Taking Back Our Constitution

Many of us will never forgive some of the current Supreme Court Justices-- for effectively installing Dubya as President against the will of a majority of voters. Those Justices that Dubya nominated have largely lived up to liberal expectations, that they would use their power to roll back gains our nation had achieved in the last century. Indeed, our very future as a representative democracy hangs by a slender thread. Fortunately this thread was not snapped in Hamdan v. Rumsfeld. Justices Stevens, Breyer, Ginsburg, Souter, and Kennedy managed to defend our constitutional system of checks and balances against the promoters of tyranny, or the euphemism for tyrannical power known as the unitary executive theory.

Justice Stephens:

Far from making the requisite substantial showing, the Government has failed even to offer a “merely colorable” case for inclusion of conspiracy among those offenses cognizable by law-of-war military commission. Cf. Quirin, 317 U. S., at 36. Because the charge does not support the commission’s jurisdiction, the commission lacks authority to try Hamdan. The charge’s shortcomings are not merely formal, but are indicative of a broader inability on the Executive’s part here to satisfy the most basic precondition—at least in the absence of specific congressional authorization—for establishment of military commissions: military necessity. Hamdan’s tribunal was appointed not by a military commander in the field of battle, but by a retired major general stationed away from any active hostilities. Cf. Rasul v. Bush, 542 U. S., at 487 (KENNEDY, J., concurring in judgment) (observing that “Guantanamo Bay is . . . far removed from any
hostilities”). Hamdan is charged not with an overt act for which he was caught redhanded in a theater of war and which military efficiency demands be tried expeditiously, but with an agreement the inception of which long predated the attacks of September 11, 2001and the AUMF. That may well be a crime,41 but it is not an offense that “by the law of war may be tried by military commissio[n].” 10 U. S. C. §821. None of the overt acts alleged to have been committed in furtherance of the agreement is itself a war crime, or even necessarily occurred
during time of, or in a theater of, war. Any urgent need for imposition or execution of judgment is utterly belied by the record; Hamdan was arrested in November 2001 and he was not charged until mid-2004. These simply are not the circumstances in which, by any stretch of the historical evidence or this Court’s precedents, a military commission established by Executive Order under the authority of Article 21 of the UCMJ may lawfully try a person and subject
him to punishment.

Justice Breyer:

The Court’s conclusion ultimately rests upon a single ground: Congress has not issued the Executive a “blank check.” Cf. Hamdi v. Rumsfeld, 542 U. S. 507, 536 (2004) (plurality opinion). Indeed, Congress has denied the President the legislative authority to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary.
Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine—through democratic means—how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same.

This language is what we should reasonably expect from our Supreme Court. It is not "liberal," by any means, it is merely a calm appeal to the core principles of government that guided our republic from its inception.

We as citizens cannot fail to use the democratic means available to us as voters to prevent any more apologists for tyranny like Scalia, Thomas, or Alito from being appointed to the Highest Court of the land.