A Justice decided, off the bench, that the great communicators Jefferson and Madison didn’t mean what we think they meant.  On the bench, the same Justice still seems to confine his legal opinions to decisions based on the consensus of the meaning of the constitution. [although I haven’t read many opinions in the last few years, so maybe I’m just not keeping up]
   
  I haven’t read many unofficial writings of the Justices, but it seems to me that some of them are looking for a way to introduce opinions that they don’t currently feel they can write on the bench.  Their actual judicial opinions don’t seem to jive with what they say out of court. So far, they are honest enough not to let their personal opinions change what they must to do, according to law, but it is troubling that such game-playing with words is going on.
   
  The latest troubling statement, made by our Attorney General Alberto Gonzales, is that we have no right of habeas corpus granted by the constitution:  “The Constitution doesn't say every individual in the United States or every citizen is granted or assured the right to habeas [corpus]. It doesn't say that."
   
  No, but the Bill of Rights guarantees that we can seek a writ of habeas corpus.  In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Supreme Court reaffirmed the right of all United States citizens to seek writs of habeas corpus even when declared enemy combatants.  I must assume that our Attorney General knew that. So, why play with words, in a seemingly deliberate deception?  
   
  What is going on here?
   
  Langdon Hagen-Long


Anthony Santoro <[log in to unmask]> wrote:  Re: Scalia and the "living Constitution:" one example (presumably among
many) of Scalia stating his viewpoint can be found in his essay on the death
penalty in Erick C. Owens, John D. Carlson, and Eric P. Elshtain, eds.,
"Religion and the Death Penalty: A Call for Reckoning."

Scalia: If I subscribed to the proposition that I am authorized (indeed, I
suppose, compelled) to intuit and impose our "maturing" society's "evolving
standards of decency," this book and the Pew Forum conference that preceded
it would be for me a sort of continuing judicial education, a preparation
for my next vote in a death-penalty case. As it is, however, the
Constitution that I interpret and apply is not living but dead--or, as I
prefer to put it, enduring. It means today not what current society (much
less the Court) thinks it ought to mean, but what it meant when it was
adopted. (p. 232)

This is a very interesting essay for a lot of reasons -- including the fact
that there are moments when Scalia's expressed rationales for reasoning seem
to contradict each other, and his assertion at the end of the quotation,
that the Constituion means now what it "meant" when it was adopted --
certainly a problemmatic point of definition, if nothing else.

Anthony Santoro
Ph.D. Candidate, University of Heidelberg

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