argued that since the video memorialized the circumstances of how Hamdan was interrogated, producing the individuals involved in the interrogation was unnecessary. However, the prosecution agreed to provide access to a linguist who was present during the interrogation that the prosecution planned to call as a witness during trial. Although the defense plans to meet with this witness, Swift still claimed that the prosecution’s failure to offer others involved in the interrogation prevents the defense from checking the veracity of other witnesses. The defense presented a similar argument in their request to meet with high-value detainees being held in detention facilities here who they believe could prove that Hamdan was not involved in terrorist activities while employed as bin Laden’s driver. “The prosecution has taken the position that the high-value detainees that Mr. Hamdan is accused of conspiring with have nothing valuable to say, but we expect them to deny that Hamdan was a member of al-Qaida,” said Swift. “We are hopeful that the judge will give us access to these high-value detainees.” During a press conference, Swift said the prosecution’s failure to produce particular documents prevents them from properly filing motions and adequately preparing their case. However, Army Col. Larry Morris, chief prosecutor, said the prosecution has done what the law requires, which is to provide all requested evidence that is material and relevant to the defense’s case.” (My emphasis.)
Observe what is going on here. Hamdan, an enemy combatant—not a prisoner of war and not a domestic criminal defendant—is charged in a military tribunal with being an al Qaeda operative who was close to Osama bin Laden.
His lawyers want wholly irrelevant records that they know are not available—even though, as in domestic criminal cases, “every interrogation record was turned over to the defense at least a year ago”
His lawyers also want access to (1) “high value detainees” and (2) “individuals who were present during Hamdan’s interrogation shortly after his capture in Afghanistan.” In other words, as in domestic criminal cases, they want access to two categories of witnesses. Category (1), the euphemistically characterized “high value detainees,” are the worst of the worst—sixteen prisoners isolated at Guantanamo in a prison within a prison under top secret circumstances. They include Khalid Sheikh Mohammed, the alleged mastermind of the September 11, 2001 attacks. Category (2) doubtless includes CIA operatives.
In short, graymail squared!
And it’s beginning to work, because the judge gave Hamdan’s lawyers what is surely the thin edge of the graymail wedge. On April 30th, thanks to Judge Allred’s myopia, he succeeded in making the Guantanamo enemy combatant military tribunals look more and more like domestic criminal trials.
According to the Miami Herald, Allred ruled that Hamdan “is permitted to sign a personal plea to alleged senior al Qaeda leaders segregated on this base—despite a U.S. government claim that it would breach national security.” Allred was not persuaded by Justice Department attorney John Murphy’s warning that allowing Hamdan to write a note to Khalid Sheik Mohammed and others could expose “grave national security secrets.” Allred concluded that there was “no inherent danger” in letting Hamdan write to his now-pen pals requesting that they provide written testimony prior to his scheduled June 2, 2008 trial. The idea is that Hamdan can seek the “worst of the worst’s” cooperation with his lawyers in support of their defense that “he was not a key al Qaeda insider but a driver on the fringes of the terror network.”
The Miami Heald reported also that “Allred had earlier ordered the government to let Hamdan's lawyers submit written questions to Camp 7 captives, in Arabic, through a government security officer with authority to censor national security secrets from the answers” but “[n]o replies have emerged. Now the lawyers want Hamdan to write the men, in effect saying, ‘This is me. Please answer my lawyers’ questions.”
Perhaps Hamdan could write: “Khalid, this is me, your ‘ole terrorist buddy from Afghanistan, Pakistan, Waziristan. I’m just down the road here in another detention facility, eating well, praying to Allah, confounding my military guards, consulting with my America lawyers, having the Court rule military commissions illegal. We’re asking for all kinds of stuff the infidels can’t give us, and when they don’t that will really gum up these proceedings. What a country!”
We better pray that Hamdan’s lawyers don’t next make an application to Allred for bail.
Mortgages in Name Only
Recent months have seen both sides of the federal aisle, and their candidates for the presidency, trying to outdo each other in providing relief for the “victims” of “predatory” lending practices by banks and other lenders.
