Bogus Report on the Supremes from a Harvard Law CFR-er

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Mort Zuckerman

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Sep 25, 2008, 12:27:39 PM9/25/08
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Subject: Bogus Report on the Supremes from a Harvard Law CFR-er

Date: Sep 25, 2008 12:23 PM

Errors in the arguments:

1) This nation was to be about basic human liberties and the absence
of autocracy.
This nation was meant as a rebellion against false caste systems.

The nation *is* the rebellion.

Get it?


Every thing we do should be about promoting tolerance and protecting
against the
corporations' spin crimes. Our enemy is false products and false
enemies (people
who own oil, for instance) and every false concept that is an attempt
at convincing
us'n peoples to give up our liberties for "security."

2) "So what do we need the Constitution to do for us now? The answer,
I think,
is that the Constitution must be read to help us remember that while
the war on
terror continues, we are also still in the midst of a period of rapid
globalization."

ERROR: We do not need to change the Constitution in order to
have these false wars for oil. Globalization does not work and is
not necessary. America, like every other nation, has to take care
of itself, first (including energy), and then whatever is left over
we give away. A nation whose needs exceed their wealth are entitled
to assistance until they acquire the technology for near-total
independence.

If we view the world as pockets of resources (minerals and
hydrocarbons),
then 1) do all you can to feed and protect your people from the
elements
2) barter for raw materials.


As it stands right now, America consistently makes up a bunch of
babyish
lies about the nations we want to steal from.


We do not need some law-professor-fake-scholar to tell us with
words that are meant to deceive us into thinking that this author
actually worships the law - implying that we should, too (and the
judges, which... please, code this nonsense with barf-bag alert
status next time; judges are the lowest of the low, morally, they're
white trash in black robes) - that we, the commoners, can't figure
out what the essence of America ever was.

I am so sick of this fake scholarly crap.

"Do unto others..."

A liar is a coward; someone who fears being 'less-than" another.


It could not be simpler.


Kathleen M. Dickson
===========================================

http://www.nytimes.com/2008/09/28/magazine/28law-t.html?hp=&pagewanted=print
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The New York Times
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September 28, 2008
Magazine Preview
When Judges Make Foreign Policy
By NOAH FELDMAN

Every generation gets the Constitution that it deserves. As the
central preoccupations
of an era make their way into the legal system, the Supreme Court
eventually weighs
in, and nine lawyers in robes become oracles of our national identity.
The 1930s
had the Great Depression and the Supreme Court’s “switch in time” from
mandating
a laissez-faire economy to allowing New Deal regulation. The 1950s had
the rise
of the civil rights movement and Brown v. Board of Education. The
1970s had the
struggle for personal autonomy and Roe v. Wade. Over the last two
centuries, the
court’s decisions, ranging from the dreadful to the inspiring, have
always reflected
and shaped who “we the people” think we are.

During the boom years of the 1990s, globalization emerged as the most
significant
development in our national life. With Nafta and the Internet and big-
box stores
selling cheap goods from China, the line between national and
international began
to blur. In the seven years since 9/11, the question of how we relate
to the world
beyond our borders — and how we should — has become inescapable. The
Supreme Court,
as ever, is beginning to offer its own answers. As the United States
tries to balance
the benefits of multilateral alliances with the demands of unilateral
self-protection,
the court has started to address the legal counterparts of such
existential matters.
It is becoming increasingly clear that the defining constitutional
problem for the
present generation will be the nature of the relationship of the
United States to
what is somewhat optimistically called the international order.

This problem has many dimensions. It includes mundane practical
questions, like
what force the United States should give to the law of the sea. It
includes more
symbolic questions, like whether high-ranking American officials can
be held accountable
for crimes against international law. And it includes questions of
momentous consequence,
like whether international law should be treated as law in the United
States; what
rights, if any, noncitizens have to come before American courts or
tribunals; whether
the protections of the Geneva Conventions apply to people that the
U.S. government
accuses of being terrorists; and whether the U.S. Supreme Court should
consider
the decisions of foreign or international tribunals when it interprets
the Constitution.

In recent years, two prominent schools of thought have emerged to
answer these questions.
One view, closely associated with the Bush administration, begins with
the observation
that law, in the age of modern liberal democracy, derives its
legitimacy from being
enacted by elected representatives of the people. From this
standpoint, the Constitution
is seen as facing inward, toward the Americans who made it, toward
their rights
and their security. For the most part, that is, the rights the
Constitution provides
are for citizens and provided only within the borders of the country.
By these lights,
any interpretation of the Constitution that restricts the nation’s
security or sovereignty
— for example, by extending constitutional rights to noncitizens
encountered on
battlefields overseas — is misguided and even dangerous. In the words
of the conservative
legal scholars Eric Posner and Jack Goldsmith (who is himself a former
member of
the Bush administration), the Constitution “was designed to create a
more perfect
domestic order, and its foreign relations mechanisms were crafted to
enhance U.S.
welfare.”

