Let's Hope for an Originalist

By Crispin Sartwell

 

  The nomination of Samuel Alito is another opportunity for conservatives to pledge their allegiance to the Constitution, as originally intended. Indeed, that is supposedly why Bush nominated him and why conservatives immediately expressed their enthusiasm. But if Alito intends to enforce the framers' Constitution, the Bush administration is in terrible trouble.

    The Washington Post reports that there have been several suicide attempts among detainees at Guantanamo Bay, where dozens of prisoners are on hunger strikes. You might be suicidal too if you were arrested secretly and held without charge, without trial, without representation, without recourse, for years on end, perhaps for the rest of your life, in solitary confinement.

     Terrorists, of course, deserve no better. But calling these people terrorists when no evidence has been or has to be produced is idiotic. And if you simply believe it on the basis of a sheer assertion by the administration, then you are an enthusiast for tyranny. You do not deserve to live in a democracy. Certainly, you are an enemy of the Constitution in its details and in its essence.

    One basis of our Constitutional system is what is quaintly termed "the rule of law." This involves public promulgation of laws that apply equally to all persons, and adjudication by known judges in public proceedings. The Guantanamo prison - and the Bush administration's domestic and international system of secret detention facilities as a whole - is as clear a violation of the rule of law as anything could possibly be: it is rule by arbitrary decree.

    The enthusiasm of the Bush administration for torture must disgust all Americans, let alone originalist Supreme Court justices. Lawyers internal to the administration who have rendered a legal opinion - including such great Americans as Alberto Gonzales, John Ashcroft, and, one would suspect, Harriet Miers - have blandly asserted that American officials acting at the behest of the executive branch may torture anyone they like, for national security reasons, or - since no public justification need be rendered - for recreation.

    When torture survivor John McCain added an amendment to this year's defense appropriation bill explicitly prohibiting cruel, inhuman, and degrading treatment of prisoners, Dick Cheney reacted with anger, and threatened a veto.

    In a fairly typical case recently brought to light by NPR, an Iraqi named Manadel al-Jamadi - against whom there was by all accounts little evidence, was brutalized for hours by CIA interrogators at Abu Ghraib, who finally hung him up by his arms and beat him to death. No charges will be filed, and to repeat, Dick Cheney flatly asserts that this is well within executive prerogative.

     The argument - such as it is - is of course cast in terms of the war powers of the President. But the "war on terror" is interminable, and so the cancer on the Constitution is terminal.

    As every good religious conservative knows, in the afterlife one will be treated according to the principles by which one has treated others. Dick Cheney and Donald Rumsfeld will one day ascend to that big torture facility in the sky. Meanwhile, conservative Christian justices on the Supreme Court, such as Samuel Alito will be, might want to restrain them down here. 

    The first thing said about Alito, often, is that his nickname is "Scalito" because his conservative judicial philosophy is similar to Antonin Scalia's. This in some respects is extremely encouraging.

    In his dissent in the case of "Hamdi v. Rumsfeld," which was joined by John Paul Stevens, Scalia pointedly - and conclusively - destroyed the administration's basic claims to arbitrary power. Yasser Hamdi is an American citizen who has been held, in the classic Bush administration manner, for years, without charge etc.

    "The very core of liberty secured by our Anglo-Saxon system of separated powers," Scalia wrote, "has been freedom from indefinite imprisonment at the will of the Executive." He shows that the framers of the Constitution - in particular Alexander Hamilton - thought and wrote that the claim of the executive to absolute judicial power is the very essence of despotism.

     Let us hope Alito is enough of an originalist to have rudimentary respect for due process, for the prohibition on cruel and unusual punishment, for the right of trial by jury, for habeus corpus, for the separation of powers: in short, for the Constitution as intended by the framers. If so, the administration that appointed him, which aspires to tyrannical power while professing veneration for the Constitution, is in for a rude awakening.