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.