A competing view, championed mostly by liberals, defines the rule of
law differently:
law is conceived not as a quintessentially national phenomenon but
rather as a global
ideal. The liberal position readily concedes that the Constitution
specifies the
law for the United States but stresses that a fuller, more complete
conception of
law demands that American law be pictured alongside international law
and other
(legitimate) national constitutions. The U.S. Constitution, on this
cosmopolitan
view, faces outward. It is a paradigm of the rule of law: rights
similar to those
it confers on Americans should protect all people everywhere, so that
no one falls
outside the reach of some legitimate legal order. What is most
important about our
Constitution, liberals stress, is not that it provides rights for us
but that its
vision of freedom ought to apply universally.

The Supreme Court, whose new term begins Oct. 6, has become a
battleground for these
two worldviews. In the last term, which ended in June, the justices
gave expression
to both visions. In two cases in particular — one high-profile, the
other largely
overlooked — the justices divided into roughly two blocs, representing
the “inward”
and “outward” looking conceptions of the Constitution, with Justice
Anthony Kennedy
voting with liberals in one case and conservatives in the other. The
Supreme Court
is on the verge of several retirements; how the justices will address
critical issues
of American foreign policy in the future hangs very much in the
balance.

This may seem like an odd way of thinking about international affairs.
In the coming
presidential election, every voter understands that there is a choice
to be made
between the foreign-policy visions of John McCain and Barack Obama.
What is less
obvious, but no less important, is that Supreme Court appointments
have become a
de facto part of American foreign policy. The court, like the State
Department and
the Pentagon, now makes decisions in cases that directly change and
shape our relationship
with the world. And as the justices decide these cases, they are doing
as much as
anyone to shape America’s fortunes in an age of global terror and
economic turmoil.

What Conservatives Understand About International Law

The debate between inward-looking conservatives and outward-looking
liberals has
recently taken a turn toward the shrill. Liberal lawyers do not simply
accuse their
conservative counterparts of denigrating the rule of law; they accuse
them of violating
it themselves. Calling last spring for the firing of the tenured
Berkeley professor
John Yoo, an architect of the Bush administration’s legal strategy in
the war on
terror, Marjorie Cohn, the president of the National Lawyers’ Guild,
declared that
“Yoo’s complicity in establishing the policy that led to the torture
of prisoners
constitutes a war crime under the U.S. War Crimes Act.”

The conservatives’ arguments are no less heated: not only, they
contend, do liberals
paint a naïvely romantic picture of the world — one in which the
United Nations
and its agencies and courts would make law for Americans — but
liberals are also
endangering American lives. Dissenting this past June from the Supreme
Court decision
giving those held at Guantánamo Bay a right to challenge their
detention, Justice
Antonin Scalia wrote that the majority’s ruling “will almost certainly
cause more
Americans to be killed.”

These sorts of accusations are overstated and unhelpful. Neither the
liberal nor
the conservative view corresponds to the stereotype assigned to it by
its opponents.
Notwithstanding their limitations, both views express values that are
deeply grounded
in the American constitutional tradition and in the rule of law. Each
is necessary
to help us make sense of the Constitution’s role in an increasingly
complex global
world.

Consider first the conservative vision, which is sometimes called
“sovereigntist”
because it emphasizes the power and prerogative of the United States
to act as if
it is responsible to no one but itself. The Bush administration,
through its characteristic
combination of boldness, historical ambition and operational
incompetence, has given
sovereignty a bad name, much as it has for unilateralism. But the
constitutional
principle here is actually one that most liberals also fully embrace:
namely, the
principle of democracy.

International law, as even its staunchest defenders must acknowledge,
often fails
to accord with democratic principle. Such law is not passed by a
democratically
elected Congress and signed by a democratically elected president. It
is true that
the U.S. Constitution says that international treaties signed by the
president and
approved by the Senate shall be the supreme law of the land, thereby
conferring
some democratic legitimacy on treaties. But a great deal of
international law derives
not from treaties signed by consenting nations but rather from the
vague category
of international custom, which over time can harden into binding law.
For hundreds
of years, until more formal treaties were adopted, custom was the main
way international
law was created, giving rise to the laws of war, for instance, and
condemning terrorism
and torture. Even today, the existence of a treaty among only a select
group of
nations can be invoked in international forums as evidence of an
established custom
— and nonparticipating countries can come to be bound by treaties that
they themselves
never signed.

To conservatives, such international “law” is anathema. Even in cases
in which explicit
treaties among nations do exist, conservatives worry. Such treaties,
after all,
are increasingly interpreted by nondemocratic institutions like
tribunals of the
World Trade Organization or the United Nations’ International Court of
Justice.
Two hundred years ago, treaties tended to be simple agreements between
two parties,
with each reserving the right to interpret (and, if necessary,
enforce) the treaty’s
terms for itself. Today, though, many of the most important treaties —
those governing
trade, the environment and other crucial matters — involve a large
number of nations
that agree as a condition of the treaty to be bound by the decisions
of an international
body. To sign on to such a treaty, conservatives point out, confers
future lawmaking
authority on some unelected and thus undemocratic body.