We’ll put aside for the time being the several fascinating issues that arise from the tulip craze real estate buying binge of the past several years—e.g., fraudulent applications, blind-eye lending decisions, indefensible leverage, the true definitions of “victim” and “predatory”—and focus instead on what may come next, after the government’s jawboning and arm-twisting of mortgage holders proves unavailing and foreclosures continue unabated.
That focus takes us to August 1, 1928.
Mr. and Mrs. John H. Blaisdell sat down with the Home Building & Loan Association and mortgaged a two-story residential building in Minneapolis, Minnesota.
A mortgage is simply another name for a certain kind of contract. The owner (or would-be) owner of real property (the “mortgagor”) pledges it to a lender (the “mortgagee”) as security for a loan. Usually, the proceeds of the loan are used to purchase the property. A common example is the financing arrangement for the purchase of a home. (There can be “chattel” mortgages in personal property, as with financed purchases of automobiles.)
The Blaisdell’s mortgage (i.e., contract) with their lender contained customary, rather simple terms.
In return for putting up their property as collateral, the lender loaned the Blaisdells money. The Blaisdells agreed to repay it in regular monthly installments of principal and interest.
If the Blaisdells didn’t make the payments—if they defaulted on the contractual loan—the lender could protect its creditor position by foreclosing on the property and selling it at auction.
This is exactly what’s happening today across the country: loan contracts are being breached because of non-payment, and lenders are availing themselves of the legal remedy of foreclosure in order to protect, at least to some extent, the money they loaned.
If the foreclosure sale netted more than the amount Home Building & Loan Association was owed, the excess proceeds would go to the Blaisdells. If it netted less, the borrowing Blaisdells would owe the lender the difference (a “deficiency”).
Another provision of the mortgage contract—inserted there by operation of Minnesota law—was a one-year redemption period following a foreclosure sale, during which the Blaisdells could reacquire the property for the price at which it had been sold.
The buyer at the foreclosure sale could get good title only if the one-year redemption period had expired without the Blaisdells having exercised their statutory right of redemption. (Let’s also put aside for now a consideration of by what right the Minnesota legislature had a right to enact a law requiring private contracts to include a right of redemption—a power whose source is far from clear or defensible.)
For a few years the Blaisdells made their regular mortgage payments. Then they stopped.
A foreclosure sale followed, and the lender “bought” the property for exactly the amount then owed on the mortgage. The sale yielded no excess proceeds for the Blaisdells, and no deficiency was owed by them to Home Building & Loan Association which now owned the property subject to the Blaisdell’s one-year statutory right of redemption.
Because the foreclosure sale had occurred on May 2, 1932 the Blaisdells would have had until May 2, 1933 to redeem the property.
But then, a few weeks before that date, providence, in the guise of the State of Minnesota Legislature, intervened. On April 18, 1933, a mere fourteen days before the one-year redemption period was set to expire, the state enacted the “Minnesota Mortgage Moratorium Law”.
The state—not the parties, the Blaisdells and Home Building & Loan Association—had rewritten their mortgage contract.
Why?
