From the Supreme Court’s ruling that detainees at Guantanamo Bay have the right to challenge their imprisonment, a ruling I think shouldn’t be controversial in any way, a paragraph in this story seems odd.
As both sides of the court acknowledged in Thursday’s decision, the cases exposed fundamental differences in the court’s vision of judicial power. The conservatives favor adherence to strict rules and regulations promulgated by the political branches. The liberals are content to let judges judge, working out the boundaries between constitutional rights and national security.
Is that an accurate way to assess what the liberal judges are doing? I don’t think so. (I haven’t read the decision, so maybe they made statements to that explicit effect.) Rather, it’s more likely they’re working out the boundaries of constitutional rights based on the Constitution’s text and the facts of the case(s) at hand. The outcome for national security is more speculative in nature, without a clear method for determining consequences.
It’s often been stated in the last seven years that the Constitution is not a suicide pact. To an extent, yes. But it’s also absurd to suggest that the Constitution means only what is convenient for those in power at any given moment. What’s the purpose of a Constitution in that world?
If the Constitution is flawed, make the case for changing it. If it’s not flawed, honor it. Pretending it doesn’t exist is not a valid choice.
This decision (and the reaction to it) precisely demonstrates the way in which libertarianism is used by conservatives only when convenient to them. Libertarian legal theory, as best and originally expressed by Hayek and Friedman, holds that rules must be set in advance, without any specific outcome in mind. In this way, for instance, the principle of free speech safeguards all speech regardless of how popular or unpopular; if free speech, however, were put up to a vote in particular circumstances (say, whether neo-Nazis should be allowed to march on town hall), a majority would probably vote against it. So the key is to set the rules well in advance without regard to favoring any group. What the Bushies and Congress did in this case, however, was to say that they didn’t like that the rules were going to protect a given group and so they tried to change the rules. The SCOTUS majority recognized this for what it was, and overturned the law. Back in the 80’s, when libertarian legal theory was useful to conservatives, this general philosophy led, either directly or indirectly, to several key decisions overturning laws that conservatives were not particularly fond of. But now that conservatives ARE fond of the law that seeks to change the rules of the game as applied to one specific group, suddenly they’re not so fond of libertarian legal theory.