(Pix (c) Larry Catá Backer 2014)
Since 2010, I have been posting on the development of a new course I have been developing for our first year law school students, "Elements of Law." The course originally had a quite modest objective--to introduce law students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions. I chose to broaden its objectives within these specific parameters and development a framing and concepts course that would provide a deep foundation to law students on the legal system they were undertaking to study.
--Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).
--Developing a New Course--"Elements of Law"
--"Elements of Law" Course 2.0: A Framework Course for the U.S. Law Curriculum,
Grounded in the principles of the sociology of law, the course has morphed into an effort to introduce students to law as a self-referencing system with its own particular structures, premises, constraints and language, with its own logic and taboos and its own means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice, Chichester : John Wiley and Sons Ltd, 1999) is then a critical element in the way in which the legal system (in this case of the United States) interacts with the world, both as a legal and as a socio-economic-political actor. The course has also expanded from its original narrow and technical focus, to a broader focus on principles and the use of language and logic to build and operate a system of law. That broadening has made it possible to offer the course not just to first year law students, but also to graduate students in the social sciences and in international affairs, as a grounding in the legal systems that are important in their respective fields.
This and the posts that follow produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.
This post includes a draft of the fourth Chapter of Part II (Hierarchies of Law and Governance; Sources and Uses) --Chapter 11 (Role of Law/Rule of Law).
This and the posts that follow produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.
This post includes a draft of the fourth Chapter of Part II (Hierarchies of Law and Governance; Sources and Uses) --Chapter 11 (Role of Law/Rule of Law).
Chapter 11The Relationship of Law and the Government of the State―Role of Law/Rule of LawI. IntroductionThe last chapter of Section II seeks to put all the materials we have considered before around the notions, now increasingly important in framing discussion about the legitimacy of law and law systems, which are understood as rule of law. The notions of rule of law as a set of process values (thin rule of law) and normative values (thick rule of law) are explored. A comparative approach suggests the malleability of the concept of rule of law but also its importance as a sign of law system legitimacy. The idea of due process and rule of law as a human right is also explored. More importantly, the student will be introduced to the fundamental difference between rule of law as a political concept—one that embraces a particular ideology of political organization and social structuring—and rule of law as a legal concept within the United States legal system. In its later aspect, rule of law as been subsumed within the core constitutional principles of due process and equal protection understood as tools to avoid governmental tyranny or the assertion of arbitrary power. Those principles, and the rule of law construct it embodies, find expression in the United States in the jurisprudence of fundamental rights. The focus on rule of law in the United States will introduce students to due process as a constitutional and rule of law concept. Consideration of Hamdi v. Rumsfeld, 124 S Ct 2633 (2004) will serve to provide context to these notions. The problem will focus on the methodologies for determining and protecting fundamental rights within a rule of law legal context.II. Chapter Readings· United Nations Rule of Law, “What is the Rule of Law”[1]· Norhiro Urabe, “Rule of Law and Due Process: A Comparative View of the United States and Japan,”[2] Law and Contemporary Problems 53(1):61-72 (1990)· David Clark, “The Many Meanings of the Rule of Law”· Hamdi v. Rumsfeld,[3] 124 S Ct 2633 (2004) READ PARTS I, IIIOptional· Mary Crock and Daniel Ghezlbash, “Due Process and Rule of Law as Human Rights: The High Court and the ‘Offshore’ Processing of Asylum Seekers,”[4] READ 1-9__________United Nations Rule of LawAboutWhat is the Rule of Law[5]Aristotle said more than two thousand years ago, "The rule of law is better than that of any individual."The notion of the “rule of law” stems from many traditions and continents and is intertwined with the evolution of the history of law itself. The Code of Hammourabi, promulgated by the King of Babylon around 1760 BC, is one of the first examples of the codification of law, presented to the public and applying to the acts of the ruler. In the Arab world, a rich tradition of Islamic law embraced the notion of the supremacy of law. Core principles of holding government authority to account and placing the wishes of the populace before the rulers, can be found amid the main moral and philosophical traditions across the Asian continent, including in Confucianism. In the Anglo-American context, the Magna Carta of 1215 was a seminal document, emphasizing the importance of the independence of the judiciary and the role of judicial process as fundamental characteristics of the rule of law. In continental Europe notions of rule of law focused on the nature of the State, particularly on the role of constitutionalism.Recent attempts to formalize its meaning have drawn on this rich history of diverse understandings. The modern conception of the rule of law has developed as a concept distinct from the “rule of man”, involving a system of governance based on non-arbitrary rules as opposed to one based on the power and whim of an absolute ruler. The concept of rule of law is deeply linked to the principle of justice, involving an ideal of accountability and fairness in the protection and vindication of rights and the prevention and punishment of wrongs. Long before the United Nations, States were working towards a rule of justice in international life with a view to establishing an international community based on law.Today, the concept of the rule of law is embedded in the Charter of the United Nations.[[6]] In its Preamble, one of the aims of the UN is “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained”. A primary purpose of the Organization is “to maintain international peace and security… and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.” The Universal Declaration of Human Rights of 1948,[[7]] the historic international recognition that all human beings have fundamental rights and freedoms, recognizes that “… it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law…”For the UN, the Secretary-General defines the rule of law as “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency." (Report of the Secretary-General: The rule of law and transitional justice in conflict and post-conflict societies” (2004))[[8]]The principle of the rule of law applies at the national and international levels. At the national level, the UN supports a rule of law framework that includes a Constitution or its equivalent, as the highest law of the land; a clear and consistent legal framework, and implementation thereof; strong institutions of justice, governance, security and human rights that are well structured, financed, trained and equipped; transitional justice processes and mechanisms; and a public and civil society that contributes to strengthening the rule of law and holding public officials and institutions accountable. These are the norms, policies, institutions and processes that form the core of a society in which individuals feel safe and secure, where legal protection is provided for rights and entitlements, and disputes are settled peacefully and effective redress is available for harm suffered, and where all who violate the law, including the State itself, are held to account.At the international level, the principle of the rule of law embedded in the Charter of the United Nations encompasses elements relevant to the conduct of State to State relations. The Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations[[9]] recognizes the inherent link between the UN and the international rule of law. Its preamble emphasizes “the paramount importance of the Charter of the United Nations in the promotion of the rule of law among nations.” Drawn from existing commitments in international law, the core values and principles of the UN include respect for the Charter and international law; respect for the sovereign equality of States and the principle of non-use or threat of use of force; the fulfillment in good faith of international obligations; the need to resolve disputes by peaceful means; respect for and protection of human rights and fundamental freedoms; recognition that protection from genocide, crimes against humanity, ethnic cleansing and war crimes is not only a responsibility owed by a State to its population, but a responsibility of the international community, the equal rights and self-determination of peoples; and the recognition that peace and security, development, human rights, the rule of law and democracy are interlinked and mutually reinforcing. Appropriate rules of international law apply to the Organization as they do to States.Notes and Questions.1. Since 2006, the United Nations system has sought to take a more pro.-active role in rule of law issues. To that end, a Rule of Law Coordination and Resource Group was created in 2006.