The Corner

Re: Thomas & Scalia

Bear with me, this one is long.

I much appreciate the responses from Mark Levin, Jon Adler, and Randy Barnett, which gave me a lot of insight I did not have before. I agree with Jon that Baude’s statement about Justice Thomas seeing himself as a staunch defender of the founders’ classically liberal vision is defensible–in fact, I think it’s not only defensible but correct. My only quibble was that it was inconsistent with Baude’s earlier assertion that Thomas is wedded to the text to the exclusion of historical context. In hindsight, I think my critique of Baude is nit-picky–his fine article explains what he means by his introductory comments, and, as both Mark and Jon point out (and as Randy amplifies), all originalists start (and, if they can, end) with the text. Petty or not, though, I am selfishly glad I nit-picked since it has sparked an interesting discussion.

Mark is of course right that Hamdi featured competing constitutional issues, as many of the high Court’s cases do. But I respectfully disagree that it is unlikely Thomas would have objected to a congressional suspension of habeas corpus.

Regarding rebellion or invasion, which is the constitutional predicate for such a suspension, Thomas writes (in his Hamdi dissent at p. 16): “[T]his condition might not obtain here [i.e., in Hamdi’s case] or during many other emergencies during which detention authority might be necessary.” Thomas’s earlier reliance on Justice Jackson doesn’t sway me either, because Jackson was talking about the primacy of executive and legislative power in the areas of foreign affairs and national security, not habeas corpus. That makes sense: If a national security crisis could empower the president unilaterally to suspend habeas corpus, the Suspension Clause (and of course habeas) would be a nullity. This would be contra-textual–something I would think Thomas in particular would deem unacceptable (for the reasons elaborated on by Randy). Besides, habeas corpus is a judicial writ, so the judiciary cannot be expected to step aside with respect to it as they should generally on matters of foreign affairs and national security.

Since Thomas thus cannot ignore the Suspension Clause, he instead construes it as having no (or at best dubious) application on the facts of this case–a construction accomplished by an overly stingy construction of the word “invasion” (i.e., he suggests that the 9/11 attacks cannot at this stage be considered an “invasion,” so there is no need to consider whether Congress could have suspended the writ). If Thomas is right, that would necessarily mean the framers thought it was important to make express contingencies regarding liberty for only some conceivable national emergencies (invasion and rebellion) but not all of them. This seems unreasonable to me. In my book (as evidently in Justice Scalia’s), 9/11 remains an invasion; that it happened 3 years ago rather than 3 days ago is immaterial–what matters is that we are still directly imperiled by it.

Also, I can’t agree that because the government conceded that Hamdi had access to the court, habeas was not at issue in the case. Habeas is not just a procedural right of access to court; it is, in addition, a substantive right to be at liberty if one’s detention violates the Constitution. If I am right about that, Scalia’s vision is both more democratic and more faithful to the Constitution than Thomas’s. That is, Thomas says in a time of crisis the executive branch may detain anyone it wishes to, and the court cannot review. Scalia, on the other hand, says the executive can detain anyone it wishes to as long as the people’s representatives have approved by suspending habeas corpus, but if they have not, the detention is not legal and the detainee must either be freed or prosecuted in the criminal justice system. As I said in yesterday’s article, I think Scalia’s argument may be unassailable if the only question were what is constitutionally more sound. But I don’t think Scalia’s argument is practical politically, and in a national security context that is a fatal flaw.

In most instances where constitutional fidelity would cause practical political difficulty (e.g., where a faithful reading of the 14th Amendment would require politicians to oppose affirmative action programs, or a faithful reading of the First Amendment would cause presidents to veto unconstitutional campaign finance reform schemes), I say to hell with practical politics–the oath government officials take is to the Constitution, not to expedience. Yet, I find myself unable to side with Scalia in Hamdi, even though I think he’s probably right, because I’m convinced that under his result our troops would be placed in mortal peril (i.e., if the politcal branches decline to act, Scalia’s view would either free terrorists or cause terror trials that educate terrorist organizations).

The beauty of Thomas’s position, is that even if the politicians lack spine to suspend the writ, the terrorists are still detained and there are no trials. But the problem with it is: Has he effectively repealed the Suspension Clause and set a dangerous precedent that is more likely than Scalia’s theory to result in innocent people being detained without trial.

In the plurality’s vision, which carried the day in Hamdi, we get less national security than Thomas would allow and less liberty than Scalia would allow. If I had to vote on which of the three possibilities (plurality, Thomas or Scalia) is the best thing for the country right this minute, I would vote, like Mark, for Thomas’s view. BUT, I would do so knowing I’d have a very hard time answering this question: Haven’t I just voted to repeal the Suspension Clause? That is why I have sympathy for the plurality’s balancing act, even though I acknowledge Mark is completely correct that Thomas’s position makes our country much safer.

One final thing ought in fairness to be conceded given my criticism of Baude: I am probably guilty of a more important inconsistency. I previously reported on combatants a couple of times (here and here. In neither of these articles did I mention, let alone deal with, the Suspension Clause, which I now am portraying as a big problem.

In my defense, my purpose in those pieces was primarily to report on what had happened, first in the Padilla case and then when the Supreme Court heard argument on all these combatatnts cases; the Suspension Clause did not figure prominently in any of those proceedings. Why? Because I think we all assumed that Ex Parte Quirin, the WWII era case in which the Supremes had upheld detention without trial of an American citizen, would have made any argument based on the Supremacy Clause futile. I don’t think the lower federal courts can be faulted for this (although I certainly wish I had thought to address it somewhere along the way), because they were required to follow Quirin. As the Hamdi opinions demonstrate, however, the Supreme Court is always free to revisit its own precedents, which I think made the Suspension Clause a much more live issue for the justices than it had been for the lower courts.

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