According to the sovereigntists, the United States, faced with such
undemocratic
regimes, should feel free to reject any undesirable verdict of a body
like the International
Court of Justice and embrace a policy more in line with U.S. interests
— much in
the way that Israel responded to the I.C.J.’s condemnation of the path
of its security
barrier on the West Bank. In a world where Libya can lead an
international human
rights commission, no international institution is free from the
distortions that
arise when all countries are treated as equals. Even within the
distinguished higher
echelons of the United Nations or European Union, there is a risk that
bureaucrats
may pursue policies that reflect the values and priorities of their
own technocratic
classes. The worst-case scenario, from the perspective of the
conservatives, is
one in which enemies of the United States engage in “lawfare,”
opportunistically
charging the country with violations of international law to impede it
from rightfully
ensuring its safety.

Another key sovereigntist principle is the right of the United States,
when acting
abroad, to protect itself, whether fighting wars or preventing
terrorist attacks.
Historically, the court has given the president, as commander in
chief, great latitude
to act abroad as he sees fit. In situations in which Congress has
explicitly authorized
the president’s action, the court has recognized the prerogative as
almost absolute.
For instance, when the United States acquired Puerto Rico, Guam and
the Philippines
in the Spanish-American War, the Supreme Court allowed Congress and
the president
to govern those territories without extending constitutional rights to
the residents.
Similarly, after World War II, when Germans held by the United States
in occupied
Germany pending war-crimes charges petitioned for judicial review, the
Supreme Court
turned them away.

Conservatives argue, not implausibly, that these historic decisions
did not undermine
the rule of law: they embodied it. The Supreme Court’s judgments
derived, after
all, from the Constitution itself and its own democratic pedigree. One
central reason
that the people of the United States formed the Constitution was in
order to provide
for the common defense. The Constitution does protect rights,
according to this
view — but they are the rights of citizens, not the rights of mankind
in general
or of foreigners who have never even set foot in the United States.

What Liberals Understand About International Law

From the liberal perspective, the vision espoused by the conservatives
is crabbed
and parochial. Of course the Constitution demands democracy and gives
rights to
American citizens. But, say the progressives, that does not explain
why over the
last two centuries the Constitution has become the very model of what
a system of
government under law looks like. The key to the Constitution’s global
appeal, according
to the liberal view, is that the document stands for the universal
principle that
state power over individuals may only ever be exercised through law —
no matter
what government is acting, and no matter where on earth.

This outward-looking, “internationalist” conception of the
Constitution respects
the sovereignty of the United States and that of other countries —
provided they
deliver a just legal order to their citizens. But liberals point out
that even a
constitutional state that guarantees rights for its own citizens will
not protect
people in many places and times, often when rights are most sorely
needed. In wartime,
for instance, almost no nation will have an interest in protecting the
rights of
foreign enemies that it encounters. On the open seas, no domestic law
applies. And
for reasons of sheer practicality, no country’s laws regulate all its
potential
relations with all other states. To cover situations like these, where
domestic
law runs out of rope, is the task of international law. Such law seeks
to ensure
rights for all, not by replacing the domestic law of independent
nations but by
holding it to standards of universal justice and by supplementing it
where it is
incomplete or inadequate.

From this perspective, international law is necessary to ensure that
the rule of
law will actually obtain in situations where individual states do not
provide it.
This is why, for liberals, it is essential that the United States
comply with its
international obligations. The framers of the Constitution were
certainly eager
to demonstrate such compliance. When they made treaties the law of the
land, they
were saying — according to an interpretation of Chief Justice John
Marshall’s that
dates back to 1829 — that the moment the Senate ratifies a treaty, it
automatically
becomes the supreme law of the land, binding in every court in the
nation.

Deepening their historical argument, the liberals also point out that
from the earliest
days of the United States, the nation’s courts applied customary
international law,
regularly deciding who owned ships captured on the high seas according
to immemorial
practice that was not found in any treaty. What is more, the framers’
reliance on
international law and custom went to the very heart of their
constitutional endeavor:
what, otherwise, did the framers mean when they spoke in the
Constitution about
the declaration of war, or about letters of marque and reprisal, or
about judicial
authority over ambassadors?

In practice, the internationalist camp argues for the prudent use of
international
legal materials in constitutional decision-making — not only for
purposes of rhetoric
and persuasion but also to provide rules and principles to help
actually decide
cases. For example, liberals argue that if the United States adopts
laws designed
to comply with the Geneva Conventions, the government is obligated to
follow the
treaty to the letter should the government invoke the authority to
detain prisoners
that the treaty confers. Likewise, when the United States has
undertaken to comply
with the decisions of international tribunals, those tribunals’
rulings must be
treated as law, just as the treaties themselves are.

Liberals concede that the framers showed respect for international
law, in part,
because their country was new and revolutionary, and they sought
legitimacy in the
community of nations. But the liberal view stresses that the tradition
of respect
continued even once the nation was well established, and that it was
kept alive
by successive generations for different but always compelling reasons.
The United
States helped found the United Nations after World War II, for
instance, at what
was then the nation’s moment of greatest global power. Franklin Delano
Roosevelt’s
idea, shared by liberals then and now, was that the international rule
of law was
good not just in principle but also in practice. As a country governed
by law, we
were asserting the superiority of our system to others governed by
dictatorship.
Moreover, since the United States was a permanent member of the
Security Council,
any compromises to our national sovereignty were more than outweighed
by the tremendous
benefits of having a legitimate international legal order through
which, as a superpower,
it could assert its will.