[10] The Secretary General’s Report provided:I have decided to establish a Rule of Law Coordination and Resource Group within the Secretariat. This Group, chaired by the Deputy Secretary-General, will be the focal point for coordinating system-wide rule of law activities so as to ensure quality control and greater policy coherence and coordination. The Group, which will be supported by a small secretariat unit, will act as a repository of rule of law materials, expert rosters, web resources and best practices, in close cooperation with the relevant lead entities. The Group will also give consideration to recommending the establishment of a rule of law trust fund.The Rule of Law Coordination and Resource Group will also lead a consultative process with relevant partners , first and foremost Member States. This will identify priority gaps in capacity of the United Nations that need to be filled in the rule of law area and recommend where, and by when, these capacities should be established.Id., 2.2. While the initial focus of the United Nations was on transitional justice in states emerging from periods of lawlessness and misrule, the focus on rule of law clearly has wider application. To some extent, the work of conceiving the meaning and implementation of rule of law concepts at the international level is likely to be influential not just in the way that international law and norms is shaped and understood, but may also trickle down and have some influence in the way in which courts might be persuaded to understand the concept and apply it to their own constitutional systems. Is that the case in the United States?3. In its 2008 Guidance Note of the Secretary General: UN Approach to Rule of Law Assistance,[11] the United Nations also suggested the constituent parts of a rule of law state in the following terms:B. FRAMEWORK FOR STRENGTHENING THE RULE OF LAW1.A Constitution or equivalent , which, as the highest law of the land, inter alia:• Incorporates internationally recognized human rights and fundamental freedoms as set out in international treaties, provides for their applicability in domestic law, and establishes effective and justiciable remedies at law for violations;• Provides for non-discrimination on the basis of race, color, gender, language, religion, political or other opinion, national or social origin, property, birth or other status, and which protects national minorities;• Provides for the equality of men and women;• Defines and limits the powers of government and its various branches, vis-à-vis each other, and the people;• Limits emergency powers and derogations of human rights and freedoms under states of emergency to those permissible under international standards;• Empowers an independent and impartial judiciary.2. A legal framework, and the implementation thereof, consistent with international norms and standards, which protects human rights and provides for effective redress, including:• Fair immigration, nationality and asylum laws;• Penal laws, including for transnational crimes, and criminal procedure laws that ensure the effective and fair administration of justice for perpetrators, including juveniles in conflict with the law as well as victims and witnesses, consistent with, among others, the Basic Principles of Justice for Victims of Crime and Abuse of Power;• Prison laws and regulations that are consistent with, among others, the Standard Minimum Rules for the Treatment of Prisoners;• Laws for the protection of minorities, children, displaced and returning populations, and other marginalized or vulnerable groups that take into account their special status and international standards for their protection, and that outlaw and address the effects of discrimination;• Laws that establish legal protection for the rights of women on an equal basis with men, and that ensure through competent national tribunals and other public institutions the ffective protection of women against any act of discrimination;• Laws protecting free association and assembly, and guarantees that press, libel, broadcasting and other laws respect free expression, opinion and information;• Security legislation that protects non-derogable human rights, and ensures civilian control and oversight;• Laws on the judiciary, legal practice and prosecution that reflect, among others, the standards embodied in the Basic Principles on the Independence of the Judiciary, Basic Principles on the Role of Lawyers, and Guidelines on the Role of Prosecutors;• Laws, guidelines and directives that govern the conduct of police and other security forces consistent with, among others, the Code of Conduct for Law Enforcement Officials and Basic Principles on the Use of Force and Firearms by Law Enforcement Officials;• Fair procedures for the settlement of civil entitlements and disputes under the law and fair administration of laws, regulations, procedures and institutions.3. An electoral system, which, inter alia:• Assures, through periodic and genuine elections, that the will of the people shall be the basis of the authority of government;• Assures the right of everyone to take part in the government of his or her country, either directly or through freely chosen representatives, including through the application of temporary special measures;• Assures equal access to public service, including elective public service;• Guarantees universal and equal suffrage, and secrecy of the ballot;• Provides for non-discrimination in the area of political rights, and secures an electoral atmosphere that is free of intimidation and respectful of certain prerequisite rights, such as freedom of opinion, expression, information, assembly and association;• Provides for objective, unbiased and independent electoral administration, and independent review of alleged irregularities;• Provides for the transfer of power to victorious parties and candidates under the law.4. Institutions of justice, governance, security and human rights that are well-structured and financed, trained and equipped to make, promulgate, enforce and adjudicate the law in a manner that ensures the equal enjoyment of all human rights for all, including:• A legislative institution or mechanism for the formulation and public promulgation oflaws in a procedurally transparent manner;• Effective oversight institutions or mechanisms (e.g., anti-corruption bodies, parliamentary committees, national human right s institutions, independent commissions on human rights and ombudsman offices consistent with the Paris Principles);• A judiciary, which is independent, impartial and adequately empowered to adjudicate the law with integrity and ensure its equal application to all within its jurisdiction;• State institutional capacities to make policy for and manage the effective administration of justice, the provision of security, crime prevention, and to investigate and prosecute violations of the law;• Police and other law enforcement agencies that protect individuals and communities, enforce the law without discrimination and take appropriate action against alleged violations of the law, including appropriate oversight mechanisms;• Corrections services that provide for a safe, secure and humane prison and rehabilitationsystem, including alternatives to deprivation of liberty and diversion measures;• An accessible capacity to provide legal and paralegal assistance to those unable to afford it, and adequate and effective defense for those alleged to have violated the law;• A social service capacity to assist victims and witnesses of crime and abuse of power, including children, to participate effectively in the administration of justice in a mannerthat ensures redress for harm suffered;• A system to effectively adjudicate rights and responsibilities within the family, on the basis of gender equality and in the best interest of the child, which ensures that the protection of children from abuse, exploitation, harm and neglect;• A professional training regime for lawyers, judges, prosecutors, law enforcement and prison officials that promotes a culture of service, discipline and ethics;• Military and civil defense forces that has allegiance to the Constitution, or equivalent, and other laws of the land, and to the democratic government, and follows international humanitarian law;• Effective and accessible mechanisms for resolution of entitlements and disputes between and among individuals, State organs, and groups in society, including courts, administrative tribunals, alternative or traditional dispute resolution mechanisms, and commissions or mechanisms for, among others, the fair settlement of property and housing disputes.5. Transitional justice processes and mechanisms that respond to country contexts while anchored in international norms and standards to address the legacy of large-scale past abuses in order to ensure accountability, serve justice and achieve reconciliation, which may include both judicial and non-judicial mechanisms such as ad hoc criminal tribunals, truth commissions, vetting processes and reparations programmes.6. A public and civil society that contributes to strengthening the rule of law and holds public officials and institutions accountable , including:• A system of governance that promotes a culture of legality, legal empowerment and ensures the public is aware of and educated in the full-range of its rights and responsibilities;• Communities that have equal access to justice and are empowered to participate in resolving disputes peacefully and responding to community safety needs and concerns;• Full access to judicial and other mechanisms for independent oversight of the exercise of executive authority and abuse of power;• A strong civil society, including, inter alia, adequately trained, equipped, financed and organized non-governmental organizations and professional associations, women’s groups, labor unions and community organizations;• A free, responsible and flourishing mass media.To what extent are these political rather than legal notions? Is it possible to entirely separate political form legal issues? Is law understood only as an instrument of political policy or does it exist within its own self referencing structures? Is the United Nations approach compatible with that of the United States in the way in which it has structured its own legal system? What are the differences?4. The American Bar Association also has a “Rule of Law Initiative.”