Constitution Hangs In By a Thread

The incomparable Publius headlines his one-sentence summary of today's decision in Boumediene v. Bush "Court Reaffirms Existence of Constitution". And much of the instant commentary has been pretty celebratory in tone. But for me the chief fact is how slender a thread this decision hangs upon: one vote.

If this decision means that the "Court Reaffirms Existence of Constitution" -- not to mention the fact that everyone is "endowed by their creator with certain inalienable rights, among these life, liberty and the pursuits of happiness", then the headline here as far as I'm concerned is that there is now a die-hard block of supporters of the "Elected Dictator" theory of the Constitution that is one-vote shy of a majority. Four guaranteed votes for tyranny: the only question is will the other five (including Kennedy, usually a pretty conservative guy) stand firm.

The next lede is that the conservative movement -- not as it exists in the fantasies of its idealistic proponents but actually existing conservatism -- is a solid block of pro-tyranny sentiment, with only a few outliers to throw things off.

Anyone who votes for McCain -- or does the functional equivalent (not voting, voting for a third-party candidate, etc.) -- should have not the slightest illusion about exactly what they're getting.

And any Senator who voted for Roberts or Alito; any Senator who failed to vote to filibuster Roberts or Alito; for that matter, any Senator who apologized for those who supported either of them even if they themselves voted properly -- should be deeply, deeply ashamed.

Today's ruling is not a triumph: it is a bare aversion of tragedy. We should be scared, not relieved.

(Souter apparently gave another, equally important reason that today's ruling is not a triumph in his concurrence; key quote here.)

PS: Glenn Greenwald writes a celebratory post and adds a cautionary update. He says in the latter:

Three of the five Justices in the majority... are widely expected by court observers to retire or otherwise leave the Court in the first term of the next President. By contrast, the four judges who dissented... are expected to stay right where they are for many years to come. John McCain has identified Roberts and Alito as ideal justices of the type he would nominate, while Barack Obama has identified Stephen Breyer, David Souter and Ginsberg (all in the majority today). It's not hyperbole to say that, from Supreme Court appointments alone, our core constitutional protections could easily depend upon the outcome of the 2008 election.

Far from hyperbole, Greenwald seems to me to be guilty of excessive understatement. It's not that "from Supreme Court appointments alone, our core constitutional protections could easily depend upon the outcome of the 2008 election"; it's that from Supreme Court appointments alone, our core constitutional protections do clearly depend upon the outcome of the 2008 election.

A vote for McCain is a vote against habeas corpus; a vote for McCain is a vote for an elected dictator, not a president. It's as simple as that.

PPS: I'm sure that, in defending the pro-tyranny side of the debate, a lot of conservatives will focus on the fact that the people in question are not U.S. citizens and were not captured in the U.S. This is part of a really disturbing trend towards the belief that non-citizens have "no rights" that the US government "was bound to respect". But the founders knew quite well that many of the rights of human beings -- including those of life, liberty and the pursuit of happiness -- were human rights. Freedom from arbitrary detention -- the heart and soul of tyranny -- is not a special privilege of citizenship. It is the basic minimum that every government is obliged to uphold for everyone.

Update: Just in case you doubt Actually Existing Conservatism's commitment to Executive Tyranny, Bush reacts poorly, and other Republicans are even more clearly pro-tyranny. (Incidentally, I'm not a journalist, but I suppose that in the spirit of "full disclosure" I should mention that I know the author of the first link). Both links via Steve Benen. Update to the Update: And of course McCain signs on to the pro-tyranny position. Why wouldn't he? Executive tyranny is a core principle of American conservatism in the twenty-first century. (And Lieberman, McCain's mini-me, signs on to the pro-tyranny position too. Again: why wouldn't he? Executive tyranny is a core principle of American conservatism in the twenty-first century. And Lieberman is a poster-boy for conservative values: aggressive war, torture, the abolition of habeas corpus, etc.) UtUtU: More McCain support for tyranny here. (via)