As liberals see it, being a leading exponent of the rule of law
internationally
strengthens America’s ability to pressure or bully other countries to
respect the
rights of their own citizens. In this way, oddly enough, the liberal
view is consonant
with certain aspirations of the Bush administration. In Afghanistan,
Iraq and beyond,
President Bush has tried to export liberal constitutionalism,
including both elections
and basic rights. His “freedom agenda” is, in fact, a direct
descendant of liberal
internationalism, a policy associated with Woodrow Wilson and his
plans to make
the world safe for democracy through the work of international
institutions.

The Bush administration, of course, distrusts international
organizations that continue
in the tradition of the League of Nations, which Wilson helped to
found (though
he could not persuade his own country to join it). But Bush’s notion
that America’s
democratic Constitution should be an inspiration for the world is
identifiably Wilsonian
— as is the zeal to spread the good word, voluntarily when possible
but by force
if necessary. If the greatest tragedy of the Bush presidency is the
enormous human
cost of America’s ham-handed efforts to accomplish this worthy goal, a
second, related
tragedy is that the spreading of constitutional democracy is rarely
talked about
anymore as a liberal goal at all.

The Court’s Liberal Victory

Each constitutional worldview — the one conservative and inward-
looking, the other
liberal and outward-focused — has found exponents on the current
Supreme Court.
This past spring, in two cases before the court, each side won an
important victory.
The larger battle, however, was widely overlooked. The liberal victory
was widely
publicized, but its full implications were not often noted. As for the
conservative
win, its very existence went almost entirely unnoticed.

The liberal victory, in the case of Boumediene v. Bush, took place
against the backdrop
of the detentions of suspected terrorists at Guantánamo Bay, Cuba. The
detainees
were being held there because the Bush administration’s lawyers were
confident that,
under the Supreme Court’s precedent, the detainees would not enjoy
constitutional
rights. Like the Germans denied review after World War II, the
detainees were noncitizens
who were neither arrested nor held in the United States. Guantánamo
was leased from
Cuba under a 1903 treaty, so it was not in the United States, and yet
there was
no tradition of applying Cuban law there.

In light of these circumstances, the Bush administration seemed to
believe it could
treat Guantánamo as a law-free zone. Unlike Iraq, which the
administration conceded
was a war zone in which the Geneva Conventions applied, Guantánamo was
initially
considered legally off the grid. It is often said by liberal critics
that Bush’s
anti-terror policies ignored the Constitution and international law.
But this is
a misleading oversimplification. What the choice of Guantánamo
demonstrates, rather,
is the profoundly legalistic way in which those policies were
designed. Using the
law itself, the lawyers in the Bush administration set out to make
Guantánamo into
a legal vacuum.

The court’s decision in Boumediene repudiated that attempt. The
majority, led by
Justice Kennedy, announced that for constitutional purposes,
Guantánamo Bay was
part of the United States: the detainees there enjoyed the same rights
as if they
had been held in Washington. The Boumediene decision was chiefly the
accomplishment
of Justice John Paul Stevens, who has made overturning the Bush
detention policies
into the legacy-defining task of his distinguished career. In key
opinions issued
in 2004 and 2006, Stevens chipped away at the special status asserted
for Guantánamo,
each time referring the matter of judicial review for the detainees
back to Congress.
But Congress repeatedly approved the administration’s proposals to
deny access to
the courts. To win the fight even against Congress, Stevens needed
Kennedy to provide
the fifth vote and hold that denying the Guantánamo detainees their
day in court
actually violated the Constitution.

The opinion that Kennedy wrote for the court’s majority in Boumediene
announced
squarely that the Constitution applied to the detainees being held in
Guantánamo.
Kennedy insisted that he was not overruling the precedent of the
German detainees
who were denied review. Unlike the situation with the Germans after
World War II,
he argued, the Guantánamo detainees had not received a hearing; the
Guantánamo naval
base was entirely under U.S. control; and granting hearings was not so
impractical
that it would fundamentally disrupt the operation of the prison. In
effect, however,
Kennedy’s opinion rejected what the Bush administration claimed to be
the rule that
noncitizens held outside the United States were not entitled to
constitutional protection.

Having refused to overturn Roe v. Wade in the 1990s and having
championed gay rights
in recent years, Kennedy may now be depicted as an unlikely liberal
hero — the latest
in a line of Republican appointees (one of whom is John Paul Stevens)
who gradually
evolved into staunch exponents of liberal rights. The key to Kennedy’s
reasoning
in the Guantánamo case was his expansive conception of the rule of
law. In the central
paragraph of the decision, Kennedy explained his underlying logic: if
Congress and
the president had the power to take control of a territory and then
determine that
U.S. law does not apply there, “it would be possible for the political
branches
to govern without legal constraint,” he wrote. Government without
courts, Kennedy
suggested, was not constitutional government at all. “Our basic
charter,” he went
on, “cannot be contracted away like this.”

