- The Washington Times - Sunday, November 13, 2005

Since I am not a member of the Senate Judiciary committee, I have taken the uninvited liberty to suggest a series of questions during the confirmation process of Judge Samuel Alito that bear on Judiciary Committee Chairman Arlen Specter’s assertion that this nominee for the Supreme Court respects long-range Supreme Court precedents.

During the Civil War, President Abraham Lincoln suspended habeas corpus, and after the fact, got Congress to agree. Among the military arrests under this suspension was that of Lamdin Milligan. The case came to the Supreme Court, and in a landmark decision in 1866, Justice David Davis declared the imprisonment was unconstitutional because the civilian courts were still open. He ruled: “The Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. The Government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence.”

Does Judge Alito agree, even in this war against terrorism, that the Constitution must be strictly constructed? In Hamdi v. Rumsfeld (2004), the Supreme Court was concerned with the case of an American citizen, Yaser Hamdi, held indefinitely as an “enemy combatant” without charges, and without due process of law. In an opinion for a majority of the Court, Justice Sandra Day O’Connor said, “We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of American citizens.” But, in dissent, Justice Antonin Scalia, convinced that the majority of the Court had not gone far enough, emphasized that this detainee should be prosecuted or released. Justice Scalia added, “Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis… Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it.” Moreover, said Justice Scalia, “The very core of liberty secured by our Anglo-American system of separated powers has been freedom from indefinite imprisonment at the will of the Executive… Hamdi’s imprisonment without criminal trial is no less unlawful than Milligan’s trial by military tribunal.” Does Judge Alito agree with Justice Scalia that the majority of the Court did not meet the requirements of the Constitution in the case of Yaser Hamdi? In a 1943 landmark case, West Virginia Board of Education v. Barnette, the children of Jehovah’s Witnesses had been expelled from the state’s public schools because they refused to salute the flag since their religion forbade them to bow to any “images.” And if their parents did not compel them to return to school, the parents could be prosecuted for complicity in their children’s delinquency.

Writing for the Supreme Court, Justice Robert Jackson was responsible for a decision that has been regarded by some as a definition of Americanism: “If there is a fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox politics, nationalism, religion, or any other matters, or force citizens to confess by word or act their faith therein.” Does Judge Alito have any reservations about Justice Jackson’s constitutional reasons for sending the Jehovah’s Witnesses children back to school? He decided not on religious, but on First Amendment, grounds.

The 1943 Supreme Court overruled a 1940 Supreme Court decision also on Jehovah’s Witnesses children refusing to salute the flag. That earlier court decision held that the children could constitutionally be expelled from the public schools of Pennsylvania. The majority decision was written by Justice Felix Frankfurter (who dissented in the later West Virginia Board of Education ruling).

Frankfurter wrote in 1940 that the Pennsylvania flag-salute law recognized that “the ultimate foundation of a free society is the binding tie of cohesive sentiment… We live by symbols. The flag is the symbol of national unity, transcending all internal differences, however large, within the framework of the Constitution.” Does Judge Alito believe that Justice Frankfurter’s interpretation of flag-salute law is on firmer constitutional ground than Justice Robert Jackson’s? Finally, although the unanimous 1954 Supreme Court decision in Brown v. Board of Education declared segregated public schools unconstitutional, there are now more racially segregated public schools in the nation than in 1954.

Subsequent Supreme Court decisions state that since segregation is not a result of laws, but rather of residential patterns, there is no constitutional cause of action.

Does Judge Alito agree that, in effect, Brown v. Board has largely failed, and that the Supreme Court is powerless to do anything more to desegregate the classrooms of America?

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