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Re: Thomas & Scalia



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Andy, both Scalia and Thomas are originalists, but originalists begin with the text and, if they need more, consider the historical context. But this isn’t a rote exercise. Obviously, any two people, looking at the same set of facts, and applying the same analytical standards, don’t necessarily come up with the same result. This isn’t mathematics.

Moveover, there are competing constitutional issues here, as in most cases. In the detainment cases, they involved habeas, due process, presidential powers, judicial review and separation of powers. I do not believe Thomas would have objected to Congress suspending habeas as a legitimate exercise of its constitutional power. In fact, in Hamdi he specifically quotes Justice Jackson for the proposition that Congress (and the president) have virtually sole authority in this area. But he also recognizes that whether or not Congress acts, the Executive has powers too. And that includes primacy in the conduct of war. In this there can be no doubt.

I take it that you consider yourself an originalist, yet I believe we disagree on Hamdi, as do Scalia and Thomas. (See my short article posted this morning.) Moreover, as I have pointed out, and you did in your piece yesterday, the issue in Hamdi wasn’t whether he had access to the courts. The government conceded he did. The question was the extent to which he could rebutt proof presented to the court in a habeas hearing. So, to me, habeas was not the issue. Now, having concluded that Hamdi had a hearing at which the government informed the court of the reasons for his detention, the constitutional requirement had been met. There’s nothing in the Constitution that specifically justifies the Court’s decision to apply some kind of due process analysis (confusing at that) on top of the habeas hearing in this case. Yet, the Constitution is quite clear about presidential supremacy in matters of war which, in my view, deserves deference.



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