What seemed to most offend Kennedy about Guantánamo, then, was
precisely the effort
by the executive branch, with the approval of Congress, to make
Guantánamo into
a place beyond the reach of any law. By insisting on its own
authority, the court
was striking a blow for law itself. In this way, the court embraced
the ideal of
the outward-looking Constitution: a document that protects the rights
not only of
citizens within the United States but also of noncitizens outside its
formal borders.
This Constitution, by extension, stands for the ideal of legal justice
being made
available to all persons — no matter where they might be.

Holding that the Constitution did indeed follow the flag to Guantánamo
was an act
with tremendous international resonance. It can even be read as an
attempt to hold
the Bush administration to its own rhetoric about democracy. The rule
of law, after
all, is not solely an American ideal but one that is broadly shared
globally. To
insist that some law covers all people wherever they may be found
underscores the
universality that law aims to create.

The Court’s Conservative Victory

From the conservative point of view, of course, Kennedy’s decision did
not follow
from the basic principle of the rule of law. According to the four
conservative
dissenting justices, whose views closely tracked those of the Bush
administration,
the Constitution unquestionably binds the government. But according to
their view,
the Constitution also allows the president and Congress, acting
together, to lease
or even acquire territory and govern it without allowing recourse to
the courts.
Indeed, this view was precisely the one adopted by the Supreme Court
after the Spanish-American
War, when the United States was a rising imperial power. The
dissenters in Boumediene
actually agree with the liberals that law does apply to Guantánamo;
they just maintain
that the courts are not part of it.

The conservative cause may have lost in Boumediene. It prevailed,
however, in a
case decided last March that garnered little public attention— but
that was, in
its own way, just as important to defining our constitutional era. The
case, Medellín
v. Texas, grew from a conflict between the Supreme Court and the
International Court
of Justice over death-row inmates in the United States who were
apparently never
told they had the right to speak to the embassies of their home
countries, a right
guaranteed by a treaty called the Vienna Convention on Consular
Relations. The international
court declared that the violation tainted the inmates’ convictions and
insisted
that they have their day in court to try to get them overturned.

The Supreme Court disagreed. In his initial trial and appeal, José
Medellín, the
man who brought the Supreme Court case, did not raise his right to
speak to his
embassy — presumably because, having never been informed of the right,
he had no
idea that it existed. Under the arcane rules for postconviction
judicial review,
a defendant ordinarily cannot ask the courts to consider legal
arguments that were
not raised when he was tried in the first place. And in its decision,
the court
upheld those rules: the violation of the treaty, it held, did not
demand any special
exception to the usual rules governing review. The fact that the
United States had
violated its international-treaty obligation was of no use on death
row. Medellín
was executed by the State of Texas on Aug. 5.

What made this conflict between the Supreme Court and the
International Court of
Justice particularly stark was that the Bush administration had for
once taken the
side of international law. Before the Supreme Court issued its
opinion, President
Bush issued a memorandum advising state courts to follow the judgment
of the International
Court of Justice. With the ruling of the Supreme Court on one side,
and that of
the international court — endorsed by the president — on the other,
just what did
the Constitution require the state courts to do?

The United States signed three separate treaties stating that it
undertook to obey
the judgments of the International Court of Justice. But the Supreme
Court bridled
at the thought that the international court’s decision might trump its
own. This
was not just instinctive turf-protection, though that concern no doubt
played a
part. Never before had an international body replaced the Supreme
Court in telling
lower courts in the United States that their own procedural rules were
unacceptable.
The natural order of things seemed to be turned on its head.

The Supreme Court held that the treaties obligating us to listen to
the International
Court of Justice were not binding law. Chief Justice John Roberts
wrote that a careful
reading of the text of the treaties revealed no intention to subject
the United
States to the judgments of the international court — not, that is,
unless Congress
passed a separate statute demanding such obedience.

This opinion upended the rules for applying treaties in the U.S.
courts. In dissent,
Justice Breyer painted a grim picture of the consequences. If treaties
were not
automatically binding law unless they said so, he wrote, the
applicability of some
70 treaties involving economic cooperation, consular relations and
navigation was
now thrown into doubt. The rest of the world, he intimated, would be
left wondering
whether the United States intended to obey its treaty obligations or
not — which
is not a trivial concern when the world also suspects the United
States of ignoring
its obligations of humane treatment under the Geneva Conventions. To
Breyer, the
decision was a reversal of nearly 180 years of precedent and a message
to the world
that the United States was prepared to play fast and loose with its
international
commitments.

When the justices rejected the death-row appeal, they were acting on
the basis of
familiar conservative concerns. The judges of the International Court
of Justice
were not appointed according to any constitutional procedure. To let
the international
body decide matters of law that would be binding for state courts
seemed fundamentally
undemocratic — an unjust usurpation of the judicial function. It would
be absurd
for the Constitution, as the core document of our democracy, to
require such a result.

