Ethics & Public Policy Center

Hamdan and Judicial Lawlessness

Published in National Review Online on June 30, 2006



From National Review Online’s same-day symposium on the Supreme Court’s ruling in the Hamdan military-commissions case:

“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Any sound mind would recognize this infamous “mystery” passage to be gibberish. But five justices on the Supreme Court — Stevens, Kennedy, Souter, Ginsburg, and Breyer — have expounded it (the first three in 1992 in Planned Parenthood v. Casey, and all five in 2003 in Lawrence v. Texas) as their license to override, in the name of “substantive due process,” whatever democratic enactments they disfavor.

It should come as no surprise that it was these same five justices in Hamdan who disregarded the fact that Congress, in the Detainee Treatment Act, plainly deprived the Court of jurisdiction in the case and who arrogantly and illegitimately intruded on the president’s conduct of military operations. The Mystery Five have simply practiced once again the utterly lawless willfulness that they have proclaimed to be their mission. And they undoubtedly know that they will receive ample cover, in the form of fawning accolades, from legal academia and the liberal media.

Our country (loosely defined) may well survive these continuing judicial depredations. But our Constitution — and the system of representative government, separated powers, and federalism that it established — won’t.

— Ed Whelan, an NRO contributor, is president of the Ethics and Public Policy Center

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