INFLAMMATORY WRIT: ...

INFLAMMATORY WRIT: An interesting article by David Savage about the military commissions bill signed by the President this week. I have been highly pessimistic about whether the Supreme Court will rule significant parts of the bill unconstitutional. But at least some scholars believe that the Court will not run (to their undying credit):

Many legal scholars predict the law's partial repeal of habeas corpus will be struck down as unconstitutional.

"This is an outright slap at the Supreme Court, and it is heading for invalidation," said Eric M. Freedman, a law professor at Hofstra University and an expert on habeas corpus. "This is a core principle of law that was established by the prisoners who were tossed into the Tower of London by the king, and it was preserved in the Constitution. Now, Congress is saying it doesn't apply to this disfavored group of prisoners."

Another thing to add, which I didn't consider sufficiently in my first post, is the increased power of federal courts over time, and how this should affect constitutional interpretation (especially when it comes to jurisdiction stripping.) On paper, Congress' power to remove jurisdiction from the federal courts is strong. (Indeed, the same court that decided Marbury v. Madison allowed Congress to simply abolish circuit courts that it had previously established.) The difference between now and 1803, however, is that federal courts have become much more important, while the role of state courts has become less important. One could argue that the right to habeas protection and a hearing in federal courts was less important when federal courts played a much lesser role and one could always count on state courts, but under current conditions the courts should interpret Congress' right to suspend habeas protections and strip jurisdiction from the federal courts more narrowly.

Meanwhile, on the substance, Jack Balkin makes the critical point that declaring rights without providing remedies is a remarkably cynical exercise that undermines the rule of law.

--Scott Lemieux

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