The old precedent regarding treaties was thus, according to the
conservatives, truly
obsolete. It made no sense to apply it in a globalized world where
treaties are
not just straightforward agreements between sovereign states; now,
they often create
irresponsible international tribunals to adjudicate their meaning. If
the judgments
of an international court were to be obligatory, a democratically
legitimate body
should say so explicitly — either the Senate that approved the treaty
promising
compliance or the whole Congress in a separate legal enactment.

By its own lights, the Supreme Court in the Medellín case was reading
the Constitution
to guarantee us control over our own destiny. That meant turning away
from international
law in a systematic and profound sense. The cost to the United States
might be real,
but the court considered it justified by the preservation of our
democratic sovereignty.

Which Side Is Right?

The Boumediene decision saw the Constitution as facing outward,
expanding and promoting
the rule of law throughout the world. The Medellín decision, by
contrast, saw the
Constitution as a domestic blueprint designed to preserve and protect
the United
States from foreign encroachment, even at some cost to the
international rule of
law.

Underscoring the tension between the two cases is the fact that nearly
all the justices
of the Supreme Court voted consistently across both of them. The four
conservatives
— Justices Antonin Scalia, Clarence Thomas, John Roberts and Samuel
Alito — dissented
from the extension of habeas corpus rights to Guantánamo Bay in
Boumediene and joined
the majority opinion in Medellín that made it harder for treaties to
become law.
Meanwhile the court’s liberals — Justices John Paul Stevens, David
Souter, Ruth
Bader Ginsburg and Stephen Breyer — joined the majority in the
Guantánamo case,
and all but Stevens dissented in Medellín. (Though Stevens voted with
the majority
in that case, he did so seemingly only for tactical reasons; he wrote
a separate,
concurring opinion that did not embrace the logic of Roberts’s
majority opinion.)

The key vote in both cases was that of Kennedy. In both cases, he
acted to uphold
the prerogatives of the Supreme Court — against the president and
Congress in the
Guantánamo case, and against the international court in the Medellín
decision. And
Kennedy does argue that such judicial supremacy is crucial to the rule
of law. But
the other justices did not see the cases in those terms. To them, the
cases were
not primarily about the perennial issue of the division of powers
between the different
branches of government. To these eight justices, the cases were about
what sort
of Constitution we have: either outward-facing or inward-looking.

Who is right? It is tempting to conclude that the Constitution must
look inward
and outward simultaneously. But embracing contradiction is not the
answer, either.
Instead what we need to resolve the present difficulty is a subtle
shift in perspective.

There is an important way in which neither of the predominant
approaches to the
Constitution and the international order can provide a fully
satisfactory answer
to the problem. Although they differ deeply about what the
Constitution teaches,
the two sides share a common image of what the Constitution is. Both
imagine it
to be a blueprint offering a coherent worldview that will allow us to
reach the
best results most of the time. According to this shared assumption,
the way to find
the real or the true Constitution is to identify the core values that
the document
and the precedents stand for, and to use these as principles to
interpret the Constitution
correctly.

There is nothing wrong with this picture of constitutional
interpretation when it
is applied to the vast majority of constitutional decisions, from the
right to bear
arms to the meaning of equal protection of the laws. Deciding what
deep principles
emerge from our history can help resolve even problems unimagined by
the framers,
like those presented by abortion or claims to gay rights. Most of the
time, constitutional
interpretation proceeds in precisely this way — and so it should.

But when we are talking about the basic direction the country needs to
face in order
to achieve its goals in the modern world, deriving principles from
history is often
inadequate to dictate outcomes. The national and global situations in
which we find
ourselves are ever-changing. The ship of state must navigate in waters
that correspond
to no existing chart. The complexity of the world, coupled with the
profound changes
in the role the United States plays in it, is a very different thing
from, say,
our progressive recognition that African-Americans, women, gays and
lesbians deserve
the same equality and respect as everybody else.

For this reason, when the world has changed drastically, the
Constitution has always
had the flexibility to change along with it. The industrial economy,
for example,
was so much bigger and more complex than the economy of 1787 that the
old constitutional
order no longer worked. The New Deal ushered in systematic regulation
and administrative
agencies that had no real place in the three-branch system — but that
we now accept
as constitutional today. The original federal system limiting the
power of the central
government relative to the states also had to be reconfigured when the
economy became
truly national. The changed nature of the president’s war powers
offers yet another
pragmatic example of flexibility and change. Modern wars demand rapid
decision-making
and overwhelming concentrations of force; in the light of these needs,
we have largely
abandoned the framers’ model for war powers, which gave Congress much
more authority
than it is able to exercise today.

On each occasion that the Supreme Court has had to confront such
drastically changed
circumstances, it has adopted the approach of seeing constitutional
government as
an ongoing experiment. Justice Oliver Wendell Holmes Jr. wrote that
our system of
government is an experiment, “as all life is an experiment.” Justice
Robert Jackson,
confronting the separation of powers — about which the Constitution is
cryptic at
best — admitted frankly that nothing in the document, the case law or
the scholars’
writings got him any closer to an answer. Then he tried to come up
with his own
rules, designed to reflect political reality and the changed nature of
the presidency.

