Senator Lindsey Graham of South Carolina gets the award for the most unhinged reaction to the Supreme Court’s ruling: “I will also explore the possibility, if necessary, of a constitutional amendment to blunt the effect of this decision when it comes to protecting our men and women in the military and our nation as a whole.”
I suppose that his reaction to the decision comes from a fundamentally different concept of the country than I have. Graham sees the mission of the United States as protecting and governing its citizens. Not an unjustifiable or unreasonable vision. I demand and expect that the government protect us from our enemies, too. I can understand frustration with that mission imposed by today’s ruling.
But I see the United States of America as a government created, defined, and limited by the Constitution. Everything the government does is done by authority of the Constitution. It can do nothing — nothing at all — that the people have not authorized it to do by way of that document. So Senator Graham is right that if the ruling is truly unacceptable, then the response is to amend the Constitution.
But amending the Constitution to get rid of the Great Writ of Habeas Corpus is burning down the barn in order to prevent the cows from getting out of it. The Constitution is fundamentally about limiting the power of the government. The whole reason we had a revolution against the British Crown was because of an overreaching of executive authority. The whole reason we have a Constitution instead of a king is so that the government’s exercise of power can be limited by a fundamental law that protects the essential rights of all.
Put another way, we didn’t revolt against King George for lower taxes on our tea. We revolted because King George just started taxing our tea without so much as bothering to ask us if we thought taxing our tea was a good idea. So we set up a government where that sort of thing can’t happen again. And even more basic than the idea of taxation without representation was the idea that the King (and his agents in America) could not simply arbitrarily jail people without good cause and without charging them with crimes. Six years of confinement is long enough.
The condemnations of the Boumediene v. Bush case ultimately derive from a vision of executive power closer to that claimed by King George than the vision the Founders had for our chief executive. An argument to restrict the right of habeas corpus is, in the end, an argument in favor of letting the President simply confine people for any reason he likes and for as long as he likes. A free people cannot and should not tolerate that.
