Themes of the American Civil War
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| Boumediene v. Bush was a deeply divided and divisive opinion but one probably destined to become the most important milestone in the history of both Habeas Corpus and separation of powers in a century. 53 In a five-to- four split, Justice Anthony Kennedy spelled out the central premise. Detainees have aright to Habeas Corpus in a federal civil court, to challenge the basis of their detention. Congress had effectively suspended the writ by depriving the courts of jurisdiction. The system of CSRTs with appellate review to the DC Court of Appeals was not an acceptable substitute. Congress might suspend the writ only in times of invasion or rebellion, and there was nothing in the record to show that such was the case. Five Justices did not accept that Guantanamo and its detainees belonged to a place beyond the jurisdiction of the Court and the reach of the Constitution. For the first time in American history Habeas was extended to foreign nationals captured in time of war, a privilege never given to 400,000 Axis prisoners of war on American soil in World War II. The political branches of government, said the Court’s majority, could not switch the Constitution on and off when it suited. The Constitution had given to the Court and to no one else the exclusive duty to say what the law is.” 54 It was a momentous decision, fiercely attacked by the Bush administration, which pressed on with finding ways to rescue its agenda and circumvent the ruling, but welcomed by the Democratic candidate, Barack Obama, who went into the presidential election of 2008 pledged to close Guantanamo. The Court’s opinion demonstrated that the checks and balances of the original Constitution and its separation of powers remain as important as 342 • Pat Lucie the Framers thought to secure personal liberty by limiting the power of government to take it away. Habeas Corpus runs like a thread from 1787 to today’s date, as does the importance of federal court jurisdiction. The Civil War taught that it was just as important to limit the states and private parties from taking freedom away too. In doing so, the Framers of the constitutional amendments and civil rights laws built upon the work of the Founding Fathers and aspired to make the Union more perfect They did so by articulating the primacy of equal citizenship and providing pathways to and from the states to make it work. But there was another lesson. The rights of individuals are not achieved by default, just by limiting the powers of government. Congress was given the power to enforce the three constitutional amendments. It is an invitation that the legislature responded to more boldly up to 1875 than since. In the absence of legislative leadership for much of this time courts have therefore played the leading role in interpreting both the structural constraints of the Constitution and its textual guarantees of rights. Since the New Deal this has been, on the whole, a rights- protective role. The Court that handed down Boumediene is known to reflect more conservative values than its predecessors and yet it has delivered a powerful message to the political branches about the importance of the rule of law and the separation of powers. The culture of liberty thus—for the moment—has remained focused on judicial battles about individual rights. The political branches do need to be constrained because the Framers in 1787 were right about limited government, but they also need to be willing to find and exercise the powers within the Constitution to secure the blessings of liberty, provide for the general welfare, and establish a more perfect Union. In this the Civil War’s constitutional reforms were a transformative momenta still-to-be-grasped potential. The signs are that the potential maybe about to be grasped. In his Inaugural Address, on January 20, 2009, President Barack Obama announced to the world that America’s commitment to its constitutional ideals would not be traded for national security. . . we reject as false the choice between our safety and our ideals. Our Founding Fathers, faced with perils that we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man —a charter expanded by the blood of generations. Those ideals still light the world and we will not give them up for expedience sake. 55 The following day, January 21, 2009, he signed an executive order closing Guantanamo within a year. 56 The new President walks consciously with Lincoln as his inspiration, and promises that the Constitution empowers as well as restrains in the pursuit of its ideals, that it is adequate in any tempest. This may well be another transformative moment. Constitutional Powers • Download 2.25 Mb. Share with your friends:
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