Looking at today’s problem through the lens of our great
constitutional experiment,
it emerges that there is no single, enduring answer to which way the
Constitution
should be oriented, inward or outward. The truth is that we have had
an inward-
and outward-looking Constitution by turns, depending on the needs of
the country
and of the world. Neither the text of the Constitution, nor the
history of its interpretation,
nor the deep values embedded in it justify one answer rather than the
other. In
the face of such ambiguity, the right question is not simply in what
direction does
our Constitution look, but where do we need the Constitution to look
right now?

Answering this requires the Supreme Court to think in terms not only
of principle
but also of policy: to weigh national and international interests; and
to exercise
fine judgment about how our Constitution functions and is perceived at
home and
abroad. The conservative and liberal approaches to legitimacy and the
rule of law
need to be supplemented with a healthy dose of real-world pragmatism.
In effect,
the fact that the Constitution affects our relations with the world
requires the
justices to have a foreign policy of their own.

On the surface, it seems as if such inevitably political judgments are
not the proper
province of the court. If assessments of the state of the world are
called for,
shouldn’t the court defer to the decisions of the elected president
and Congress?
Aren’t judgments about the direction of our country the exclusive
preserve of the
political branches?

Indeed, the Supreme Court does need to be limited to its proper role.
But when it
comes to our engagement with the world, that role involves taking a
stand, not stepping
aside. The reason for this is straightforward: the court is in charge
of interpreting
the Constitution, and the Constitution plays a major role in shaping
our engagement
with the rest of the world. The court therefore has no choice about
whether to involve
itself in the question of which direction the Constitution will face;
it is now
unavoidably involved. Even choosing to defer to the other branches of
government
amounts to a substantive stand on the question.

That said, when the court exercises its own independent political
judgment, it still
does so in a distinctively legal way. For one thing, the court can act
only through
deciding the cases that happen to come before it, and the court is
limited to using
the facts and circumstances of those cases to shape a broader
constitutional vision.
The court also speaks in the idiom of law — which is to say, of
regular rules that
apply to everyone across the board. It cannot declare, for instance,
that only this
or that detainee has rights. It must hold that the same rights extend
to every detainee
who is similarly situated. This, too, is an effective constraint on
the way the
court exercises its policy judgment. Indeed, it is this very
regularity that gives
its decisions legitimacy as the product of judicial logic and
reasoning.

Why We Need More Law, More Than Ever

So what do we need the Constitution to do for us now? The answer, I
think, is that
the Constitution must be read to help us remember that while the war
on terror continues,
we are also still in the midst of a period of rapid globalization. An
enduring lesson
of the Bush years is the extreme difficulty and cost of doing things
by ourselves.
We need to build and rebuild alliances — and law has historically been
one of our
best tools for doing so. In our present precarious situation, it would
be a terrible
mistake to abandon our historic position of leadership in the global
spread of the
rule of law.

Our leadership matters for reasons both universal and national. Seen
from the perspective
of the world, the fragmentation of power after the cold war creates
new dangers
of disorder that need to be mitigated by the sense of regularity and
predictability
that only the rule of law can provide. Terrorists need to be deterred.
Failed states
need to be brought under the umbrella of international organizations
so they can
govern themselves. And economic interdependence demands coordination,
so that the
collapse of one does not become the collapse of all.

From a national perspective, our interest is less in the inherent
value of advancing
individual rights than in claiming that our allies are obligated to
help us by virtue
of legal commitments they have made. The Bush administration’s lawyers
often insisted
that law was a tool of the weak, and that therefore as a strong nation
we had no
need to engage it. But this notion of “lawfare” as a threat to the
United States
is based on a misunderstanding of the very essence of how law
operates.

Law comes into being and is sustained not because the weak demand it
but because
it is a tool of the powerful — as it has been for the United States
since World
War II at least. The reason those with power prefer law to brute force
is that it
regularizes and legitimates the exercise of authority. It is easier
and cheaper
to get the compliance of weaker people or states by promising them
rules and a fair
hearing than by threatening them constantly with force. After all, if
those wielding
power really objected to the rule of law, they could abolish it, the
way dictators
and juntas have often done the world over.

On those occasions when the weak, using the machinery of courts, are
able to vindicate
their legal rights, the reason their demands are honored is generally
that those
who have the most influence in the system recognize it is in their own
long-term
interest to make the concession. Those who consider law a tool of the
weak mistake
these rare trade-offs for defeat, when — from the perspective of power
— they are
simply part of the cost of doing business. This is why, for example,
the police
and prosecutors embrace the Miranda warnings: they require that
defendants be read
their rights. But once the formality is satisfied, it is almost
guaranteed that
the defendants’ statements will be admissible into evidence.

Applying the lesson that the world and the United States need law more
than ever
at this particular moment yields some specific conclusions. The
executive branch
certainly should be accorded considerable leeway in defending the
nation from attacks
by stateless groups like Al Qaeda. But it was an error of
constitutional dimensions
to choose Guantánamo as a global symbol of those efforts precisely
because of the
way it seemed to be outside the reach of our domestic Constitution,
the law of any
other country or international law itself.

