Presidents Jackson, Lincoln, Clinton, Bush, Obama, and the Writ of Habeas Corpus

President Obama has repeatedly asserted that he considers President Lincoln his role model, in terms of governance. There are parallels between the Lincoln and Obama administrations.

First, President Lincoln entered office during a period of conflict because, seven states had already seceded from the Union by the time Lincoln entered office on 4 March 1861. Likewise President Obama entered into office in the midst of conflicts in Iraq and Afghanistan involving United States armed forces.

Second, during the early days of the Civil War President Lincoln unilaterally and without consulting Congress suspended the right of Habeas Corpus. A similar situation now confronts President Obama because the Bush administration’s policies regarding the right of detainees suspected of terrorism or being enemy combatants with regard to applications for writs of habeas corpus, has placed the new Obama administration in the unenviable position of restoring the right of such suspects to petition for writs of Habeas Corpus. A process the Obama administration began on 21 January 2009 with an executive order.

Despite this order the right to petition for writs of Habeas Corpus has not officially been restored by executive order to the prisoners detained at Bagram Theater Internment Facility.

The question that I have been pondering is how quickly the Obama Administration will bring the executive branch into conformity with the stance assumed by the judicial system as elucidated in the following decisions of the Supreme Court of the United States:

1. Rumsfeld v.Padilla, 542 U.S. 426, 124 S. Ct. 2711; 159 L. Ed. 2d 513; 2004 U.S. LEXIS 4759; 72 U.S.L.W. 4584 (2004);
2. Rasul v. Bush, 542 U.S. 466, 124 S. Ct. 2686; 159 L. Ed. 2d 548; 2004 U.S. LEXIS 4760; 72 U.S.L.W. 4596 (2004);
3. Hamdi v .Rumsfled, 542 U.S. 507, 124 S. Ct. 2633; 159 L. Ed. 2d 578; 2004 U.S. LEXIS 4761; 72 U.S.L.W. 4607 (2004)
4. Hamdan v .Rumsfled, 548 U.S. 567, 126 S. Ct. 2749; 165 L. Ed. 2d 723; 2006 U.S. LEXIS 5185 (2006);
5. Boumediene v. Bush, 553 U.S. ___; 128 S. Ct. 2229; 2008 WL 2369628; 2008 U.S. LEXIS 4887 (2008).

Or will the Obama Administration follow choose to follow the reasoning that President Andrew Jackson articulated after hearing of the decision of the Supreme Court in Worcester v. Georgia 31 U.S. (6 Pet.) 515, 8 L.Ed. 483, (1832. President Jackson responded to the decision of the Court saying the decision of the supreme court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate. The idea that a decision of the Court could be "still born" was next articulated by President Lincoln in his administrations response to Chief Justice Taney's circuit court opinion in Ex Parte Merryman, 17 F. Cas. 144, (1861). It was not until 1866 that the suspension of the Writ of Habeas Corpus was rescinded. I would argue that the Bush administration adopted a similar stance relying on the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, enacted by the Clinton Administration in the aftermath of the 1993 World Trade Center bombing and the 1995 Oklahoma City bombing. A case could be made that AEDPA provided the heart of the position taken by the Bush Administration taken regarding the right of detainees to petition or writs of Habeas Corpus

Thoughts on Hate Speech

This post is my commentary on my friend JSF's last blog post. I am posting my comments this way because, when attempted to attach the comment to his initial post I had technical difficultiues with the comments feature. Having appropriately prefaced my thoughts I will now move onto the substantive portion of my response.


Hate speech whether it is espoused by liberals or conservatives inherently denigrates the foundations of the Republic. In aspiring to the ideal of freedom that the founders of the Republic both Federalist and Anti Federalist sought to engender we as Americans have a sacred charge to safeguard liberty, freedom, and their offspring the representational democracy that is the Republic of the United States of America. As Judge Learned Hand pointed out in 1944 at the height of the Second World War:

What do we mean when we say that first of all we seek liberty? I often wonder
whether we do not rest our hopes too much upon constitutions, upon laws and upon
courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it. And what is this liberty which must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not freedom to do as one likes. That is the denial of liberty, and leads straight to its overthrow. A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few; as we have learned to our sorrow. What then is the spirit of liberty? I cannot define it; I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the mind of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned but never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest. The Spirit of Liberty, (21 May 1944) reprinted in The Spirit of Liberty: Papers and Addresses of Learned Hand (Irving Dilliard ed., 3d ed., New York, A.A. Knopf, 1960)

It is seems that it is will of the individual partisans on either side of the aisle to affix to their senses blinders. I would argue that these blinders are by their nature designed to effectively fetter both the spirit in which, partisans approach issues and by extension limits the solutions offered by lobbyists in answer to problem. The blinders utilized by advocates both conservative and liberal elements are akin to the smoky glasses worn by judges in ancient China to hide their emotions from the parties involved in a case. The use of these blinders in effect creates a degree of tunnel vision that necessarily impacts the ability of lobbyists to readily adapt to changing circumstances in the socio-political, and economic realms. The absolutist rigidity exmplified by the radical left and radical right imposes a set of inherently small boundaries on the political spectrum beyond which the radicals on both sides are not willing to venture.
As long as these radical elements within the political spectrum continue to wage a war to annihilate the other by engaging in a destructive pattern of conduct that demonstrates a clear lack of civility the progress of the nation-state as whole will remain stagnant. A lack of constructive dialogue will only further weaken the Republic, and place it at the mercy of its enemies as Judge Hand argued in 1930.

For in such matters everything turns upon the spirit in which he approaches the
questions before him. The words he must construe are empty vessels into which he
can pour nearly anything he will. Men do not gather figs of thistles, nor supply
institutions from judges whose outlook is limited by parish or class. They must
be aware of the changing social tensions in every society which make it an organism; which demand a new schemata of adaptation; which will disrupt it, if rigidly confined. Sources of Tolerance, LXXIX University of Pennsylvania Law Review 1-14 (November 1930) reprinted in The Spirit of Liberty: Papers and Addresses of Learned Hand. (Irving Dilliard ed., 3d ed., NewYork, A.A. Knopf, 1960).

Expansion of American Political Thought: A Layperson's Opinion

It is true that by and large Americans have a short memory. I argue that it is true on both sides of the political fence. This allows both sides to engage in the endless cycle of debates about the validity of classical realism and its descendant, the neo-realism advocated by neo-conservatives as opposed to the neo-liberalism advocated by the proponents of the Obama administration that is slowly phasing out the classical liberalism advocated by the older generations of Democrats.

However, by adhering too rigidly to either one or the other schools of thought and their offspring, both the Republicans and Democrats have largely ignored or dismissed the theories advocated by the Rationalists led by Dr. Martin Wight.

While, do not think Rationalism possesses the answer to every socio-political and economic debate or question. I believe that both of the political parties and their partisans would benefit from a study of rationalist theory in the sense that it may broaden the viewpoint of both sides because, as they are now the partisans of both camps are blinded by a degree of tunnel vision not seen in the political arena since Reconstruction.