Boumediene and the Role of the Court: Facilitating Power or Protecting the Weak

By Professor David Cole

Harvard Law Professor Noah Feldman writes in this Sunday’s New York Times Magazine that the central issue facing the Supreme Court in the coming years will be the relationship of the Constitution to the world – as he puts it, should the Constitution look inward, as conservatives often advocate, respecting only the decisions of democratically elected bodies within the United States; or should it look outward, as liberals often contend, spreading its rights protections universally.  Feldman comes down somewhere in the middle, insisting that constitutional interpretation should be driven at least in part by pragmatic concerns about the foreign affairs implications of constitutional decisions in a globalized world.  He argues in particular that the Court should seek to advance the “rule of law,” in large part because it is in the interest of the powerful (i.e., us) to insist on law, as it is a more efficient way of getting our way.

I share Feldman’s view that the Justices cannot blinder themselves to the fact that their decisions have impacts beyond our borders.  And courts of last resort around the world have increasingly looked to each others’ decisions for guidance on confronting common problems, and that is a positive development.  But Feldman’s pragmatic and realist take on the “rule of law” fails to account adequately for one of the strongest normative arguments in favor of insisting on reading the Constitution outward and respecting international law; namely, both function to protect rights that would not receive adequate protection from the domestic democratic mechanisms that conservatives so idealize.  The Bill of Rights and international human rights treaties are built on the recognition that democracies have their blind spots, especially when it comes to the treatment of minorities and outsiders.  Thus, both the Bill of Rights and human rights treaties require that certain guarantees be respected even where, or especially where, the democratic majority finds it inconvenient, unpopular, or too costly to do so.

If that is a core function of both the Constitution and at least some international law, then the conservative critique that international law suffers from a “democratic deficit” because its every development was not approved by the American people or their representatives through a vote, is not a critique at all.  Thus, the rule of law is not just about making it easier for the powerful to get their way, but also about the protection of the weak from the powerful, who ought not get their way when it comes to certain basic normative commitments.

I develop these ideas in a recent essay, “Rights Over Borders: Transnational Constitutionalism and Guantanamo Bay,” Cato Supreme Court Review (2008) on the Supreme Court’s historic decision this past summer in Boumediene v. Bush, which held that foreign nationals held as “enemy combatants” at Guantanamo Bay have a constitutional right to habeas corpus review of the legality of their detentions (and, by implication, also have the right to insist that their detentions accord with other constitutional rights as well).  I argue that while the decision is clearly important for what it says about the place of law in the war on terror, its greater importance may lie in what it reflects about the Supreme Court’s altered conceptions of sovereignty, territoriality, and rights in the globalized world.   

Boumediene was groundbreaking in at least three respects.  For the first time in its history, the Supreme Court declared unconstitutional a law enacted by Congress and signed by the president on an issue of military policy in a time of armed conflict. Also for the first time, the Court extended constitutional protections to noncitizens outside U.S. territory during wartime.   And for only the third time in its history, the Court declared unconstitutional a law restricting federal court jurisdiction.

But the real significance of the decision may lie in what it portends for modern-day conceptions of sovereignty, territoriality, and rights. The Bush administration relied on old-fashioned conceptions of sovereignty and rights in arguing that habeas corpus jurisdiction did not extend to Guantanamo, and that federal courts should have no constitutionally recognized role there. The Court’s decision, by contrast, reflects new understandings of these traditional conceptions, understandings that pierce the veil of sovereignty, reject formalist fictions of territoriality where the state exercises authority beyond its borders, and insist on the need for judicial review to safeguard the human rights of citizens and noncitizens alike.

And while Boumediene may appear unprecedented from a domestic standpoint, it fits comfortably within the transnational trend noted above, in which courts of last resort have played an increasingly aggressive role in reviewing (and invalidating) security measures that trench on individual rights.  That development, I maintain, has a profound normative justification – in the need to defend the weak – that is much more attractive, and ultimately, legitimate, than Feldman’s pragmatic appeal to the “rule of law” as a means for the powerful to get their way.