Judicial Review and the Military Commissions Act: On Striking the Right Balance

2007 ◽  
Vol 101 (2) ◽  
pp. 344-362 ◽  
Author(s):  
David A. Martin
Keyword(s):  
United States ◽  
Human Rights ◽  
Judicial Review ◽  
United States Supreme Court ◽  
The United States ◽  
United States Supreme ◽  
Geneva Conventions ◽  
Military Commissions ◽  
The Right ◽  
The Military

Hamdan v. Rumsfeld seemed a promising example of a special form of judicial role. Abstaining from deploying its ultimate power to judge the constitutionality of an action of a political branch, the United States Supreme Court used statutory construction to give a strong nudge in a direction favorable to human rights. It negated a questionable and controversial policy—President George W. Bush’s unilateral establishment of military commissions to try terrorist suspects by means of reduced procedures—and essentially remanded the matter to Congress. The initial fruits of that remand, the Military Commissions Act (MCA), came as a disappointment. The Act cuts back on judicial review of the treatment of prisoners at Guantánamo and other U.S. detention sites overseas; it limits certain key protections available to the accused in a military commission proceeding, as compared to courts-martial; and it takes a crabbed view of the requirements of common Article 3 of the Geneva Conventions—at least as applied to the actions of U.S. agents. Nonetheless, further judicial and congressional reconsideration is certainly possible—and highly desirable.

Two Hundred Years of Marbury v. Madison: The Struggle for Judicial Review of Constitutional Questions in the United States and Europe

2004 ◽  
Vol 5 (6) ◽  
pp. 685-701 ◽  
Author(s):  
Wolfgang Hoffmann-Riem
Keyword(s):  
United States ◽  
Judicial Review ◽  
United States Supreme Court ◽  
Supreme Court Decision ◽  
The United States ◽  
Thomas Jefferson ◽  
Court Decision ◽  
United States Supreme ◽  
The Right ◽  
Justice Of The Peace

This year we celebrate a United States Supreme Court decision that marks the beginning of modern jurisdiction over constitutional questions: Marbury v. Madison. This is all the more remarkable since, when it was decided two hundred years ago in 1803, it was controversial and many still maintain it was wrongly decided. Chief Justice Marshall ruled on a dispute which he had earlier had a hand in causing, since the alleged legal error – the untimely delivery of a commission to Justice of the Peace Marbury – fell within his area of responsibility as Secretary of State. He dismissed the petition because the incorrect legal procedure had been chosen. However, he did not examine this question at the outset but – contrary to the accepted procedural rules of his time – at the end. This left room for a wide-ranging discussion of the right of judicial review, which was not required by law, and was, therefore, obiter dicta. Thomas Jefferson later referred to this discussion as the Chief Justice's “obiter dissertation.” Of course, Adams himself contended that the case turned on the judicial right of review, since this was a component of his argument that the petition should be dismissed.

Hamdan v. Rumsfeld

2006 ◽  
Vol 100 (4) ◽  
pp. 888-895
Author(s):  
Daniel Bodansky ◽  
Peter J. Spiro
Keyword(s):  
United States ◽  
Supreme Court ◽  
United States Supreme Court ◽  
United States Supreme ◽  
Military Justice ◽  
Geneva Conventions ◽  
Uniform Code ◽  
Military Commissions ◽  
The Military ◽  
The U.S

Hamdan v. Rumsfeld. 126 S.Ct. 2749.United States Supreme Court, June 29, 2006.In Hamdan v. Rumsfeld, the U.S. Supreme Court found that the military commissions established by President George W. Bush were unauthorized by law and inconsistent with both the Uniform Code of Military Justice (UCMJ) and the 1949 Geneva Conventions. Rejecting jurisdictional challenges to its resolving the legality of the tribunals, the Court found the military commission proceedings against Hamdan to violate the “uniformity” requirement of the UCMJ, under which military commissions must be governed by the same standards as courtsmartial except where impracticable. The Court also found the tribunals to violate the Geneva Conventions as incorporated by Article 21 of the UCMJ, because the commissions did not qualify as “regularly constituted courts” as required under Common Article 3.

Constitutional Review by the Judiciary in the Netherlands: A Bridge Too Far?

2010 ◽  
Vol 11 (2) ◽  
pp. 275-290 ◽  
Author(s):  
Gerhard van der Schyff
Keyword(s):  
United States ◽  
The Netherlands ◽  
Supreme Court ◽  
Judicial Review ◽  
United States Supreme Court ◽  
The United States ◽  
United States Supreme ◽  
Constitutional Review ◽  
Judicial Control ◽  
Chief Justice

One could be forgiven for thinking that constitutional review by the judiciary is invariably part of modern constitutionalism. Gone are the days that constitutions contained provisions that prevented the courts from testing the constitutionality of legislation, such as section 59 of South Africa's now repealed Constitution of 1961 that forbade the courts from inquiring into or pronouncing on the validity of legislation. It has come to be accepted in many quarters that a constitution presupposes judicial review in some form or another in gauging the integrity of legislation, instead of only relying on legislative wisdom as before. An attitude that echoes the views expressed inMarbury v. Madisonby Chief Justice Marshall of the United States Supreme Court, that by its very nature a written constitution implies judicial control. However, the Constitution of the Netherlands proves to be an exception in this regard, as section 120 states emphatically that:The constitutionality of Acts of Parliament and treaties shall not be reviewed by the courts.

