More on Hamdan

Matthew Hoy
By Matthew Hoy on July 1, 2006

I've been doing some more blawg (that's a legal blog for those of you unfamiliar with all of the hip blog-terminology) reading on the Hamdan case and came across this piece over at Professor Bainbridge's place.

Bainbridge appears to suggest that the Congress re-pass the Detainee Treatment Act of 2005, re-stripping the court of jurisdiction over the Gitmo detainees. This time, however, the following sentence will be added at the very end: "This time we really mean it."

If you scroll down to the comments, you'll see one by Bruce Moomaw, complaining about the jurisdiction-stripping power given Congress in the Constitution. I'm re-printing my response to his comment here, because it's a good summary of the problem I've been having with the Supreme Court.

Bruce, help me out on this one:

That clause has always been a concealed dynamite charge planted in the very foundations of American democracy, which is why no one has ever dared to use it in American history.

Wasn't it just used in the Detainee Treatment Act of 2005?

Once in a long while some lone fruitcake like Dannemeyer suggests using it to strip the Supreme Court itself of power to review Presidential and/or Congressional decisions, and is totally and properly ignored.

Totally and properly ignored? It's part of the Constitution. It's part of the rules on which this nation was constructed. If you don't like the rule, the proper method would be a constitutional amendment to remove it. The Supreme Court's decision to ignore it is simple lawlessness.

The left goes ape when President Bush uses powers inherent in his role as president granted by the Constitution (NSA surveillance of international phone calls), but is perfectly willing to excuse the Supreme Court when they choose to ignore a constitutionally-valid, properly-passed law stripping them of jurisdiction.

And the sad thing is that the Court's reasoning on why the Detainee Treatment Act didn't apply to the Hamdan case is so...teenager-like.

The parent tells the child: "No ice cream."

The child eats the ice cream anyway because: "I'd already started this bowl."

Rules are rules. Change them if you want. Ignoring them simply continues the steep decline in respect for the nation's courts.

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