As we have come to expect, John McCain's response to today's decision upholding habeas corpus for Guantanamo detainees was, compared to Barack Obama's response, considerably less sensitive to our nation's constitutional values.

"These are unlawful combatants, they are not American citizens and I think we should pay attention to Justice Roberts' opinion in this decision," McCain said, referring to the chief justice's dissent.

McCain said he hadn't read the decision. Presumably, he hadn't read the Chief Justice's dissent, either. McCain's remarks confirm his blind faith in Chief Justice Roberts. That should tell you something about the kind of judge he'll nominate to the Court if he's elected in November.

[More ...]

Today's Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court's decision is a rejection of the Bush Administration's attempt to create a legal black hole at Guantanamo - yet another failed policy supported by John McCain. This is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy.

[More...}

A 2005 Daily Kos post by Barack Obama chiding people like me for being very hard on Democrats who voted for John Roberts is making the rounds again and it is worth revisiting today in light of the 5-4 vote in today's Gitmo/habeas corpus decision. Obama wrote:

In my previous writings on the Boumediene constitutional habeas corpus cases, I argued that the DC district court and the DC Circuit court misread the important Eisentrager precedent.

MSNBC just flashed the report that in a 5-4 decision, the Supreme Court just ruled that the detainees in Guantanamo have a constitutional right to habeas corpus. Apparently, the Supreme Court agreed with me and disagreed with the DC Circuit Court of Appeals.

AP:

Justice Anthony Kennedy, writing for the court, said, "The laws and Constitution are designed to survive, and remain in force, in extraordinary times." . . . In dissent, Chief Justice John Roberts criticized his colleagues for striking down what he called "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants."

More to come when I read the opinion . I want to compare it to my prior analysis. [More...]

John McCain admits that he doesn't understand much about economics. It's time for him to make the same concession when it comes to constitutional law.

A top adviser to Senator John McCain says Mr. McCain believes that President Bush’s program of wiretapping without warrants was lawful, a position that appears to bring him into closer alignment with the sweeping theories of executive authority pushed by the Bush administration legal team.

In a letter posted online by National Review this week, the adviser, Douglas Holtz-Eakin, said Mr. McCain believed that the Constitution gave Mr. Bush the power to authorize the National Security Agency to monitor Americans’ international phone calls and e-mail without warrants, despite a 1978 federal statute that required court oversight of surveillance.

McCain might want to double-check the validity of his beliefs by reading the Constitution. He should start with the Fourth Amendment. Then he should peruse the rest of the document in a fruitless search for a presidential exception to the Warrant Clause. He might also hazard a glance at Article I, which grants law-making powers to Congress, and at Article II, section 3, which requires the president to "take care that the laws be faithfully executed" -- even laws the president doesn't like. (more ...)

J. Edgar Hoover sent a memo to the White House in 1950, where it evidently languished until the Bush administration decided that Hoover had a good plan.

A newly declassified document shows that J. Edgar Hoover, the longtime director of the Federal Bureau of Investigation, had a plan to suspend habeas corpus and imprison some 12,000 Americans he suspected of disloyalty.

The irony, we hope, is obvious: to protect the country from "disloyalty," Hoover urged a betrayal of the Constitution. What kind of loyal American believes that individuals should be deprived of their freedom on suspicion alone, without due process and with no right to challenge the confinement in court?

Oh, right. This kind:

After the terrorist attacks of Sept. 11, 2001, President Bush issued an order that effectively allowed the United States to hold suspects indefinitely without a hearing, a lawyer, or formal charges.

Playing gotcha on the exact phrasings in the Constitution is pretty silly and Professor Althouse tries it on The NYTimes:

"The New York Times editors think that the phrase 'life, liberty, and the pursuit of happiness' is in the Constitution..." Oops! But if it's a living Constitution, surely, life, liberty, and the pursuit of happiness have evolved there by now. Let's run with it! Possibly to things the NYT won't even like.

(Emphasis supplied.) For the record, a pretty important amendment to the Constitution, the 14th, states:

. . . No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

(Emphasis supplied.) Not precisely "life, liberty and pursuit of happiness," but not exactly made up out of whole cloth as Professor Althouse seems to suggest. Just sayin'

The APSA had a panel on the New Originalism, and Professor Jack Balkin's Progressive Originalism was front and center.

Larry Solum provides a terrifc writeup on the debate. Balkin's highlight:

Balkin thought he should talk about "progressive originalism". How do you do it? For Balkin, the issue is how to be faithful to the constitution's commands as law. Fidelity requires that we be faithful to the text and the original meaning of the text. The text has rules, standards, and principles. Where the constitution enacts a principle, you must be faithful to the principle. This leads to a distinction between original expected application and original meaning. Early originalism conflated this two.

More...

Jack Balkin continues to think circles around the conservative critics of his theory of Progressive Originalism:

Matt [Franck of NRO] has demurred when I asked him what parts of the post-New Deal order he thought were constitutional under his theory. . . . In a previous post I asked Matt whether he thought the Fourteenth Amendment guarantees equal rights for women. He responded that Bradwell v. Illinois, which held that Illinois could deny women the right to be lawyers, "was rightly decided." He hastened to add that this "declares nothing on [his] view of women's equality." As a matter of original understanding-- that is, original expected application-- Matt is probably right. The Framers of the Fourteenth Amendment believed that its guarantees were perfectly consistent with the common law coverture rules, under which women lost all of their rights upon marriage. . . . The question is whether our Constitution must be applied today in the way that Justice Bradley and his contemporaries would have applied it. Matt says yes. I say no: The text of the Fourteenth Amendment does not require it, and the principles underlying the text do not require it. Matt, by contrast, believes that the meaning of the text is identical (for purposes of legal interpretation) with its original understanding. I argue that this confuses concepts with their expected applications, and the meaning of a sentence with the expectations of the speaker who uttered it.

More.

As always, I speak for me only.

Adam Cohen gets it right:

. . . Members of Congress should keep in mind, however, that the founders gave them the impeachment power for a reason — and Mr. Gonzales’s malfeasance is just the sort they were worried about.

The Constitution provides for impeachment for “treason, bribery, or other high crimes and misdemeanors.” Not a clear formula, but it wasn’t meant to be. Impeachment, Alexander Hamilton explained in Federalist 65, cannot be “tied down” by “strict rules, either in the delineation of the offense” by the House, or “in the construction of it” by the Senate.

. . . Impeachment of Mr. Gonzales would fit comfortably into the founders’ framework. No one could charge this Congress with believing that executive branch members serve at the “pleasure of the Senate” or the House. Speaker Nancy Pelosi has indicated that impeachment of President Bush is “off the table,” and there has been little talk of impeaching Vice President Dick Cheney or others in the administration . . . MORE