# Do these judges not read the Constitution? **URL:** \ **Category:** The BBQ Pit\ **Created:** [September 9, 2005, 4:32pm UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839 "2005-09-09T16:32:12Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 9, 2005, 6:43pm UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/21 "2005-09-09T18:43:33Z")
> [@Mr. Moto](#): > > **Bricker** , I agree with you in general about judicial activism, but I fail to see that this was a case of suck. > > Seems to me that the appeals court was bound by precedent here, especially _ex parte Quirin_. > > Do you have some other reason to damn it as an activist decision? This case extends _ex parte Quirin_’s facts. In particular, I think there is a principled distinction to be made between a state of war, declared between the US and a nation-state, and our current inchoate “War on Terror.” I don’t mean to denigrate the necessary actions in the fight against terrorism… but we knew war with Germany was over when Germany surrendered. Who is authorized to surrender on behalf of “Terror”? In _ex parte Quirin_, we were faced with a finite length of time during which the administration’s broad powers would be given deference. That limit is not in place here. For those policy reasons, I would distinguish _Quirin_. ---
**Author:** ![Giles](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/giles/32/60_2.png) [@Giles](https://boards.straightdope.com/u/Giles)\ **Post date:** [September 9, 2005, 6:45pm UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/22 "2005-09-09T18:45:31Z")
> [@John Mace](#): > > Hamdan ain’t no US citizen. And that’s a big, big difference. The case discussed in the OP concerns US citizens, on US soil. I find this troubling, too (especially as I am a non-citizen resident in the US) – the relevant parts of the constitution refer to “person” and “accused”, and do not on the face of it limit their protections to citizens. So I don’t understand how they can be read not to protect aliens detained and accused of crimes within the United States. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 9, 2005, 6:46pm UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/23 "2005-09-09T18:46:43Z")
> [@Giles](#): > > The problem is the Bill of Rights, which gives rights under the Constitution. It was not enacted by a few judges, but by the Congress and by 3/4 of the States. It’s the Bill of Rights (specifically amendment 6) which gives the right to a “speedy and public trial, by an impartial jury”. “Activist” judges have taken this right away from Padilla. _sigh_ Does the Sixth Amendment say anything about what factors may toll the running clock on a speedy trial? Are there ANY such factors? How do we know, since the Sixth Amendment doesn’t enumerate them? ---
**Author:** ![betenoir](https://avatars.discourse-cdn.com/v4/letter/b/258eb7/32.png) [@betenoir](https://boards.straightdope.com/u/betenoir)\ **Post date:** [September 9, 2005, 6:47pm UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/24 "2005-09-09T18:47:38Z")
And can I just say as general comment, I find it painfully depressing that people involved in our government have so little faith in our judicial processes…who seem to see due process as a favor we do the accused (and therefor something we can do away with if the accused is scum enough) and not the most reasonable way to arrive at real justice. Sad. ---
**Author:** ![Giles](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/giles/32/60_2.png) [@Giles](https://boards.straightdope.com/u/Giles)\ **Post date:** [September 9, 2005, 6:55pm UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/25 "2005-09-09T18:55:00Z")
> [@Bricker](#): > > Does the Sixth Amendment say anything about what factors may toll the running clock on a speedy trial? > > Are there ANY such factors? How do we know, since the Sixth Amendment doesn’t enumerate them? This is hardly the only case in the Constitution where you have a vague standard. So, no, a court is unlikely to argue over a week here or there; but on the other hand, 3 years with no foreseeable prospect of a trial does not seem like a “speedy trial”, and the Court of Appeals should have said so. ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [September 9, 2005, 6:56pm UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/26 "2005-09-09T18:56:55Z")
> [@betenoir](#): > > What? > > I’m having a hard time finding where this case has any bearing on Padilla’s. It involves Herbert Haupt being _tried_ (not held without trial) under the Articles of War act. And SCOTUS found that he could be, as opposed to civilian court, despite being a citizen. > > Not the same thing as denying a trial. Sure it is. All of the Quirin saboteurs were sentenced without the benefit of a trial in an American court. They were convicted by military tribunal instead. Six of them were executed, including Haupt. The remaining two were granted clemency for their cooperation, and got long prison sentences instead. In 1948, Truman freed them on condition of deportation, and they went back to Germany. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 9, 2005, 6:56pm UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/27 "2005-09-09T18:56:58Z")