As the Minnesota legislature explained,
“Whereas, the severe financial and economic depression existing for several years past has resulted in extremely low prices for the products of the farms and the factories, a great amount of unemployment, an almost complete lack of credit for farmers, business men and property owners and a general and extreme stagnation of business, agriculture and industry, and
“Whereas, many owners of real property, by reason of said conditions, are unable, and it is believed, will for some time be unable to meet all payments as they come due of taxes, interest and principal of mortgages on their properties and are, therefore, threatened with loss of such properties through mortgage foreclosure and judicial sales thereof, and
“Whereas, many such properties have been and are being bid in at mortgage foreclosure . . . sales for prices much below what is believed to be their real values and often for much less than the mortgage or . . . indebtedness, thus entailing deficienc[ies] . . . against the mortgage[es] . . . and
“Whereas, it is believed, and the Legislature of Minnesota hereby declares its belief, that the conditions existing as hereinbefore set forth has created an emergency of such nature that justifies and validates legislation for the extension of the time of redemption from mortgage foreclosure and execution sales and other relief of a like character; and
“Whereas, The State of Minnesota possesses the right under its police power to declare a state of emergency to exist, and
“Whereas, the inherent and fundamental purposes of our government is to safeguard the public and promote the general welfare of the people; and
“Whereas, Under existing conditions the foreclosure of many real estate mortgages by advertisement would prevent fair, open and competitive bidding . . . and
“Whereas, it is believed, and the Legislature of Minnesota hereby declares its belief, that the conditions existing as hereinbefore set forth have created an emergency of such a nature that justifies and validates changes in legislation providing for the temporary manner, method, terms and conditions upon which mortgage foreclosure sales may be had or postponed and jurisdiction to administer equitable relief in connection therewith may be conferred upon the District Court, and
* * *
“Section 1. Emergency Declared to Exist.-In view of the situation . . . the Legislature of the State of Minnesota hereby declares that a public economic emergency does exist in the State of Minnesota”
Sound familiar? Just substitute for the Minnesota legislature the Congress (and President) of the United States, and these words could have been written today.
In order to implement the state’s newly declared mortgagor/debtor-relief policy, the Minnesota Mortgage Moratorium Law mandated that foreclosure sales could be postponed, and the redemption period extended until May 1, 1935—two years after the Blaisdells could have redeemed under the law that existed when they made their contract with the lender.
Taking advantage of the Moratorium Act, the Blaisdells asked a Minnesota court to enter an order extending their redemption period.
The court—apparently recognizing that Article I, Section 10, of the federal Constitution expressly prohibits a state from enacting any law “impairing the obligation of contracts,” and realizing that the Moratorium Act did just that—refused to grant the extension.
So the Blaisdells appealed.
The Minnesota Supreme Court reversed the lower court and granted the two year extension (conditioned on the Blaisdells paying $40.00 “rent” each month).
Consider what had happened. The Blaisdells had put up their real estate as security for a loan from Home Building & Loan Association. The loan had been defaulted. The lender had to repurchase the property, and then wait almost a year while the statutory redemption period ran out before it could have clear title. Near the end of that period, the Minnesota Legislature rewrote the mortgage contract, the net result being that the lender would have to wait a minimum of another two years before obtaining the property—all the while receiving “rent” instead of the contractually-agreed mortgage payments.
We know why the legislature enacted the Moratorium Act.
What was the Supreme Court of Minnesota’s rationale for upholding it? According to the Supreme Court of the United States, which we will get to in a moment, it was upheld because the act was
“ . . . an emergency measure. Although conceding that the obligations of the mortgage contract were impaired [despite the prohibition of Article 1, Section 10], the [Minnesota Supreme Court] decided that what it thus described as an impairment was, notwithstanding the contract clause of the federal Constitution, within the police power of the state as that power was called into execution by the public economic emergency which the Legislature had found to exist.”
Actually, the Supreme Court of Minnesota had been even more explicit, and arrogant, about what had motivated its decision:
“In addition to the weight to be given the determination of the Legislature that an economic emergency exists which demands relief, the court must take notice of other considerations. The members of the Legislature come from every community of the state and from all the walks of life. They are familiar with conditions generally in every calling, occupation, profession, and business in the state. Not only they, but the courts must be guided by what is common knowledge. It is common knowledge that in the last few years land values have shrunk enormously. Loans made a few years ago upon the basis of the then going values cannot possibly be replaced on the basis of present values.
Justice Olsen of the Minnesota Supreme Court, in a concurring opinion, added the following:
“The present nation wide and world wide business and financial crisis has the same results as if it were caused by flood, earthquake, or disturbance in nature. It has deprived millions of persons in this nation of their employment and means of earning a living for themselves and their families; it has destroyed the value of and the income from all property on which thousands of people depended for a living; it actually has resulted in the loss of their homes by a number of our people, and threatens to result in the loss of their homes by many other people in this state; it has resulted in such widespread want and suffering among our people that private, state and municipal agencies are unable to adequately relieve the want and suffering, and Congress has found it necessary to step in and attempt to remedy the situation by federal aid. Millions of the people’s money were and are yet tied up in closed banks and in business enterprises.”
