Right to judicial review of detentions

[Volokh, Eugene]

	I don't think Justice Scalia is a pure textualist as to the
Constitution; rather, he thinks that both original meaning and
longstanding tradition may be used to supplement the text.  And given
the broad practice throughout American history -- going back to the
Revolutionary War, I think -- of military detention of enemy combatants
without civilian judicial review, he'd probably say that this is fine,
at least for aliens (this is how I read his Hamdi v. Rumsfeld opinion).
And perhaps original meaning and tradition can at least sometimes
identify for us unwritten categorical exceptions to the written
categorical norms.

	Eugene

-----Original Message-----
From: Sanford Levinson [mailto:SLevinson at law.utexas.edu] 
Sent: Tuesday, June 14, 2005 2:37 AM
To: Volokh, Eugene; conlawprof at lists.ucla.edu
Subject: RE: Right to judicial review of detentions


Eugene writes:   Now one may well argue that there should be an
exception to this
exception, for instance for U.S. citizens, or for people detained
outside the theater of war, or something else.  But simply faulting the
U.S. for not adhering to a categorical norm that has, to my knowledge,
never been seen as truly categorical, strikes me as unhelpful.

He is surely correct, in the particular sense that one of the basic
things we all know as constitutional lawyers is that "categorical norms"
(whether the First Amendment or the Contract Clause, for starters)
really do not mean what they say (i.e., "no law" doesn't really mean "no
law"; it simply means "no law" in the absence of a "compelling
interest," or, in the case of impairments of contract, some reasonable
interest of the state).  But this is one of the things that provoked my
initial interest in the subject of torture, for Article II of the UN
Convention on Torture, duly ratified by the Senate of the United States
in the name of the people of the United States, is written as if to head
off any such "compelling interest" arguments by stating, as clearly as
language can ever state everything, that "no circumstances whatsoever"
can justify derogation from the duty not to engage in torture.  (This is
one of the reasons why there is so much pressure to define what the US
is doing as something other than torture.)   What, exactly, did the
Senate think it was doing when it ratified the Convention and did NOT
register a reservation to Article II (unlike the Article I definition of
"torture," where the Senate offered a more interrogator-friendly
definition than the UN's definition)?  Did it believe, for example, that
it was limiting the President's power as commander-in-chief to order
torture if deemed "necessary"?  And might John Yoo be correct, in the
August 1, 2002 OLC memo, that such a limitation would be
unconstitutional, because the President retains, as an attribute of his
office, the right to order torture or, indeed, to do anything else (such
as emancipating slaves, which was obviously an uncompensated taking of
private property) deemed to aid the prosecution of a war in which the US
is engaged?  

But, of course, the Constitution is full of "categorical norms,"
including no "cruel and unusual punishment," "two senators for each
state," fixed presidential terms, the "high crimes and misdemeanor
standard for impeachment," etc., etc.  And the question is whether there
is any disciplined process by which we decide which "categorical norms"
are in fact not to be treated "as truly categorical," in Eugene's
language.  But if one believes that the President can, e.g., block
publication of newspapers if they print material relating to imminent
military operations or order torture, then why can't the President--or
at least President and Congress working together--suspend elections that
might plausibly be viewed as threatening national security?  Such a view
could be eminently reasonable, I believe, because of the indefensible
stupidity of the American constitutional system that currently leaves a
ten-period--it used to be worse before the 20th Amendment--between the
electoral repudiation of an incumbent president and the inauguratin of
his/her successor; this means, in practice, that there could well be no
truly legitimate government during the hiatus with regard to making
central decisions regarding the conduct of an ongoing war.  The British
have an almost infinitely better system in this regard.  

In any event, I take it that Eugene rejects the views of, say, Justice
Scalia or John Manning that it is enough to read the text in order to
know what "the law" is.

sandy