Ronald Dworkin on Boumediene

Via BookForum: “Why It Was a Great Victory” by Ronald Dworkin (in NYRB)

This is Ronald Dworkin’s take on Boumediene vs. Bush, and it’s a mix of historical background, legal analysis, and advice for Congress, all written in a way that I think is pretty accessible to the educated layman. For anyone interested in perhaps one of the most important cases in recent memory, this article provides a good read. So the next time you are at a cocktail party, you can pawn it off as your own opinion 😉

The heart of Dworkin’s analysis lies in the distinction he makes between Scalia’s “historical” reading of the suspension clause and Kennedy’s “principled” reading of the same clause:

“Scalia’s dissent mainly challenged Kennedy’s disposition of the first of these two issues. How should a contemporary judge decide whether the Constitution’s guarantee of habeas corpus applies to aliens held by United States forces outside the United States? Scalia insisted on an historical test. “The writ as preserved in the Constitution, he said, “could not possibly extend farther than the common law provided when that Clause was written.” Kennedy argued that it is impossible to know what the common law was in 1789. In the absence of definitive historical evidence, he said, the issue should be decided on principle. Scalia disagreed on both points. The history was clear beyond doubt, he said, that the writ was not available in an English court for prisoners held outside the formal realm of England— it was not available to prisoners held in Scotland before the Act of Union, for example, even when the crowns of England and Scotland were united in the same king. But even if the history were ambiguous, he added, the DTA/ MCA scheme should not be held unconstitutional because when constitutional issues are doubtful, the Court should defer to Congress as representative of the people.

Was Scalia right to make the history of the Constitution decisive? We can read the suspension clause in two ways. We can take it to declare, as Scalia did, that the United States should never deny any prisoner the rights he would have had if he had lived in England or America in 1789, except in rebellions or invasions. Or we can read it to state a constitutional principle: that except in those cases government must allow anyone it imprisons the right to challenge his imprisonment in court. Like other constitutional principles, this requirement could not be read as absolute. It would not require habeas rights when it would be impossible or particularly burdensome to grant them—for example, if a prisoner would have to be flown to a US court from a battlefield abroad.

That qualification would not, however, allow government to escape habeas responsibility by building its prison camps in a foreign territory that is as much under its control as any base in this country. As Kennedy said, “The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain.” Scalia’s historical reading demeans the Constitution and insults those who made it. It is absurd to translate their clear declaration of principle into a rule pointlessly limiting prisoners’ rights to those enjoyed at some fixed and essentially arbitrary date.[9] Kennedy adopted the second, principled, reading. The scope of the constitutional right to habeas corpus, he said, should be determined by what he called a “functional” test: the right should be available unless it would be, in his words, “impracticable and anomalous” to grant it—as it would be in the midst of military operations.”

For Dworkin, the distinction essentially comes down to what standard is being applied: either the Court applies a strictly historical standard a la Scalia, or it applies a functional one a la Kennedy.

There is a whole lot more in that article, and the thing of most interest to me is Dworkin’s suggestions on how Congress can enact a statutory scheme that complies with the Court’s decision in Boumediene.

All in all, a good summary of a very important case, one which will have implications far beyond this Administration’s term as the War on Terror seems to be a never-ending one.


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