> [@Scott Plaid](#): > > First, if we concluded that an unborn child has rights, then we still have to conclude that those rights trump those of the mother. Sure, so it sounds nice when/if you claim that she is killing her child, but if I claim you want a sixteen year-old to carry to term the baby she was given by her stepfather, then it doesn’t sound so pretty. Same thing is true for all rights. The Fourth Amendment doesn’t sound so pretty when I point out that we’re letting a serial killer go free because the only evidence we have against him was obtained without a warrant. Are we really going to use “sounding pretty” as a basis for constitutional law? > [@](#): > > Also, I would have to say theat the constitution only gives rights to PEOPLE, not to companies, or fetuses. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are \*\*reserved to the States \*\*respectively, or to the people. States have plenary power. Not the federal government. It has only those powers which the Constitution gives it. The Constitution does not give the federal government the power to define or regulate abortion. Even if I concede that abortion is simply a medical procedure involving one patient… the state of Virginia can prohibit or regulate face-lifts; the federal government cannot stop Virginia from doing that. To make the inductive leaps that: 1 - there is a federal constitutional right to privacy; 2 - that is applicable to the states via the Fourteenth Amendment; 3 - and it specifically encompasses abortion; 4 - but only in the first trimester; …those are more inductive leaps than the Fourth Circuit just made concerning Padilla. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [September 9, 2005, 6:57pm UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/28 "2005-09-09T18:57:03Z")
> [@Giles](#): > > I find this troubling, too (especially as I am a non-citizen resident in the US) – the relevant parts of the constitution refer to “person” and “accused”, and do not on the face of it limit their protections to citizens. So I don’t understand how they can be read not to protect aliens detained and accused of crimes within the United States. But if you read the whole amendment it MUST apply at least only to crimes committed within the borders of the US (my emphasis): > [@](#): > > In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. So, yes, I would say this covers non-US citizens committing crimes on US soil. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 9, 2005, 6:58pm UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/29 "2005-09-09T18:58:16Z")
> [@Giles](#): > > This is hardly the only case in the Constitution where you have a vague standard. So, no, a court is unlikely to argue over a week here or there; but on the other hand, 3 years with no foreseeable prospect of a trial does not seem like a “speedy trial”, and the Court of Appeals should have said so. How about a case in which a person is found to be unfit to stand trial? Are those determinations constitutionally infirm? ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [September 9, 2005, 6:58pm UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/30 "2005-09-09T18:58:23Z")
> [@Bricker](#): > > This case extends _ex parte Quirin_’s facts. In particular, I think there is a principled distinction to be made between a state of war, declared between the US and a nation-state, and our current inchoate “War on Terror.” I don’t mean to denigrate the necessary actions in the fight against terrorism… but we knew war with Germany was over when Germany surrendered. Who is authorized to surrender on behalf of “Terror”? > > In _ex parte Quirin_, we were faced with a finite length of time during which the administration’s broad powers would be given deference. That limit is not in place here. > > For those policy reasons, I would distinguish _Quirin_. I can understand this, but given the _Quirin_ precedent, was this a call a lower court should have made? ---
**Author:** ![Larry\_Borgia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/larry_borgia/32/156_2.png) [@Larry\_Borgia](https://boards.straightdope.com/u/Larry_Borgia)\ **Post date:** [September 9, 2005, 7:08pm UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/31 "2005-09-09T19:08:07Z")
I may not be a constitutional scholar but this seems very troubling. **Bricker’s** analysis distinguishing it from _Quirin_ seems on the money to me, since there always have been and probably always will be terrorists. How this ruling doesn’t go against the 6th amendment is baffling to me. While I agree with **Bricker** the _Roe_ was wrongly decided, something different seems to be going on here. In Roe, a new constitutional right was granted by judicial fiat rather than by actually amending the constitution. Here a right–a slew of rights, in fact–is being taken away. That is even more disturbing. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [September 9, 2005, 7:13pm UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/32 "2005-09-09T19:13:19Z")