In other words, by “common knowledge” things were rough for mortgagors—just as they are today for some, especially those who tried to game the system by purchasing homes without adequate means to pay for them in the expectation that the bubble would everlastingly get bigger and bigger and never burst.
But times were tough for Home Building & Loan Association (and other lenders) too, so it took the case to the Supreme Court of the United States to protect itself and its depostitors.
There, Chief Justice Charles Evans Hughes authored the Court’s majority opinion upholding the constitutionality of the Minnesota Mortgage Moratorium Law.
A signification portion of his opinion consists of a survey of some of the Court’s previous cases, on the basis of which Hughes enunciated a startlingly candid conclusion:
“It is manifest from this review of our decisions that there has been a growing appreciation of public needs and of the necessity of finding ground for a rational compromise between individual rights and public welfare. The settlement and consequent contraction of the public domain, the pressure of a constantly increasing density of population, the interrelation of the activities of our people and the complexity of our economic interests, have inevitably led to an increased use of the organization of society in order to protect the very bases of individual opportunity. Where, in earlier days, it was thought that only the concerns of individuals or of classes were involved, and that those of the state itself were touched only remotely, it has later been found that the fundamental interests of the state are directly affected; and that the question is no longer merely that of one party to a contract as against another, but of the use of reasonable means to safeguard the economic structure upon which the good of all depends.” (My emphasis.)
What Chief Justice Hughes was saying couldn’t be clearer. Postulating an ever-increasingly complicated social environment in which “the good of all” was the standard of value, Hughes held that “public needs,” “public welfare” and “fundamental interests of the state” trumped, and had to be protected from, something perniciously antithetical: “individual rights.” Necessary, according to Hughes and the Court’s majority, was a “rational compromise between individual rights and public welfare.”
Since the nature of a compromise is “a settlement in which each side gives up some demands or makes concessions,” the concept can have no application to individual rights, which are either absolute or nonexistent.
Indeed the majority’s idea of a compromise—between the sanctity of contracts supposedly guaranteed against government impairment by the Constitution, and the “public welfare” that allegedly required a two-year mortgage moratorium—was to allow Minnesota to rewrite the central provision of the Blaisdells’s contract with their lender (repayment of the loan).
So much for compromise—and contracts, and individual rights.
Although since the Blaisdell decision in 1934 there has been some amelioration of states’ power to nullify the Constitution’s Contract Clause, the precedent still stands. Thus, if the real estate situation worsens and the government’s jawboning and arm-twisting of lenders proves inadequate to forestall foreclosures, no one should be surprised if Congress enacts a federal mortgage moratorium act.
And if that happens, even with four conservatives on the Supreme Court of the United States such legislation could be upheld.
Which brings us to the subject of our forthcoming election, and the prospect of the Democrat Party naming one or more Supreme Court justices. If that happens and a Federal Mortgage Moratorium Act comes before a liberal-dominated Court, it will be Blaisdell all over again—with its sacrifice of contracts and individual rights on the altar of compromise and public need.
I Am The Constitution
Among the stories that rank high in the pantheon of American political anecdotes is one told about Frank [Boss] Hague, mayor of Jersey City, New Jersey, from 1917 until 1947.
One day during the mayor’s reign, two juveniles were arrested for truancy. Brought to a police station where Hague was visiting, the boys told him they’d rather go to jail than back to school. Hague ordered that they be found jobs, but was told the law wouldn’t allow it because they were too young. The mayor’s classic response was: “Listen, here is the law! I am the law. These boys go to work!”
For at least the last half-century, judicial equivalents of Mayor Hague have sat on the Supreme Court of the United States, including “I-am-the-law” Chief Justice Warren and Justices Douglas, Marshall, Goldberg, Fortas, Ginsburg, Brennan—and of course John Paul Stevens.
Elsewhere, I have characterized Justice Brennan as the High Priest of the “Living Constitution” doctrine because, according to him, the Constitution of the United States of America<