[12] It is described as an international development program promoting the rule of law through in country partnerships. Its core principles are described this way:The core principles that guide ABA ROLI’s work are:Employing a highly consultative approach to the delivery of technical assistance that is responsive to the requests and priorities of the Initiative’s local partners.Employing a comparative approach in the provision of technical legal assistance, with the U.S. legal system providing just one of several models that host country reformers can draw upon.Providing technical assistance and advice that is neutral and apolitical.Building local capacity by strengthening institutions in both the governmental and non-governmental sectors and by furthering the professional development of ABA ROLI’s host country staff, many of whom become the next generation of leaders in their countries.Providing thought leadership in the field of rule of law promotion that draws on both ABA ROLI’s extensive overseas field experience and on the resources and convening power of the ABA and its more than 400,000 members in the United States and abroad.[13]The ABA’s ROLI has focused on access to justice and human rights, women’s rights, anti-corruption, criminal law reform, judicial reform and legal education. To what extent do these initiatives speak to issues of law or issues of politics policy and culture?5. Within the United States, the notion of rule of law tends to be understood within a cluster of other terms. More than half a century ago Paul Kauper noted;[14] “Here in the United States we have not, on the whole, given a lot of thinking to the Rule of Law idea which Dicey developed at such length on the basis of his observation of the English system. We speak of “government under law”, of a “government of laws and not of men,” or some may even use the term “due process of law” to refer in a broad way to ideas that may otherwise find expression in the rule of law terminology.” This has not changed much in the intervening years. What appears to be clear is that in the United States, the meaning of rule of law takes on a distinctive cast depending on whether one is speaking of the internal system of the United States or of systems beyond the U.S. Internally, the idea of rule of law clusters around notions of fairness and of structural protections against arbitrary governance and tyranny. Externally it references a host of political and ideological objectives for which law and law systems may be used as an instrument for their achievement._________Hamdi V. Rumsfeld, et al.(footnotes renumbered)Justice O’Connor announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice Kennedy, and Justice Breyer join.At this difficult time in our Nation’s history, we are called upon to consider the legality of the Government’s detention of a United States citizen on United States soil as an “enemy combatant” and to address the process that is constitutionally owed to one who seeks to challenge his classification as such. The United States Court of Appeals for the Fourth Circuit held that petitioner’s detention was legally authorized and that he was entitled to no further opportunity to challenge his enemy-combatant label. We now vacate and remand. We hold that although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.IOn September 11, 2001, the al Qaeda terrorist network used hijacked commercial airliners to attack prominent targets in the United States. Approximately 3,000 people were killed in those attacks. One week later, in response to these “acts of treacherous violence,” Congress passed a resolution authorizing the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks” or “harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Authorization for Use of Military Force (“the AUMF”), 115 Stat. 224. Soon thereafter, the President ordered United States Armed Forces to Afghanistan, with a mission to subdue al Qaeda and quell the Taliban regime that was known to support it.This case arises out of the detention of a man whom the Government alleges took up arms with the Taliban during this conflict. His name is Yaser Esam Hamdi. Born an American citizen in Louisiana in 1980, Hamdi moved with his family to Saudi Arabia as a child. By 2001, the parties agree, he resided in Afghanistan. At some point that year, he was seized by members of the Northern Alliance, a coalition of military groups opposed to the Taliban government, and eventually was turned over to the United States military. The Government asserts that it initially detained and interrogated Hamdi in Afghanistan before transferring him to the United States Naval Base in Guantanamo Bay in January 2002. In April 2002, upon learning that Hamdi is an American citizen, authorities transferred him to a naval brig in Norfolk, Virginia, where he remained until a recent transfer to a brig in Charleston, South Carolina. The Government contends that Hamdi is an “enemy combatant,” and that this status justifies holding him in the United States indefinitely–without formal charges or proceedings–unless and until it makes the determination that access to counsel or further process is warranted.* * *The Fourth Circuit denied rehearing en banc, 337 F.3d 335 (2003), and we granted certiorari. 540 U.S. __ (2004). We now vacate the judgment below and remand.IIThe threshold question before us is whether the Executive has the authority to detain citizens who qualify as “enemy combatants.” There is some debate as to the proper scope of this term, and the Government has never provided any court with the full criteria that it uses in classifying individuals as such. It has made clear, however, that, for purposes of this case, the “enemy combatant” that it is seeking to detain is an individual who, it alleges, was “ ‘part of or supporting forces hostile to the United States or coalition partners’ ” in Afghanistan and who “ ‘engaged in an armed conflict against the United States’ ” there. Brief for Respondents 3. We therefore answer only the narrow question before us: whether the detention of citizens falling within that definition is authorized.The Government maintains that no explicit congressional authorization is required, because the Executive possesses plenary authority to detain pursuant to Article II of the Constitution. We do not reach the question whether Article II provides such authority, however, because we agree with the Government’s alternative position, that Congress has in fact authorized Hamdi’s detention, through the AUMF.Our analysis on that point, set forth below, substantially overlaps with our analysis of Hamdi’s principal argument for the illegality of his detention. He posits that his detention is forbidden by 18 U.S.C. § 4001(a). Section 4001(a) states that “[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” Congress passed §4001(a) in 1971 as part of a bill to repeal the Emergency Detention Act of 1950, 50 U.S.C. § 811 et seq., which provided procedures for executive detention, during times of emergency, of individuals deemed likely to engage in espionage or sabotage. Congress was particularly concerned about the possibility that the Act could be used to reprise the Japanese internment camps of World War II. H. R. Rep. No. 92—116 (1971); id., at 4 (“The concentration camp implications of the legislation render it abhorrent”). The Government again presses two alternative positions. First, it argues that §4001(a), in light of its legislative history and its location in Title 18, applies only to “the control of civilian prisons and related detentions,” not to military detentions. Brief for Respondents 21. Second, it maintains that §4001(a) is satisfied, because Hamdi is being detained “pursuant to an Act of Congress”–the AUMF. Id., at 21—22. Again, because we conclude that the Government’s second assertion is correct, we do not address the first. In other words, for the reasons that follow, we conclude that the AUMF is explicit congressional authorization for the detention of individuals in the narrow category we describe (assuming, without deciding, that such authorization is required), and that the AUMF satisfied §4001(a)’s requirement that a detention be “pursuant to an Act of Congress” (assuming, without deciding, that §4001(a) applies to military detentions).The AUMF authorizes the President to use “all necessary and appropriate force” against “nations, organizations, or persons” associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the “necessary and appropriate force” Congress has authorized the President to use.The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by “universal agreement and practice,” are “important incident[s] of war.” Ex parte Quirin, 317 U.S., at 28. The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again. Naqvi, Doubtful Prisoner-of-War Status, 84 Int’l Rev. Red Cross 571, 572 (2002) (“[C]aptivity in war is ‘neither revenge, nor punishment, but solely protective custody, the only purpose of which is to prevent the prisoners of war from further participation in the war’ ” (quoting decision of Nuremberg Military Tribunal, reprinted in 41 Am. J. Int’l L. 172, 229 (1947)); W. Winthrop, Military Law and Precedents 788 (rev. 2d ed. 1920) (“The time has long passed when ‘no quarter’ was the rule on the battlefield … . It is now recognized that ‘Captivity is neither a punishment nor an act of vengeance,’ but ‘merely a temporary detention which is devoid of all penal character.’ … ‘A prisoner of war is no convict; his imprisonment is a simple war measure.’ ” (citations omitted); cf. In re Territo, 156 F.2d 142, 145 (CA9 1946) (“The object of capture is to prevent the captured individual from serving the enemy. He is disarmed and from then on must be removed as completely as practicable from the front, treated humanely, and in time exchanged, repatriated, or otherwise released” (footnotes omitted)).There is no bar to this Nation’s holding one of its own citizens as an enemy combatant. In Quirin, one of the detainees, Haupt, alleged that he was a naturalized United States citizen. 