Preserving Liberty While Combatting Terrorism: An American Experience

2003 ◽  
Vol 24 (1) ◽  
pp. 113-131
Author(s):  
Steven R. Shapiro
Keyword(s):  
United States ◽  
Supreme Court ◽  
United States Supreme Court ◽  
The United States ◽  
Pearl Harbor ◽  
United States Supreme ◽  
Bill Of Rights ◽  
Martial Law ◽  
American Experience ◽  
The Right

In 1946, the United States Supreme Court ruled that the declaration of martial law in Hawaii following Pearl Harbor did not suspend the Bill of Rights and did not deprive civilians accused of crime of the right to trial by jury in a civilian rather than a military court. In a concurring opinion, Justice Frank Murphy wrote.

A Professional Pioneer: Myra Bradwell's Fight to Practice Law

1987 ◽  
Vol 5 (1) ◽  
pp. 105-133 ◽  
Author(s):  
Nancy T. Gilliam
Keyword(s):  
United States ◽  
Supreme Court ◽  
United States Supreme Court ◽  
Sex Discrimination ◽  
The United States ◽  
United States Supreme ◽  
First Case ◽  
The Right

In April of 1873, the United States Supreme Court rejected Myra Bradwell's claim that the right to practice law should be acknowledged as one of the privileges and immunities of United States citizenship. Thus, the first case of sex discrimination to be heard by the Court was resolved against the woman, as would be every subsequent claim but one for the next ninety-eight years.

Athletes as Objects of Property: A Kantian Rethinking of Flood v. Kuhn

2013 ◽  
Vol 26 (2) ◽  
pp. 471-490
Author(s):  
Malcolm Aboud
Keyword(s):  
United States ◽  
United States Supreme Court ◽  
The United States ◽  
United States Supreme ◽  
Free Agency ◽  
Property A ◽  
External Objects ◽  
The World ◽  
The Right ◽  
Reserve System

In the 1972 case Flood v. Kuhn, St. Louis Cardinals outfielder Kurt Flood petitioned to the United States Supreme Court arguing that professional baseball’s century-old reserve system was illegal. In the case, which was ultimately unsuccessful but led to the establishment of modern free agency, Flood argued that by granting teams the perpetual right to renew players’ contracts and the right to unilaterally trade players to other teams, the reserve system treated him as “a piece of property to be bought and sold” and reduced him to a “well-paid slave”. In this paper, I justify Flood’s claim by appeal to a Kantian division of rights. I argue for a Kantian conception of rights under which property rights are properly defined as rights in rem in external objects; on the basis that the right a team holds in a ballplayer under the reserve system is alienable and holds against all the world, I argue that it is a right in rem and accordingly constitutes a property right under Kant’s view. I then argue that the reserve system treats the player as a slave by constraining his purposiveness such as to violate a Kantian conception of the innate right of humanity. On this basis I argue that Flood was right to conclude that the reserve system treats the player as an object of property akin to a slave.

The Supreme Court and Its Critics: Is the Court Moving Left?

1959 ◽  
Vol 21 (3) ◽  
pp. 495-510 ◽  
Author(s):  
Joseph O. Losos
Keyword(s):  
United States ◽  
Supreme Court ◽  
Federal Government ◽  
United States Supreme Court ◽  
The United States ◽  
American People ◽  
United States Supreme ◽  
The Supreme Court ◽  
The Will ◽  
The Right

InTheLight of recent decisions of the United States Supreme Court, it might appear that the judiciary is currently the most radical branch of the Federal Government. In certain respects circumstances today, present a scene similar to that of 1937. The Court, now as then, is denounced as an unelected, undemocratic group which, under the pretense of interpreting the laws and Constitution, makes a law contrary to the will of the majority of the American people. Only today it is the right that denounces the Court and the left that comes to its defense.

The Military Commissions Act, the Geneva Conventions, and the Courts: A Critical Guide

2007 ◽  
Vol 101 (1) ◽  
pp. 73-98 ◽  
Author(s):  
Carlos Manuel Vázquez
Keyword(s):  
National Security ◽  
War Crimes ◽  
The United States ◽  
Security Policies ◽  
United States Supreme ◽  
Criminal Offense ◽  
Geneva Conventions ◽  
Degrading Treatment ◽  
Military Commissions ◽  
The Military

The Military Commissions Act of 2006 (MCA) was precipitated by several of the United States Supreme Court’s holdings in Hamdan v. Rumsfeld. First, the administration perceived the need to respond to the Court’s invalidation of the military commissions established pursuant to the president’s Military Order of November 13,2001, as contrary to Congress’s stipulation that such tribunals conform to the laws of war. In addition, the Court’s holding that common Article 3 of the Geneva Conventions applies to the conflict with Al Qaeda carried important implications for other national security policies. Most important, the Court’s interpretation of the scope of common Article 3 imperiled the president’s program for the interrogation of Qaeda detainees because that article prohibits cruel and degrading treatment and violating it was a criminal offense under the War Crimes Act.

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