January 19, 2007
Some observations on our Constitutional Law class:
Some observations on our Constitutional Law class:
Kalishnikov assault rifle v. Kalashnikov machine gun
In Hamdi v. Rumsfeld case that we covered in class, the Government designated one of its citizens (Hamdi) as “enemy combatant’ and placed him into indefinite detainment. On the whole, the case was, although important, not particularly exciting. But one sentence, describing Hamdi’s capture in Afghanistan, caught my attention: “[D]uring the time when Northern Alliance forces were “engaged in battle with the Taliban,” “Hamdi’s Taliban unit surrendered” to those forces, after which he “surrender[ed] his Kalishnikov assault rifle” to them. . . .”
I was so amused by this sentence that in our class I made the following comment: “This is not actually a “Kalishnikov”, but a “Kalashnikov.” Plus, a Kalashnikov is not an “assault rifle” but a machine gun.” I understand that my comment had no connection to the due process issue examined in the case, but at least it is pertinent to the Government’s “due spelling” issue.
A Kalashnikov, also known as AK (from Russian’s “Avtomat Kalashnikova” – “Kalashnikov’s machine gun”), although a deadly weapon, is actually a wonderful thing, provided that you don’t shoot at people. It is light, easy to use and has almost no kick when you fire. But above all – it boost your confidence immensely. No need to pay your shrink obscene amount of money to drive up your self-esteem – just hold Kalashnikov for a while. In conjunction with my pleasant memories of firing Kalashnikov at my military training, the following thought came up to my mind: “When you hold Kalashnikov in your hands, you really feel that your speech is protected by the First Amendment” (partly inspired by the text of the Second Amendment). Oh, by the way, for those of you who might wonder – no, I did not shoot at people, animals, insects or plants.
Justice Thomas’ dissent in Hamdi
Apart from Kalashnikov issue I was also entertained by Justice Thomas’ dissent in Hamdi. His dissent took three pages in our text book and he mentioned five times in his opinion that the Supreme Court should not second-guess the Federal Government’s decision:
1. “[Hamdi’s] detention falls squarely within the Federal Government’s war powers, and we lack the expertise and capacity to second-guess that decision.” – Fine. What’s next?
2. “But the question whether Hamdi is actually an enemy combatant is “of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and. . . not subject to judicial intrusion or inquiry.” – I guess, you already mentioned something similar before.
3. “We lack the information and expertise to question whether Hamdi is actually an enemy combatant” – Yeah, I remember that.
4. “[W]e lack the capacity and responsibility to second-guess this determination.” – Are you writing this for amnesiacs?
5. “[T]he Executive’s decision that a detention is necessary. . . need not and should not be subjected to judicial second-guessing.” – No comments.
Woman’s right to abortion v. Man’s right to procreate
When we were discussing Roe v. Wade in class somebody raised a potential clash of interests in the following hypothetical, if I remember correctly:
A wife, who is pregnant, no longer wants to have a child; while her husband, on the contrary, wants to have kids. Isn’t it so that the wife’s right to abortion conflicts with the husband’s fundamental right to procreate?
Since I did not think so, I raised my hand and said: “Just go ahead and procreate with another woman.” Many people laughed. Funny as it may seem though, I do not think that the husband in the above hypothetical has a case. His right to procreate is effective as against the states, not vis-à-vis a concrete woman, even his wife. A state cannot deny him his right to procreate, unless it can show a compelling state interest. But his wife can and she doesn’t need to prove anything. After all, his wife is not the only fertile woman on earth. If she is unwilling to have kids now and the husband can’t wait, he should simply divorce her and – procreate with another woman, if that is what he really wants.
The husband’s potential argument that he wants to have kids with this particular woman is of no merit – I might also have a fundamental right to create family relationships but it doesn’t mean that I can convert my right into Jessica Alba’s obligation to marry me. I just can’t come to Ms. Alba and make her become my wife on the basis of my fundamental right alone (which, I admit, is a bit sad but the law is not always about keeping me content). So, guys, if your woman doesn’t want to have kids while you have a persisting desire to feel yourself a big boss when authoritatively directing your little kid what to do, don’t waste your time and money on raising the “fundamental right to procreate” argument in the court. The judges won’t buy it.
The mysterious penumbra
By far the most ingenious on my list of Justices is Justice Douglas. In Griswold v. Connecticut he came up with the most mesmerizing justification for finding that the Constitution protects the right to marital privacy although the latter is not explicitly stated in the Bill of Rights. So how can you actually protect some right if the Constitution’s text does not cover such a right, perplexed Justice Stewart asked? You call this right a “penumbra,” the sagacious Justice Douglas rejoined. A penumbra! What a powerful word. With this one word Justice Douglas protected the marital privacy. Just brilliant! How could all those great minds before Justice Douglas miss the beautiful and humble penumbra, lurking between the Constitution’s lines?
Essentially, Justice Douglas’ analysis can be expressed with the following formula:
AbracadabraConundrumPenumbra
- with Abracadabra being the initial personal opinion on the existence of the right to marital privacy in the Constitution even though its text is silent about such right. Once the Abracadabra is supported by legal precedents, doctrines and is worded in opaque legal language it becomes a legal Conundrum that a Justice is justified in using to prove his point in the opinion. If other Justices agree, the Conundrum becomes the law of the land. But Justice Douglas spared us of this trouble – a Conundrum was substituted with a Penumbra. At that time everybody must have been tired of legal conundrums while Penumbra was a fresh look and it sounded so scientific and appealing that five other Justices concurred with Mr. Douglas. And we should be thankful to him for this.
One little thought:
The United States do not have a living Constitution. They have a living Supreme Court instead.
(11.11.06)