317 U.S., at 20. We held that “[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of … the law of war.” Id., at 37—38. While Haupt was tried for violations of the law of war, nothing in Quirin suggests that his citizenship would have precluded his mere detention for the duration of the relevant hostilities. See id., at 30—31. See also Lieber Code, ¶153, Instructions for the Government of Armies of the United States in the Field, Gen. Order No. 100 (1863), reprinted in 2 Lieber, Miscellaneous Writings, p. 273 (contemplating, in code binding the Union Army during the Civil War, that “captured rebels” would be treated “as prisoners of war”). Nor can we see any reason for drawing such a line here. A citizen, no less than an alien, can be “part of or supporting forces hostile to the United States or coalition partners” and “engaged in an armed conflict against the United States,” Brief for Respondents 3; such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict.In light of these principles, it is of no moment that the AUMF does not use specific language of detention. Because detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war, in permitting the use of “necessary and appropriate force,” Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.Hamdi objects, nevertheless, that Congress has not authorized the indefinite detention to which he is now subject. The Government responds that “the detention of enemy combatants during World War II was just as ‘indefinite’ while that war was being fought.” Id., at 16. We take Hamdi’s objection to be not to the lack of certainty regarding the date on which the conflict will end, but to the substantial prospect of perpetual detention. We recognize that the national security underpinnings of the “war on terror,” although crucially important, are broad and malleable. As the Government concedes, “given its unconventional nature, the current conflict is unlikely to end with a formal cease-fire agreement.” Ibid. The prospect Hamdi raises is therefore not far-fetched. If the Government does not consider this unconventional war won for two generations, and if it maintains during that time that Hamdi might, if released, rejoin forces fighting against the United States, then the position it has taken throughout the litigation of this case suggests that Hamdi’s detention could last for the rest of his life.It is a clearly established principle of the law of war that detention may last no longer than active hostilities. See Article 118 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U.S. T. 3316, 3406, T. I. A. S. No. 3364 (“Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities”). See also Article 20 of the Hague Convention (II) on Laws and Customs of War on Land, July 29, 1899, 32 Stat. 1817 (as soon as possible after “conclusion of peace”); Hague Convention (IV), supra, Oct. 18, 1907, 36 Stat. 2301(“conclusion of peace” (Art. 20)); Geneva Convention, supra, July 27, 1929, 47 Stat. 2055 (repatriation should be accomplished with the least possible delay after conclusion of peace (Art. 75)); Praust, Judicial Power to Determine the Status and Rights of Persons Detained without Trial, 44 Harv. Int’l L. J. 503, 510—511 (2003) (prisoners of war “can be detained during an armed conflict, but the detaining country must release and repatriate them ‘without delay after the cessation of active hostilities,’ unless they are being lawfully prosecuted or have been lawfully convicted of crimes and are serving sentences” (citing Arts. 118, 85, 99, 119, 129, Geneva Convention (III), 6 T. I .A. S., at 3384, 3392, 3406, 3418)).Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress’ grant of authority for the use of “necessary and appropriate force” to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan. See, e.g., Constable, U.S. Launches New Operation in Afghanistan, Washington Post, Mar. 14, 2004, p. A22 (reporting that 13,500 United States troops remain in Afghanistan, including several thousand new arrivals); J. Abizaid, Dept. of Defense, Gen. Abizaid Central Command Operations Update Briefing, Apr. 30, 2004, http://www.defenselink.mil/transcripts/2004/tr20040430-1402.htm l (as visited June 8, 2004, and available in the Clerk of Court’s case file) (media briefing describing ongoing operations in Afghanistan involving 20,000 United States troops). The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who “engaged in an armed conflict against the United States.” If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of “necessary and appropriate force,” and therefore are authorized by the AUMF.Ex parte Milligan, 4 Wall. 2, 125 (1866), does not undermine our holding about the Government’s authority to seize enemy combatants, as we define that term today. In that case, the Court made repeated reference to the fact that its inquiry into whether the military tribunal had jurisdiction to try and punish Milligan turned in large part on the fact that Milligan was not a prisoner of war, but a resident of Indiana arrested while at home there. Id., at 118, 131. That fact was central to its conclusion. Had Milligan been captured while he was assisting Confederate soldiers by carrying a rifle against Union troops on a Confederate battlefield, the holding of the Court might well have been different. The Court’s repeated explanations that Milligan was not a prisoner of war suggest that had these different circumstances been present he could have been detained under military authority for the duration of the conflict, whether or not he was a citizen.[15]Moreover, as Justice Scalia acknowledges, the Court in Ex parte Quirin, 317 U.S. 1 (1942), dismissed the language of Milligan that the petitioners had suggested prevented them from being subject to military process. Post, at 17—18 (dissenting opinion). Clear in this rejection was a disavowal of the New York State cases cited in Milligan, 4 Wall., at 128—129, on which Justice Scalia relies. See id., at 128—129. Both Smith v. Shaw, 12 Johns. *257 (N. Y. 1815), and M’Connell v. Hampton, 12 Johns. *234 (N. Y. 1815), were civil suits for false imprisonment. Even accepting that these cases once could have been viewed as standing for the sweeping proposition for which Justice Scalia cites them–that the military does not have authority to try an American citizen accused of spying against his country during wartime–Quirin makes undeniably clear that this is not the law today. Haupt, like the citizens in Smith and M’Connell, was accused of being a spy. The Court in Quirin found him “subject to trial and punishment by [a] military tribunal[ ]” for those acts, and held that his citizenship did not change this result. 317 U.S., at 31, 37—38.Quirin was a unanimous opinion. It both postdates and clarifies Milligan, providing us with the most apposite precedent that we have on the question of whether citizens may be detained in such circumstances. Brushing aside such precedent–particularly when doing so gives rise to a host of new questions never dealt with by this Court–is unjustified and unwise.To the extent that Justice Scalia accepts the precedential value of Quirin, he argues that it cannot guide our inquiry here because “[i]n Quirin it was uncontested that the petitioners were members of enemy forces,” while Hamdi challenges his classification as an enemy combatant. Post, at 19. But it is unclear why, in the paradigm outlined by Justice Scalia, such a concession should have any relevance. Justice Scalia envisions a system in which the only options are congressional suspension of the writ of habeas corpus or prosecution for treason or some other crime. Post, at 1. He does not explain how his historical analysis supports the addition of a third option–detention under some other process after concession of enemy-combatant status–or why a concession should carry any different effect than proof of enemy-combatant status in a proceeding that comports with due process. To be clear, our opinion only finds legislative authority to detain under the AUMF once it is sufficiently clear that the individual is, in fact, an enemy combatant; whether that is established by concession or by some other process that verifies this fact with sufficient certainty seems beside the point.Further, Justice Scalia largely ignores the context of this case: a United States citizen captured in a foreign combat zone. Justice Scalia refers to only one case involving this factual scenario–a case in which a United States citizen-POW (a member of the Italian army) from World War II was seized on the battlefield in Sicily and then held in the United States. The court in that case held that the military detention of that United States citizen was lawful. See In re Territo, 156 F.2d, at 148.Justice Scalia’s treatment of that case–in a footnote–suffers from the same defect as does his treatment of Quirin: Because Justice Scalia finds the fact of battlefield capture irrelevant, his distinction based on the fact that the petitioner “conceded” enemy combatant status is beside the point. See supra, at 15—16. Justice Scalia can point to no case or other authority for the proposition that those captured on a foreign battlefield (whether detained there or in U.S. territory) cannot be detained outside the criminal process.Moreover, Justice Scalia presumably would come to a different result if Hamdi had been kept in Afghanistan or even Guantanamo Bay. See post, at 25 (Scalia, J., dissenting). This creates a perverse incentive. Military authorities faced with the stark choice of submitting to the full-blown criminal process or releasing a suspected enemy combatant captured on the battlefield will simply keep citizen-detainees abroad. Indeed, the Government transferred Hamdi from Guantanamo Bay to the United States naval brig only after it learned that he might be an American citizen. It is not at all clear why that should make a determinative constitutional difference.IIIEven in cases in which the detention of enemy combatants is legally authorized, there remains the question of what process is constitutionally due to a citizen who disputes his enemy-combatant status. Hamdi argues that he is owed a meaningful and timely hearing and that “extra-judicial detention [that] begins and ends with the submission of an affidavit based on third-hand hearsay” does not comport with the Fifth and Fourteenth Amendments. Brief for Petitioners 16. The Government counters that any more process than was provided below would be both unworkable and “constitutionally intolerable.” Brief for Respondents 46. Our resolution of this dispute requires a careful examination both of the writ of habeas corpus, which Hamdi now seeks to