The Supreme Court therefore was right to reinsert Guantánamo in the
legal grid —
but not because this was definitively the best reading of the
constitutional materials,
which were contradictory and indeterminate. What justifies the
decision is the practical
necessity and importance of reassuring the citizens of the United
States and the
world at large that the United States had not given up the role it
assumed after
World War II as the chief proponent of the rule of law worldwide. Not
every Supreme
Court decision has this monumental symbolic effect — but the
Boumediene case was
guaranteed to be seen as either a victory or a defeat for the very
idea of law itself.
In an ideal world, the Supreme Court would not have had to send this
message, and
it could have avoided the substantial expansion of its own power to
which it was
driven by the foolishness of the Bush administration.

The Medellín case is trickier. On one hand, globalization inevitably
inserts us
into an ever-widening array of treaty regimes, each with its own
mechanism of adjudication.
There is no turning back the clock to the simpler world of the
framers. Joining
the World Trade Organization, as we have, or the Kyoto Protocol, as we
ultimately
have not, does detract from the democratic legitimacy of the laws that
govern us.
This lesson can be easily learned from a glance at the European Union,
where countries
increasingly cede sovereign authority to the bureaucrats in Brussels.
Under these
circumstances, there is much to be said for requiring either the
treaty ceding this
authority to speak explicitly, or else for Congress to make this
concession expressly,
in full view of the public who elects it.

On the other hand, there is the problem of timing. Had the United
States not invaded
Iraq under a claim of international law that many other countries
rejected, or had
the Guantánamo disaster been avoided by the exercise of wiser
judgment, it would
be relatively easy to conclude that the Supreme Court was right to
pull us back
from too rapid an entrance into an international order that undercuts
our sovereignty.
But the treaty decision came at just the moment when the United States
was trying
to reassert its commitment to the rule of law internationally. The
conservatives
who carried the day did not care. For them, upholding international
judgments that
differ from our own courts’ is inconsistent with our core
constitutional values.
The message sent, then, in the world and at home, is precisely the
wrong one for
this historical juncture, when the United States needs — at least for
the moment
— to convince the world that the project of international legality is
one in which
we believe.

What the Election May Bring

There are going to be many more opportunities in the coming years for
the court
to take a position on the Constitution and the international order.
Should John
McCain become president, there is good reason to believe he would be
more committed
than President Bush to the international rule of law. Influenced by
his experience
of being tortured in Vietnam, McCain has sponsored legislation
requiring that U.S.
government personnel comply with the Geneva requirement of humane
treatment of prisoners.
Yet McCain has also snubbed Justice Kennedy, promising to nominate
justices like
Roberts and Alito in their ideological orientation; justices of this
persuasion
are likely to see the Constitution in largely inward-looking terms.

Meanwhile, Barack Obama, with his globalized upbringing and insistence
on multilateralism,
could be expected, as president, to nominate justices more sympathetic
to an outward-looking
Constitution. But if, as seems likely, the first retirees from the
court are liberals,
the best Obama could hope for would be to maintain the status quo —
not to institutionalize
a liberal majority for the future.

Whichever candidate is elected, once the Bush administration is out of
office, the
war on terror will almost certainly be waged differently, and the
constitutional
issues that arise will not be exactly the same as before. Guantánamo
Bay will probably
be closed, and the legal team that planned it will be long gone. But
most of its
detainees will still have to be tried, and their appeals will reach
the Supreme
Court once again. Of course we will still want to catch terrorists —
especially
before they act — and we will have to figure out what to do with them
when we do.
No matter who is president, the United States will still find itself
deeply enmeshed
in the affairs of Afghanistan, even if in the next few years there are
substantial
troop withdrawals from Iraq.

At the same time, the processes of globalization have not been turned
back by the
war on terror. The growing global financial crisis calls for more
international
regulation, not less. Conflicts between U.S. courts and international
tribunals
about the meaning of our international obligations are going to become
more and
more common, just as they have become for members of the European
Union. Next time,
the Supreme Court may not be able to avoid conflict by asserting that
the courts
are not obligated to listen to the international body. When that
happens, new doctrines
and solutions are going to have to be developed.

In these all-important processes, as always in the history of the
court, people
are everything. Justices vary widely in temperament, ideology,
intelligence and
preparedness. The best justices can be really very impressive; the
worst ones truly
disastrous.

Charged with interpreting the Constitution and therefore shaping its
contemporary
orientation, the Supreme Court needs to be extraordinarily sensitive
to the demands
of history. When the court gets it wrong, the consequences can be
serious. The Constitution
we get will still be the one we deserve, but our deserts need not be
good ones.
The Constitution, let us not forget, gave us slavery and segregation.
It gave us
dysfunctional limitations on progressive legislation that was
desperately needed
in the years before the Great Depression. We like to think the
Constitution is always
leading us toward a more perfect union. But this has not always been
the case, and
as with any experiment, there is no guarantee that it will be in the
future.

Noah Feldman, a contributing writer for the magazine, is a law
professor at Harvard
University and an adjunct senior fellow at the Council on Foreign
Relations.

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