The Supremes, like fools to folly

[pecunium]

I'm not going to talk about Citizen's Untited v FEC. (with its tortured extension of the dicta in Union Pacific v Santa Clara Co.. I think it's a bad thing, and I think the effect is, in the short term, not going to be as great as feared. Sandra Day O'Connor does point out the real place we might want to make a correction to ameliorate the possible evils of it is the idea of electing judges.

I will say, before I move onto the really important decision recently handed down, that this isn't a "free speech issue", no matter how it's cast. The restriction was, "content neutral" which has long been the test of allowable restriction (Yes, there is also the "clear and present danger" doctrine of Oliver Wendell Holmes Jr., but I think that a weaker precedent, even if more widely known and accepted). The complaint here was that the law, in all its majesty was forbidding both rich and poor alike from sleeping under bridges. It just happens the rich wanted to sleep under these bridges.

But the folly I want to talk about is Dred Scott v Sanders, because the Supreme Court, in esssence, recreated a class of, "non-persons" in the law. Last month (mid-Dec, 2009) they let stand a lower court ruling, which held that prisoners in Guantanamo aren't persons in the law.

The case was brought under the Religious Freedom Restoration Act, which applies to all persons. Since the court said it didn't apply, the prisoners in question aren't legal persons.

Worse, the Court said that claims to protection under the Geneva Conventions and the Alien Tort Statute weren't valid becase, "torture is a foreseeable consequence of the military’s detention of suspected enemy combatants.". [emphasis added].

There are a couple of things there which ought to give one pause. One, the lack of being a person in the law. There are a lot of things which that covers. Most of the Bill of Rights are rights of persons, and the main holding in Dred Scott was that slaves, not being legal persons, had no rights.

Secondly, ignore (if you can) that a US Court said torture was acceptable, note the use of the word suspected. Not convicted, not even proven, but suspected.

Third, ponder that anyone can be put in this legal non-person state. If you don't think it can happen to a citizen (who most certainly is a person in the law) go back and review the case of Jose Padilla.

Then look at this, Der Liebermouse demands suspect be declared terrorist and stripped of rights "“We write to urge the administration to immediately transfer Umar Farouk Abdul Mutallab, a foreign terrorist, to the Department of Defense to be held as an unprivileged enemy belligerent (UEB) and questioned and charged accordingly.”

"Questioned and charged accordingly," and, ""torture is a foreseeable consequence of the military’s detention of suspected enemy combatants."

I worry more about that than I do about poltical advertsing.

Comments

[don-fitch.livejournal.com]

Thanks for the heads-up -- I hadn't noticed/heard that the Supreme Court had upheld that odious Appellate Court Decision. *sigh* If I were younger -- considerably younger, that is -- I'd be seriously considering emigrating to a more civilized country.