I am no fan of judicial activism. It indicates the complete breakdown of societal law and order, in that it entirely eliminates both the rule of law and even the pretense of democracy in favor of the same rule by decree that characterized ancient monarchies and empires. When the law as written is ignored in favor of whatever a judge, or very small group of judges, declares the law to be, one cannot pretend to be living in a country that is any more constitutional or genuinely democratic than Caesar's Rome or Mugabe's Zimbabwe.
That being said, it's important to keep in mind that political actions such as the Supreme Court's recent 5-4 decision that detainees accused of terrorism being held at Guantanamo Bay have a constitutional right to challenge their detention in civilian courts do not take place in a vacuum. While there is no question that this "constitutional right" is a newly manufactured one discovered in the same sort of fictional penumbra emanating from fevered judicial imaginations that hitherto produced the "right" to an abortion and the "right" for two men to marry, the decision is clearly a reaction to contrary fictions that have been produced over the last seven years by Congress and the Bush administration.
Since both the legislative and the executive branches of American government have repeatedly demonstrated that they have absolutely no regard for the U.S. Constitution and the strict limits it places on federal power, there is no reason to expect that the third branch of government will refrain from following their example. On Nov. 13, 2001, George Bush issued a presidential military order giving his agents the power to arrest anyone suspected of a connection to terrorists or terrorism as an unlawful combatant and hold him indefinitely without being charged, without a court hearing and without a lawyer. Three months after this naked grab for arbitrary and dictatorial power was slapped down by the Supreme Court's 2006 decision in Hamdan vs. Rumsfeld, Bush conspired with the Congress to pass the Military Commissions Act, which essentially granted the executive branch the same power it had claimed before, although only over aliens, which presumably excludes U.S. citizens.
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Of course, given the administration's demonstrated willingness to ignore the clear wording of the U.S. Constitution with regards to habeas corpus in the first place, it is the height of foolishness to assume that this president, or his successor, will be incapable of redefining the term "alien" to fit anyone they wish to arrest and hold without the benefit of a trial.
This is the recent history that is necessary in order to put the Supreme Court decision in its proper context. Given the proven willingness of the president, his administration and the Congress to ignore the Constitution, to redefine clearly understood terms and to offer up disingenuous rationales in defense of their actions, the Supreme Court has clearly decided to get in the mud with the other two branches and attempt to force an end to their seven-year campaign to be able to seize and hold anyone the executive branch wants for any reason its agents like for as long as they like, without any legal limits or external oversight.
Every American citizen should be pleased by this, since it was their constitutional right to habeas corpus that was the original target of the administration's attempted theft. It's much better to risk non-citizens receiving fair trials in a timely manner than risk American citizens being kidnapped from their homes and disappeared, as if the United States of America was a South American banana republic circa 1972. Indeed, the fact that John McCain recently described this decision as "one of the worst decisions in the history of this country" is reason enough for the most staunch Republican to seriously consider voting for the lightweight socialist mama's boy that is Barack Obama. The Magic Negro would make for a horrendously bad president, provide the U.S. economy with a lethal injection of counterproductive economic policies and get American forces disastrously involved in African tribal politics, but at least he has shown no signs of wishing to create an American Gestapo.
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Don't get me wrong; for all that this practical decision by the Supreme Court is protective of American liberties, the quiet war between a judicially activist executive branch and a judicially activist judicial branch is strongly indicative of total disaster in the long term. It is a clear sign that the limiting force of the U.S. Constitution on the federal government has been shattered, that the political system is no longer even superficially democratic and that the idea of America as a unique nation dedicated to freedom and human liberty is no longer applicable to the current United States. But the death of the American dream should not be confused with the end of the world; after all, the vast majority of historical humanity lived without ever having had any voice in its own governance.
So, enjoy the tattered remnants of your historical freedoms while they last. And Republicans who despair as they consider their electoral options this fall should remember that they had the choice to nominate a man who pledged to work towards restoring those very freedoms, but they dismissed him as a lunatic and a naïve fool. From Cassandra to Jesus Christ, it is amazing how often the doomed choose to ignore those who warn them of their coming fate.