Scalia's Dissent

I like it.


Spaceman Spiff said...

He's brilliant, but I don't agree with his arguments... it seems to me at the end of the day, the writ is meant insist that the government cannot detain someone improperly, and Scalia seems to bring up two details, namely the location and the status of citizenship of the individuals, to override this.

But from an ethical standpoint I can't make sense of that. So the government should be allowed to improperly detain non-citizens? Clearly not. Should they be allowed to detain people improperly overseas? Again, clearly not.

It seems important to me that it is in fact the judicial branch who decides this, precisely because they are the ones who are least likely to make an unethical decision based on expedience.

Speaker for the Dead said...

The role of the Supreme Court is to determine legality (specifically, constitutionality), not ethical standing.

I think he made a very good case the writ has NEVER before been applied in such situations. Whether or not it SHOULD is another matter - for Congress, not the courts, to decide.

The ethics in this situation are anything but "clear." We are not at war with nations, but with soldiers operating globally; how we should handle them is a very complicated issue. He noted a few times where releasing detainees proved fatal.

In my opinion, the judicial branch has been just as derelict in its duties as the other two.

Spaceman Spiff said...

To me, negative consequences of such a law cannot be admitted as primary evidence. That constitutional principle seems clear to me. If holding someone cannot be proven in advance to be justified then the fact that they later went on to commit criminal acts would still fail to justify having held them, right? What matters is what can be proven at the time. Citing such cases doesn't really add much.

And of course I understand that it is not the court's explicit task to decide based on ethics, but I wonder if Brown v. the Board of Education could have gone the way it did based on a strict interpretation of the constitution (which is to say, based on the original understanding of the constitution).

Speaker for the Dead said...

I didn't say (or didn't mean to say) that negative consequences of a law can be admitted as primary evidence.

Of course...that's why I would consider Brown v. Board of Education a bad ruling, from a legal perspective. There is nothing "inherently unequal" in segregation (even though, in practice, racial segregation at the time was blatantly unequal).

The legal question here is whether or not the constitutionally granted right to writs of habeas corpus applies to aliens on foreign soil. Scalia (conclusively, in my mind) demonstrated that it has never applied in such circumstances.

Scalia, in citing negative consequences, was not expressing a legal argument against the Court's ruling, but rather emphasizing how detrimental that decision could be.