employ as a mechanism of judicial review, and of the Due Process Clause, which informs the procedural contours of that mechanism in this instance.AThough they reach radically different conclusions on the process that ought to attend the present proceeding, the parties begin on common ground. All agree that, absent suspension, the writ of habeas corpus remains available to every individual detained within the United States. U.S. Const., Art. I, §9, cl. 2 (“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it”). Only in the rarest of circumstances has Congress seen fit to suspend the writ. See, e.g., Act of Mar. 3, 1863, ch. 81, §1, 12 Stat. 755; Act of April 20, 1871, ch. 22, §4, 17 Stat. 14. At all other times, it has remained a critical check on the Executive, ensuring that it does not detain individuals except in accordance with law. See INS v. St. Cyr, 533 U.S. 289, 301 (2001). All agree suspension of the writ has not occurred here. Thus, it is undisputed that Hamdi was properly before an Article III court to challenge his detention under 28 U.S.C. § 2241. Brief for Respondents 12. Further, all agree that §2241 and its companion provisions provide at least a skeletal outline of the procedures to be afforded a petitioner in federal habeas review. Most notably, §2243 provides that “the person detained may, under oath, deny any of the facts set forth in the return or allege any other material facts,” and §2246 allows the taking of evidence in habeas proceedings by deposition, affidavit, or interrogatories.The simple outline of §2241 makes clear both that Congress envisioned that habeas petitioners would have some opportunity to present and rebut facts and that courts in cases like this retain some ability to vary the ways in which they do so as mandated by due process. The Government recognizes the basic procedural protections required by the habeas statute, Id., at 37—38, but asks us to hold that, given both the flexibility of the habeas mechanism and the circumstances presented in this case, the presentation of the Mobbs Declaration to the habeas court completed the required factual development. It suggests two separate reasons for its position that no further process is due.BFirst, the Government urges the adoption of the Fourth Circuit’s holding below–that because it is “undisputed” that Hamdi’s seizure took place in a combat zone, the habeas determination can be made purely as a matter of law, with no further hearing or factfinding necessary. This argument is easily rejected. As the dissenters from the denial of rehearing en banc noted, the circumstances surrounding Hamdi’s seizure cannot in any way be characterized as “undisputed,” as “those circumstances are neither conceded in fact, nor susceptible to concession in law, because Hamdi has not been permitted to speak for himself or even through counsel as to those circumstances.” 337 F.3d 335, 357 (CA4 2003) (Luttig, J., dissenting from denial of rehearing en banc); see also id., at 371—372 (Motz, J., dissenting from denial of rehearing en banc). Further, the “facts” that constitute the alleged concession are insufficient to support Hamdi’s detention. Under the definition of enemy combatant that we accept today as falling within the scope of Congress’ authorization, Hamdi would need to be “part of or supporting forces hostile to the United States or coalition partners” and “engaged in an armed conflict against the United States” to justify his detention in the United States for the duration of the relevant conflict. Brief for Respondents 3. The habeas petition states only that “[w]hen seized by the United States Government, Mr. Hamdi resided in Afghanistan.” App. 104. An assertion that one resided in a country in which combat operations are taking place is not a concession that one was “captured in a zone of active combat operations in a foreign theater of war,” 316 F.3d, at 459 (emphasis added), and certainly is not a concession that one was “part of or supporting forces hostile to the United States or coalition partners” and “engaged in an armed conflict against the United States.” Accordingly, we reject any argument that Hamdi has made concessions that eliminate any right to further process.CThe Government’s second argument requires closer consideration. This is the argument that further factual exploration is unwarranted and inappropriate in light of the extraordinary constitutional interests at stake. Under the Government’s most extreme rendition of this argument, “[r]espect for separation of powers and the limited institutional capabilities of courts in matters of military decision-making in connection with an ongoing conflict” ought to eliminate entirely any individual process, restricting the courts to investigating only whether legal authorization exists for the broader detention scheme. Brief for Respondents 26. At most, the Government argues, courts should review its determination that a citizen is an enemy combatant under a very deferential “some evidence” standard. Id., at 34 (“Under the some evidence standard, the focus is exclusively on the factual basis supplied by the Executive to support its own determination” (citing Superintendent, Mass. Correctional Institution at Walpole v. Hill, 472 U.S. 445, 455—457 (1985) (explaining that the some evidence standard “does not require” a “weighing of the evidence,” but rather calls for assessing “whether there is any evidence in the record that could support the conclusion”)). Under this review, a court would assume the accuracy of the Government’s articulated basis for Hamdi’s detention, as set forth in the Mobbs Declaration, and assess only whether that articulated basis was a legitimate one. Brief for Respondents 36; see also 316 F.3d, at 473—474 (declining to address whether the “some evidence” standard should govern the adjudication of such claims, but noting that “[t]he factual averments in the [Mobbs] affidavit, if accurate, are sufficient to confirm” the legality of Hamdi’s detention).In response, Hamdi emphasizes that this Court consistently has recognized that an individual challenging his detention may not be held at the will of the Executive without recourse to some proceeding before a neutral tribunal to determine whether the Executive’s asserted justifications for that detention have basis in fact and warrant in law. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 690 (2001); Addington v. Texas, 441 U.S. 418, 425—427 (1979). He argues that the Fourth Circuit inappropriately “ceded power to the Executive during wartime to define the conduct for which a citizen may be detained, judge whether that citizen has engaged in the proscribed conduct, and imprison that citizen indefinitely,” Brief for Petitioners 21, and that due process demands that he receive a hearing in which he may challenge the Mobbs Declaration and adduce his own counter evidence. The District Court, agreeing with Hamdi, apparently believed that the appropriate process would approach the process that accompanies a criminal trial. It therefore disapproved of the hearsay nature of the Mobbs Declaration and anticipated quite extensive discovery of various military affairs. Anything less, it concluded, would not be “meaningful judicial review.” App. 291.Both of these positions highlight legitimate concerns. And both emphasize the tension that often exists between the autonomy that the Government asserts is necessary in order to pursue effectively a particular goal and the process that a citizen contends he is due before he is deprived of a constitutional right. The ordinary mechanism that we use for balancing such serious competing interests, and for determining the procedures that are necessary to ensure that a citizen is not “deprived of life, liberty, or property, without due process of law,” U.S. Const., Amdt. 5, is the test that we articulated in Mathews v. Eldridge, 424 U.S. 319 (1976). See, e.g., Heller v. Doe, 509 U.S. 312, 330—331 (1993); Zinermon v. Burch, 494 U.S. 113, 127—128 (1990); United States v. Salerno, 481 U.S. 739, 746 (1987); Schall v. Martin, 467 U.S. 253, 274—275 (1984); Addington v. Texas, supra, at 425. Mathews dictates that the process due in any given instance is determined by weighing “the private interest that will be affected by the official action” against the Government’s asserted interest, “including the function involved” and the burdens the Government would face in providing greater process. 424 U.S., at 335. The Mathews calculus then contemplates a judicious balancing of these concerns, through an analysis of “the risk of an erroneous deprivation” of the private interest if the process were reduced and the “probable value, if any, of additional or substitute safeguards.” Ibid. We take each of these steps in turn.1It is beyond question that substantial interests lie on both sides of the scale in this case. Hamdi’s “private interest … affected by the official action,” ibid., is the most elemental of liberty interests–the interest in being free from physical detention by one’s own government. Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (“Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action”); see also Parham v. J. R., 442 U.S. 584, 600 (1979) (noting the “substantial liberty interest in not being confined unnecessarily”). “In our society liberty is the norm,” and detention without trial “is the carefully limited exception.” Salerno, supra, at 755. “We have always been careful not to ‘minimize the importance and fundamental nature’ of the individual’s right to liberty,” Foucha, supra, at 80 (quoting Salerno, supra, at 750), and we will not do so today.Nor is the weight on this side of the Mathews scale offset by the circumstances of war or the accusation of treasonous behavior, for “[i]t is clear that commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection,” Jones v. United States, 463 U.S. 354, 361 (1983) (emphasis added; internal quotation marks omitted), and at this stage in the Mathews calculus, we consider the interest of the erroneously detained individual. Carey v. Piphus, 435 U.S. 247, 259 (1978) (“Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property”); see also id., at 266 (noting “the importance to organized society that procedural due process be observed,” and emphasizing that “the right to procedural due process is ‘absolute’ in the sense that it does not depend upon the merits of a claimant’s substantive assertions”). Indeed, as amicus briefs from media and relief organizations emphasize, the risk of erroneous deprivation of a citizen’s liberty in the absence of sufficient process here is very real. See Brief for AmeriCares et al. as Amici Curiae 13—22 (noting ways in which “[t]he nature of humanitarian relief work and journalism present a significant risk of mistaken military detentions”). Moreover, as critical as the Government’s interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat. See Ex parte Milligan, 4 Wall., at 125 (“[The Founders] knew–the history of the world told them–the nation they were founding, be its existence short or long, would be involved in war; how often or how long continued, human foresight could not tell; and that unlimited power, wherever lodged at such a time, was especially hazardous to freemen”). Because we live in a society in which “[m]ere public intolerance or animosity cannot constitutionally justify the deprivation of a person’s physical liberty,” O’Connor v. Donaldson, 422 U.S. 563, 575 (1975), our starting point for the Mathews v. Eldridge analysis is unaltered by the allegations surrounding the particular detainee or the organizations with which he is alleged to have associated. We reaffirm today the fundamental nature of a citizen’s right to be free from involuntary confinement by his own government without due process of law, and we weigh the opposing governmental interests against the curtailment of liberty that such confinement entails.2On the other side of the scale are the weighty and sensitive governmental interests in ensuring that those who have in fact fought with the enemy during a war do not return to battle against the United States. As discussed above, supra, at 10, the law of war and the realities of combat may render such detentions both necessary and appropriate, and our due process analysis need not blink at those realities. Without doubt, our Constitution recognizes that core strategic matters of warmaking belong in the hands of those who are best positioned and most politically accountable for making them. Department of Navy v. Egan, 484 U.S. 518, 530 (1988) (noting the reluctance of the courts “to intrude upon the authority of the Executive in military and national security affairs”); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952) (acknowledging “broad powers in military commanders engaged in day-to-day fighting in a theater of war”).The Government also argues at some length that its interests in reducing the process available to alleged enemy combatants are heightened by the practical difficulties that would accompany a system of trial-like process. In its view, military officers who are engaged in the serious work of waging battle would be unnecessarily and dangerously distracted by litigation half a world away, and discovery into military operations would both intrude on the sensitive secrets of national defense and result in a futile search for evidence buried under the rubble of war. Brief for Respondents 46—49. To the extent that these burdens are triggered by heightened procedures, they are properly taken into account in our due process analysis.3Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad. See Kennedy v. Mendoza&nbhyph;Martinez, 372 U.S. 144, 164—165 (1963) (“The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with guarantees which, it is feared, will inhibit government action”); see also United States v. Robel, 389 U.S. 258, 264 (1967) (“It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties … which makes the defense of the Nation worthwhile”).With due recognition of these competing concerns, we believe that neither the process proposed by the Government nor the process apparently envisioned by the District Court below strikes the proper constitutional balance when a United States citizen is detained in the United States as an enemy combatant. That is, “the risk of erroneous deprivation” of a detainee’s liberty interest is unacceptably high under the Government’s proposed rule, while some of the “additional or substitute procedural safeguards” suggested by the District Court are unwarranted in light of their limited “probable value” and the burdens they may impose on the military in such cases. Mathews, 424 U.S., at 335.We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker. See Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 542 (1985) (“An essential principle of due process is that a deprivation of life, liberty, or property ‘be preceded by notice and opportunity for hearing appropriate to the nature of the case’ ” (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)); Concrete Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal., 508 U.S. 602, 617 (1993) (“due process requires a ‘neutral and detached judge in the first instance’ ” (quoting Ward v. Monroeville, 409 U.S. 57, 61—62 (1972)). “For more than a century the central meaning of procedural due process has been clear: ‘Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.’ It is equally fundamental that the right to notice and an opportunity to be heard ‘must be granted at a meaningful time and in a meaningful manner.’ ” Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (quoting Baldwin v. Hale, 1 Wall. 223, 233 (1864); Armstrong v. Manzo, 380 U.S. 545, 552 (1965) (other citations omitted)). These essential constitutional promises may not be eroded.At the same time, the exigencies of the circumstances may demand that, aside from these core elements, enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict. Hearsay, for example, may need to be accepted as the most reliable available evidence from the Government in such a proceeding. Likewise, the Constitution would not be offended by a presumption in favor of the Government’s evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided. Thus, once the Government puts forth credible evidence that the habeas petitioner meets the enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria. A burden-shifting scheme of this sort would meet the goal of ensuring that the errant tourist, embedded journalist, or local aid worker has a chance to prove military error while giving due regard to the Executive once it has put forth meaningful support for its conclusion that the detainee is in fact an enemy combatant. In the words of Mathews, process of this sort would sufficiently address the “risk of erroneous deprivation” of a detainee’s liberty interest while eliminating certain procedures that have questionable additional value in light of the burden on the Government. 424 U.S., at 335.[16]We think it unlikely that this basic process will have the dire impact on the central functions of warmaking that the Government forecasts. The parties agree that initial captures on the battlefield need not receive the process we have discussed here; that process is due only when the determination is made to continue to hold those who have been seized. The Government has made clear in its briefing that documentation regarding battlefield detainees already is kept in the ordinary course of military affairs. Brief for Respondents 3—4. Any factfinding imposition created by requiring a knowledgeable affiant to summarize these records to an independent tribunal is a minimal one. Likewise, arguments that military officers ought not have to wage war under the threat of litigation lose much of their steam when factual disputes at enemy-combatant hearings are limited to the alleged combatant’s acts. This focus meddles little, if at all, in the strategy or conduct of war, inquiring only into the appropriateness of continuing to detain an individual claimed to have taken up arms against the United States. While we accord the greatest respect and consideration to the judgments of military authorities in matters relating to the actual prosecution of a war, and recognize that the scope of that discretion necessarily is wide, it does not infringe on the core role of the military for the courts to exercise their own time-honored and constitutionally mandated roles of reviewing and resolving claims like those presented here. Cf. Korematsu v. United States, 323 U.S. 214, 233—234 (1944) (Murphy, J., dissenting) (“[L]ike other claims conflicting with the asserted constitutional rights of the individual, the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled”); Sterling v. Constantin, 287 U.S. 378, 401 (1932) (“What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicialquestions”).In sum, while the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting, the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen’s core rights to challenge meaningfully theGovernment’s case and to be heard by an impartialadjudicator.DIn so holding, we necessarily reject the Government’s assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. 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 the Nation’s citizens. Youngstown Sheet & Tube, 343 U.S., at 587. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake. Mistretta v. United States, 488 U.S. 361, 380 (1989) (it was “the central judgment of the Framers of the Constitution that, within our political scheme, the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty”); Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 426 (1934) (The war power “is a power to wage war successfully, and thus it permits the harnessing of the entire energies of the people in a supreme cooperative effort to preserve the nation. But even the war power does not remove constitutional limitations safeguarding essential liberties”). Likewise, we have made clear that, unless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive’s discretion in the realm of detentions. See St. Cyr, 533 U.S., at 301 (“At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest”). Thus, while we do not question that our due process assessment must pay keen attention to the particular burdens faced by the Executive in the context of military action, it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge. Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process.Because we conclude that due process demands some system for a citizen detainee to refute his classification, the proposed “some evidence” standard is inadequate. Any process in which the Executive’s factual assertions go wholly unchallenged or are simply presumed correct without any opportunity for the alleged combatant to demonstrate otherwise falls constitutionally short. As the Government itself has recognized, we have utilized the “some evidence” standard in the past as a standard of review, not as a standard of proof. Brief for Respondents 35. That is, it primarily has been employed by courts in examining an administrative record developed after an adversarial proceeding–one with process at least of the sort that we today hold is constitutionally mandated in the citizen enemy-combatant setting. See, e.g., St. Cyr, supra; Hill, 472 U.S., at 455—457. This standard therefore is ill suited to the situation in which a habeas petitioner has received no prior proceedings before any tribunal and had no prior opportunity to rebut the Executive’s factual assertions before a neutral decisionmaker.Today we are faced only with such a case. Aside from unspecified “screening” processes, Brief for Respondents 3—4, and military interrogations in which the Government suggests Hamdi could have contested his classification, Tr. of Oral Arg. 40, 42, Hamdi has received no process. An interrogation by one’s captor, however effective an intelligence-gathering tool, hardly constitutes a constitutionally adequate factfinding before a neutral decisionmaker. Compare Brief for Respondents 42—43 (discussing the “secure interrogation environment,” and noting that military interrogations require a controlled “interrogation dynamic” and “a relationship of trust and dependency” and are “a critical source” of “timely and effective intelligence”) with Concrete Pipe, 508 U.S., at 617—618 (“one is entitled as a matter of due process of law to an adjudicator who is not in a situation which would offer a possible temptation to the average man as a judge . . . which might lead him not to hold the balance nice, clear and true” (internal quotation marks omitted). That even purportedly fair adjudicators “are disqualified by their interest in the controversy to be decided is, of course, the general rule.” Tumey v. Ohio, 273 U.S. 510, 522 (1927). Plainly, the “process” Hamdi has received is not that to which he is entitled under the Due Process Clause.There remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal. Indeed, it is notable that military regulations already provide for such process in related instances, dictating that tribunals be made available to determine the status of enemy detainees who assert prisoner-of-war status under the Geneva Convention. See Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, Army Regulation 190—8, §1—6 (1997). In the absence of such process, however, a court that receives a petition for a writ of habeas corpus from an alleged enemy combatant must itself ensure that the minimum requirements of due process are achieved. Both courts below recognized as much, focusing their energies on the question of whether Hamdi was due an opportunity to rebut the Government’s case against him. The Government, too, proceeded on this assumption, presenting its affidavit and then seeking that it be evaluated under a deferential standard of review based on burdens that it alleged would accompany any greater process. As we have discussed, a habeas court in a case such as this may accept affidavit evidence like that contained in the Mobbs Declaration, so long as it also permits the alleged combatant to present his own factual case to rebut the Government’s return. We anticipate that a District Court would proceed with the caution that we have indicated is necessary in this setting, engaging in a factfinding process that is both prudent and incremental. We have no reason to doubt that courts faced with these sensitive matters will pay proper heed both to the matters of national security that might arise in an individual case and to the constitutional limitations safeguarding essential liberties that remain vibrant even in times of security concerns.IVHamdi asks us to hold that the Fourth Circuit also erred by denying him immediate access to counsel upon his detention and by disposing of the case without permitting him to meet with an attorney. Brief for Petitioners 19. Since our grant of certiorari in this case, Hamdi has been appointed counsel, with whom he has met for consultation purposes on several occasions, and with whom he is now being granted unmonitored meetings. He unquestionably has the right to access to counsel in connection with the proceedings on remand. No further consideration of this issue is necessary at this stage of the case.* * *The judgment of the United States Court of Appeals for the Fourth Circuit is vacated, and the case is remanded for further proceedings.It is so ordered.
III. The Relationship of Law and the Government of the State―Role of Law/Rule of LawFor the second part of this course, we have been considering the relationship between law and the organs of state government. We have explored the two principal models that are the foundation of the organization of virtually every state in the West and many in most other parts of the world to some extent. We then examined the way in which law and any manifestation of the organs of government are ordered. We have come to understand the foundational importance of hierarchy in the structuring of law systems and of their relationship to government. We have examined in that connection the relationship between government and the “higher law” of the constitution in the West. We then examined the consequences of a systems structured with a higher law at its top and government and subordinate law forms extending beneath it. Lastly we considered the traditional relationship between the law inside a state―its domestic legal order―and the law outside of the state. The latter, now understood as international law, has undergone substantial changes since 1945 and the creation of a governance architecture built around international organizations, the United Nations, World Trade Organization, regional human rights courts and the like. Simultaneously, the ability of states to protect their domestic legal orders has been challenged as borders have become more porous to transactions in goods, capital, services and to a lesser extent, people, in a process usually understood as economic globalization. Together, these trends have made it harder for states to shut international out of their domestic legal orders; but not entirely. We ended our last chapter with a consideration of Medillin, the Supreme Court’s embrace of a very traditional and historically conventional approach to protecting the borders between domestic and international lawmaking within the United States. Medellin is not a unique expression of American values. It is reflected in the ideologies of important sectors of the American political class as well (e.g., President Bush’s Second Inaugural Address: A Revolutionary Manifesto For International Law in Chaotic Times,[17] Law at the End of the Day, April 1, 2006).With this chapter we finish our consideration of the issues that frame Western, and particularly American, understandings of the relationship between law and government and that also structure the hierarchical relationships between law and government and among distinct classes of law. Our object today is to organize the preceding materials around its ideological core―an ideological core that probably best states the core premises of American legal theory. That core ideology is commonly referenced by lawyers―and increasingly by our political officials―as “rule of law.” I have elsewhere suggested a standard model for rule of law in the early 21st century:[18]The normative basis for evaluating the proper conduct of a state, as the locus of political power within a defined territory, is to some large extent bundled up in the complex of concepts understood as the “rule of law:”What we in the West have come to call the “rule of law” has always been a multi-edged sword. It is most commonly deployed to guard against arbitrary use of state power by people with access to that power. It is in this sense that the rule of law is perhaps best understood. In its basic political sense it encompasses ideals such as free and fair elections, protected through the instrumentalities of the state, principally the independent judiciary, against abuse by individuals. The rule of law can also be used to protect a polity against its own excesses. [Larry Catá Backer, Using Law Against Itself: Bush v. Gore Applied in the Courts,[19] 55 Rutgers L. Rev. 1109, 1110-11 (2003). I noted there the growing influence of these notions outside the West, citing to the work of Anwar Ibrahim, an influential Malay politician: “For Ibrahim, the rule of law encapsulates three principles. . .The first is the predominance of regular law so that the government has no arbitrary authority over the citizen. . .Secondly, all citizens are equally subject to the ordinary law administered by the ordinary courts. . And thirdly, perhaps the most significant, the citizen’s personal freedoms are formulated and protected by the ordinary law, rather than by abstract constitutional declarations.” Id. at 1109 n.1 (quoting Anwar Ibrahim, The Asian Renaissance[20] 63 (1996)).As a consequence, conformity of the state to accepted standards of rule-of-law notions tends to be measured only against the performance of the state—principally through its government. The core of this measure is focused on the regularization of rulemaking. Power must be exercised only through regular processes of rulemaking. [On process and rule of law, see Randy E. Barnett, The Structure of Liberty: Justice and the Rule of Law 257-301 (1998)]. Rules must apply fairly to all, and the mechanisms for their enactment and enforcement must also be applied fairly and equally to all. [“The idea of the rule of law is also inextricably linked with certain basic institutional