> [@Larry Borgia](#): > > I may not be a constitutional scholar but this seems very troubling. **Bricker’s** analysis distinguishing it from _Quirin_ seems on the money to me, since there always have been and probably always will be terrorists. How this ruling doesn’t go against the 6th amendment is baffling to me. > > While I agree with **Bricker** the _Roe_ was wrongly decided, something different seems to be going on here. In Roe, a new constitutional right was granted by judicial fiat rather than by actually amending the constitution. Here a right–a slew of rights, in fact–is being taken away. That is even more disturbing. Does the constituion confir any rights on non-US citizens living outside the borders of the US? If not, how can a right have been taken away? ---
**Author:** ![Larry\_Borgia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/larry_borgia/32/156_2.png) [@Larry\_Borgia](https://boards.straightdope.com/u/Larry_Borgia)\ **Post date:** [September 9, 2005, 7:19pm UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/33 "2005-09-09T19:19:05Z")
> [@John Mace](#): > > Does the constituion confir any rights on non-US citizens living outside the borders of the US? If not, how can a right have been taken away? From the OP, I gathered that the decision applies to U.S. citizens captured on U.S. soil, such as Jose Padilla. I may be wrong. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [September 9, 2005, 7:30pm UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/34 "2005-09-09T19:30:07Z")
> [@Larry Borgia](#): > > From the OP, I gathered that the decision applies to U.S. citizens captured on U.S. soil, such as Jose Padilla. I may be wrong. You’re right. I was confusing the case in the OP with the case brought up by \*\*Orbifold \*\*in his/her first post. Sorry for the confusion. I can’t see any justification for the ruling in the OP, and would expect the SC to overrule it. ---
**Author:** ![Orbifold](https://avatars.discourse-cdn.com/v4/letter/o/779978/32.png) [@Orbifold](https://boards.straightdope.com/u/Orbifold)\ **Post date:** [September 9, 2005, 7:30pm UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/35 "2005-09-09T19:30:58Z")
> [@John Mace](#): > > Hamdan ain’t no US citizen. And that’s a big, big difference. The case discussed in the OP concerns US citizens, on US soil. Read down another two paragraphs. > [@](#): > > The opinion says that Congress authorized the president to set up whatever military tribunal he deems appropriate when it authorized him to use “all necessary and appropriate force” to fight terrorism in response to 9/11. While the president has claimed the authority only to try foreign suspects before the tribunals, there’s nothing in the Hamdan opinion that stops him from extending their reach to any other suspected terrorist, American citizens included. If there _is_ something in the _Hamdan v. Rumsfeld_ opinion that prevents the president from applying the same authority to try U.S. citizens, I’d be happy to hear it. (Not that would make much difference to me, of course. Being a non-U.S. citizen living in the United States, I find your claims that Roberts and his colleagues were only going after non-Americans…less than reassuring.) ---
**Author:** ![Elysian](https://avatars.discourse-cdn.com/v4/letter/e/c77e96/32.png) [@Elysian](https://boards.straightdope.com/u/Elysian)\ **Post date:** [September 9, 2005, 7:55pm UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/36 "2005-09-09T19:55:13Z")
> [@Mr. Moto](#): > > You do realize that _ex parte Quirin_, which parallels this case closely and provides precedent for it, was decided in 1942, don’t you? Let’s talk about _Quirin_, shall we? Where was Haupt (the American in _Quirin_) caught? **In Chicago, landed from a German sub** Where was Padilla caught? **O’Hare Airport, off of a commercial jet** What kind of military things are we talking here? **Haupt had buried a military cap and bomb making equipment near he was caught** And Padilla? **No apparent military role when captured** Haupt: **uniformed, paid member of the German army** Padilla: **not a member of Al Qaeda** They both, however, apparently received training from their respective “leaders.” Key language from _Quirin_: [ul]Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance, and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague convention and the law of war. **Did Padilla enter this country as an associate of Al Qaeda, bent on hostile acts? _There is no evidence against Padilla EXCEPT ACCUSATIONS._** [/ul] [ul]Milligan, not being a part of or associated with the armed forces of the enemy, was a non-belligerent, not subject to the law of war… **This is from another, earlier case. The court distinguished it from _Quirin_ by saying that Milligan was a non-belligerent. Was Padilla a belligerent? There is no evidence of it. Padilla is more like Milligan, and that should be precedent. There, the court relied on the Bill of Rights and not a statute that Congress has passed when they wet themselves because of the scary Confederates.** [/ul] [ul]We have no occasion now to define with meticulous care the ultimate boundaries of the jurisdiction of military tribunals to try persons according to the laws of war. It is enough that petitioners here, upon the conceded facts, were plainly within those boundaries… **Tried to limit the stretch of this opinion to that of _Quirin_ only.** [/ul] So why do we continue using this case? Because the people who want to lock away an American citizen without all that BILL OF RIGHTS garbage pick it as their strongest argument. There is no evidence against Padilla, and yet you want to take away his right to a public, fair, speedy trial? For shame! ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [September 9, 2005, 7:57pm UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/37 "2005-09-09T19:57:40Z")
