In last Saturday’s New York Times, University of Chicago law professor Richard A. Epstein—a brilliant, provocative, and idiosyncratic libertarian scholar—has an op-ed on Boumediene that might charitably be described as puzzling. In his first two paragraphs, Epstein assures the reader that the Boumediene majority reached the right result in holding that aliens detained at Guantanamo as enemy combatants have a constitutional right to challenge their detention through a habeas corpus proceeding in federal court. Only several paragraphs later do we learn the frivolous basis for Epstein’s judgment: “Nothing in the suspension clause distinguishes citizens from aliens.”
The so-called Suspension Clause provides: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” The Suspension Clause doesn’t purport to define the scope of the privilege of habeas corpus; it merely governs suspension of the privilege. So it’s trivial and meaningless that the clause doesn’t distinguish citizens from aliens. (What would Epstein imagine the Framers would have said to distinguish citizens from aliens—or at least aliens on foreign soil? They would have had to define its scope, rather than simply referring to the historic privilege.)
The non-originalist Epstein claims that his misreading of the Suspension Clause rests “on originalist grounds”. Yet he nowhere confronts (or even acknowledges) the extended originalist argument that Justice Scalia makes in his dissent. Epstein apparently even imagines that the constitutional guarantees of “persons” flow equally to aliens, as he breezily observes that “the due process clause extends its protection to all ‘persons,’ citizens and aliens alike”, and that “If citizens overseas are entitled to habeas corpus, so are aliens.” There is, so far as I’m aware, no precedent for recognizing in aliens abroad the same constitutional rights of “persons” that U.S. citizens abroad have, and the very idea is inimical to a sound understanding of what “We the People” established through the Constitution—a framework for “secur[ing] the Blessings of Liberty to ourselves and our Posterity.” (I am of course not arguing that the U.S. government shouldn’t treat aliens abroad justly; the contours of just treatment are a matter of policy, not constitutional mandate.)
Meanwhile, in Saturday’s Wall Street Journal, Andrew McBride got Boumediene right.