Deference to Congress and Boumediene

[marty.lederman at comcast.net]

Is the implication that those of us who think Lopez and Morrison were wrongly decided must also think that Boumediene was wrongly decided?

If so, I don't get it.  (Virtually none of the critics of Lopez/Morrison argued that the Court should uphold all, or almost all, "considered democratic outcomes," without regard to what the constitutional question is.  Indeed, it's hard to think of anyone who has argued anything like that, save perhaps for Mark Tushnet and Larry Kramer (kinda).)

 -------------- Original message ----------------------
From: DavidEBernstein at aol.com
> John Yoo's piece in the WSJ today about Boumediene, 
> _http://online.wsj.com/article/SB121366596327979497.html_ 
> (http://online.wsj.com/article/SB121366596327979497.html) ,  raises a question 
> in my mind: have any of the scholars who so 
> vigorously  attacked the Rehnquist Court for its meager efforts to restrict 
> Congress's power  over interstate commerce, particularly those who argued that 
> the Court was  interfering with considered democratic outcomes, risen to 
> denouce the  Roberts Court's far bolder (and far less textually and  
> historically 
> supported, IMHO) and much more practically significant effort  to second-guess 
> the other two branches policy regarding how to conduct "the War  on Terror?"  
> 
> David E.  Bernstein
> Professor
> George Mason University School of  Law
> http://mason.gmu.edu/~dbernste
> 
> 
> 
> 
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