> [@Orbifold](#): > > Read down another two paragraphs. > > > [@](#): > > > > The opinion says that Congress authorized the president to set up whatever military tribunal he deems appropriate when it authorized him to use “all necessary and appropriate force” to fight terrorism in response to 9/11. While the president has claimed the authority only to try foreign suspects before the tribunals, there’s nothing in the Hamdan opinion that stops him from extending their reach to any other suspected terrorist, American citizens included. There doesn’t need to be anything in that opinion to prevent him from doing so, because the constitution does that. Why would the judges reaffirm what is already in the plain text of the constition? Also, there is the [_Hamdi_](http://en.wikipedia.org/wiki/Hamdi_v._Rumsfeld) decision by the SCOTUS: > [@](#): > > Though no single opinion of the Court commanded a majority, eight of the nine justices of the Court agreed that the Executive Branch does not have the power to indefinitely hold a U.S. citizen without basic due process protections through judicial review. And for you Scalia bashers out there: > [@](#): > > Justice Antonin Scalia’s dissent, joined by Justice John Paul Stevens, went the farthest in restricting the Executive power of detention. Scalia asserted that based on historical precedent, the government had only two options to detain Hamdi: either Congress must suspend the right to habeas corpus (a power provided for under the Constitution only in times of “insurrection” or “rebellion”), which hadn’t happened; or Hamdi must be tried under normal criminal law. Of course, there is this gem from Thomas: > [@](#): > > Justice Clarence Thomas was the only justice who sided entirely with the government and the Fourth Circuit’s ruling, based on his view of the important security interests at stake and the President’s broad war-making powers. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 9, 2005, 8:17pm UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/38 "2005-09-09T20:17:49Z")
> [@Mr. Moto](#): > > I can understand this, but given the _Quirin_ precedent, was this a call a lower court should have made? In my view, yes. While a lower court should never simply refuse to apply existing precedent, it is always free to meaningfully distinguish the cases through principled analysis. If I were reviewing the Fourth Circuit’s decision under an abuse-of-discretion standard, I would not overturn them. But if I reviewed their determination of law _de novo_, as the Supreme Court will, I’d reverse. ---
**Author:** ![Weirddave](https://avatars.discourse-cdn.com/v4/letter/w/919ad9/32.png) [@Weirddave](https://boards.straightdope.com/u/Weirddave)\ **Post date:** [September 9, 2005, 8:31pm UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/39 "2005-09-09T20:31:40Z")
> [@jayjay](#): > > As Friend **Homebrew** has already noted, bullshit. Roe v Wade takes away NO rights. The Massachusetts gay marriage ruling takes away NO rights. > > This ruling basically takes away the very core of our rights as US citizens. _U.S. vs Miller_ (1939) takes away some of your Second Amendment rights. It is a poor decision, based upon a one sided argument (Miller, being dead at the time, decided not to show up to the hearing) and displays an astounding ignorance of military equipment (the basis for the decision being that a shotgun has no military value. WTF?), yet liberals have been using it for almost seventy years as the basis for a lot of there arguments in favor of gun control. Without getting into the specifics of any one case here (although I’ll state my personal opinion for the record on issues that have been brought up here: I am in favor of a woman’s right to chose, I fully support the right of gay folks to marry, and I think the Government should put Mr. Padilla and all of the detainees in Gitmo on trial immediately.), Bricker is spot on in this thread, the knife cuts both ways. If you support the courts creating new extra-Constitutional rights (_Roe vs Wade_) or eliminating existing ones (_U.S. vs Miller_), then you have no room at all to scream when courts do the exact same thing in a direction that you personally happen to disagree with. What’s sauce for the goose… ---
**Author:** ![Weirddave](https://avatars.discourse-cdn.com/v4/letter/w/919ad9/32.png) [@Weirddave](https://boards.straightdope.com/u/Weirddave)\ **Post date:** [September 9, 2005, 8:33pm UTC](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839/40 "2005-09-09T20:33:46Z")
_their_ arguments… :smack: :rolleyes: [Previous page](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839.md?page=1) [Next page](https://boards.straightdope.com/t/do-these-judges-not-read-the-constitution/320839.md?page=3)