Sunday, August 17, 2008

Dworkin on Boumediene v. Bush

Ronald Dworkin's essay on Boumediene v. Bush in the New York Review of Books is so confusing and logically inconsistent that I don't know what to make of it. At one point, Dworkin declares that not only is it immoral for the U.S. to deny any foreigners rights against unjust imprisonment, but it's also unconstitutional:

America owes its duty to respect fundamental human rights, including the right not to be imprisoned unjustly, to all people who come under its authority; and there can be no moral justification for discriminating against foreigners either in the definition or the enforcement of those rights. The Constitution's text suggests that this moral principle is a constitutional principle as well, because it declares that all "persons" are owed due process.
By this logic, the statutory scheme that Dworkin later advocates is both unconstitutional and morally unjustifiable, because:
[The proposed statutory scheme] must permit the government, at least for some specified period, to prevent truly dangerous terrorists who cannot be prosecuted from carrying out more attacks.
Dworkin also mocks the idea that Congress or the Executive should have a hand in defining the scope of foreigners' habeas rights:
As Kennedy said, "The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain." Scalia's historical reading demeans the Constitution and insults those who made it. It is absurd to translate their clear declaration of principle into a rule pointlessly limiting prisoners' rights to those enjoyed at some fixed and essentially arbitrary date.
But again, by this logic, Dworkin's proposed statutory scheme is unconstitutional, because it allows Congress—whose power is necessarily being restrained by the constitutional principle Dworkin extolls—to define the length of the "specified period" during which foreigners are stripped of their right against unjust imprisonment:
It would therefore be necessary for any statute enacting this scheme to provide some time limit for this detention that Congress could, of course, later extend if it deemed necessary.
I agree that Boumediene was a landmark opinion that was (thankfully) decided correctly. It's too bad this essay does such a poor job articulating that view. Dworkin was actually a professor of mine in law school. My then-girlfriend (and now-wife) somehow tricked me into taking Dworkin's legal philosophy class with her. Much to my surprise, though, I very much enjoyed the class. Don't get me wrong, I completely disagree with his various philosophies (which are hard to actually pin down). His flip dismissal of the entire field of economics was particularly puzzling to me—if I remember correctly, he argued that economics was fundamentally flawed because in economics, someone's claim to his share of resources is subject to the preferences of others (if other people are willing to pay more for the resource, then you get less of it). In other words, he rejected economic analysis because it recognizes the irrefutable fact that resources are often scarce! I guess he preferred assuming that resources are endless, because without that assumption, a person's claim to his share of resources will always be subject to the preferences of others. Despite my objections to his philosophies, his class was supremely entertaining. Dworkin's public persona is as a prominent and hard-core lefty (probably due to his heavy emphasis on equality), so his class attracted the most left-wing students at the law school. I'm not talking about liberal or even populist economist-types; I'm talking about seriously left-wing egalitarians, in the Naomi Klein mold. Unfortunately for these students, Dworkin wasn't nearly as left-wing as they originally thought, and he seemed to really enjoy knocking down the arguments of uncompromising egalitarians. As a result of their obvious disappointment, the in-class debates were more emotionally charged than any other debates I saw in law school. I don't think he won many converts to his "interpretivist" philosophy of law. That may not sound very entertaining, but believe me, by law school standards, it was high comedy.


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