arrangements. The fundamental notion of equality, which lies close to the heart of our convictions about justice and fairness, demands an equal voice for all adult citizens in the legislative process.” T.R.S. Allan, Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism 22 (1993). See also Thomas M. Franck, Fairness in International Law and Institutions (1997)]. No individual is above fairly enacted rules, nor is any individual delegated the power to make rules other than as part of systems for rulemaking that are representative and not inherently arbitrary. Additionally, all laws must respect certain boundaries of state power. Law must not be used for bad ends. While this moral or ethical component can take many forms, it generally encompasses behavioral norms now commonly understood to comprise an international system of human rights.There is thus something of a consensus in the West with respect to the necessary connection between the form in which rulemaking power is manifested and political legitimacy. (See, e.g., Spencer Zifac, Globalizing the Rule of Law: Rethinking Values and Reforming Institutions, in Globalisation and the Rule of Law 32-65 (Spencer Zifcak ed., 2005)). For the earlier English version of the concept, see, e.g., A.V. Dicey, Introduction to the Study of Law of the Constitution[21]107-23 (Liberty Classics 1982) (1885). Rawls nicely summarized the consensus:Political power is legitimate only when it is exercised in accordance with a constitution (written or unwritten) the essentials of which all citizens, as reasonable and rational, can endorse in the light of their common human reason. This is the liberal principle of legitimacy. It is a further desideratum that all legislative questions that concern or border on those essentials, or are highly divisive, should also be settled, so far as possible, by guidelines and values that can be similarly endorsed. (John Rawls, Justice as Fairness: a Restatement[22]41 (2001)).That law may not be used for bad ends, a premise we have first encountered in the Institutes, is here refashioned by some as the idea of “thick” rule of law. (See Randall Peerenboom, Varieties of Rule of Law: An Introduction and Provisional Conclusion, in Theories and Implementation of Rule of Law in Twelve Asian Countries, France and the U.S. 1, 4 (Randall Peerenboom, ed., 2004). In German theory it encompasses the idea of the sozialstaat. “The Sozialstaat stands for social justice and obligates the government to provide for the basic needs of all Germans.” (Donald Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany 35 (1997)). Its international dimensions is grounded in ideas, current after 1945, that there were a group of basic substantive norms that must be held commonly by the community of states. This idea derived great impetus from the insight that a state could conform to a process-centered rule of law to commit bad deeds against the powerless. As a consequence, process alone would be insufficient to produce a thick rule of law ideology that produced appropriate conformity to actions and values. In the Twentieth Century, the great models of rule of law states gone awry were Germany between 1943 and 1945 and Japan prior to 1945. (e.g., See Meryll Dean, Japanese Legal System: Text and Materials 76-79 (1997); Donald P. Kommers, supra 30-41 (1997)). We have seen in our last class how some constitutions recognize this component explicitly. See, e.g., S. Afr. Const. 1996,[23] art. 39(1) (“When interpreting the Bill of Rights, a court, tribunal or forum—(a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; (b) must consider international law; and (c) may consider foreign law.”).Our first reading, United Nations Rule of Law, “What is the Rule of Law,”[24] adds context to the notion of Rule of Law. It seeks to draw on traditions across the world in ancient cultures for the idea that at some level the idea of Rule of Law is universal.The notion of the “rule of law” stems from many traditions and continents and is intertwined with the evolution of the history of law itself. The Code of Hammourabi, promulgated by the King of Babylon around 1760 BC, is one of the first examples of the codification of law, presented to the public and applying to the acts of the ruler. In the Arab world, a rich tradition of Islamic law embraced the notion of the supremacy of law. Core principles of holding government authority to account and placing the wishes of the populace before the rulers, can be found amid the main moral and philosophical traditions across the Asian continent, including in Confucianism. In the Anglo-American context, the Magna Carta of 1215 was a seminal document, emphasizing the importance of the independence of the judiciary and the role of judicial process as fundamental characteristics of the rule of law. In continental Europe notions of rule of law focused on the nature of the State, particularly on the role of constitutionalism. (Ibid).It then looks to recent efforts to formalize and combine these related global traditions into a working concept with legal and political implications. “The modern conception of the rule of law has developed as a concept distinct from the “rule of man”, involving a system of governance based on non-arbitrary rules as opposed to one based on the power and whim of an absolute ruler. The concept of rule of law is deeply linked to the principle of justice, involving an ideal of accountability and fairness in the protection and vindication of rights and the prevention and punishment of wrongs.” (Ibid).
It notes that a version of the concept of Rule of Law has been universalized and embedded in the Charter of the United Nations.[25]In its Preamble, one of the aims of the UN is “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained”. A primary purpose of the Organization is “to maintain international peace and security… and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.” The Universal Declaration of Human Rights[26] of 1948, the historic international recognition that all human beings have fundamental rights and freedoms, recognizes that “… it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law…”
And it refers to a proffered definition put forward by the U.N. Secretary General:“a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.” (Report of the Secretary-General: The rule of law and transitional justice in conflict and post-conflict societies (2004)[27]) (Ibid., emphasis omitted).For the United Nations, Rule of Law is a concept that applies both to states and international organizations. It applies within domestic legal orders and to constrain the relationships among states.At the national level, the UN supports a rule of law framework that includes a Constitution or its equivalent, as the highest law of the land; a clear and consistent legal framework, and implementation thereof; strong institutions of justice, governance, security and human rights that are well structured, financed, trained and equipped; transitional justice processes and mechanisms; and a public and civil society that contributes to strengthening the rule of law and holding public officials and institutions accountable. (Ibid).At the international level, the core notion of Rule of Law has been elaborated to some extent in the The Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations[28] and applies to state to state relations drawn from existing commitments in international law, the core values and principles of the UN include respect for the Charter and international law; respect for the sovereign equality of States and the principle of non-use or threat of use of force; the fulfillment in good faith of international obligations; the need to resolve disputes by peaceful means; respect for and protection of human rights and fundamental freedoms; recognition that protection from genocide, crimes against humanity, ethnic cleansing and war crimes is not only a responsibility owed by a State to its population, but a responsibility of the international community, the equal rights and self-determination of peoples; and the recognition that peace and security, development, human rights, the rule of law and democracy are interlinked and mutually reinforcing.(Ibid).Taken together, the United Nations proffers a dual track but parallel system of Rule of Law ideology that is both drawn from the cultural and legal traditions of the major centers of world civilization, but that is then articulated by the community of nations in congress at the United Nations, with application both to the organization of domestic legal orders (and the elaborations of constraints thereto) and to the organizational and operation of a parallel but equally binding system of international law. Rule of Law, then, comes up from the bottom but is formalized and protected from the top.
In our second reading, Norhiro Urabe, “Rule of Law and Due Process: A Comparative View of the United States and Japan,”[29] Law and Contemporary Problems 53(1):61-72 (1990), suggests the optimism of the United Nations version of Rule of Law. Urabe considers the American embrace of rule of law by considering it from a perspective outside the United States. Urabe contrasts the thick rule of law that has become important in the ideology of American rule of law with the more process driven “thin” rule of law represented by modern conceptions of Rechtsstaat which he understands as “administration by law.” (Ibid., 62).In summary, the major distinction between the Rule of Law underlying Western constitutionalism and Rechtstaat or Rule of Law of German and Japanese origin is where power and rights are vested. The Western Rule of Law holds that `powers and rights vest naturally in individuals and that government is limited in its power to infringe upon these rights. On the contrary, the Rechtsstaat, a more hierarchical tradition, holds that all powers and rights naturally vest in government, which then allocates rights and powers to its citizens. Rechtsstaat does not recognize any individual rights as fundamental; government and not nature is the source of individual rights. (Ibid., pp. 62-63).Urabe characterizes the sources and expression of rule of law in the United States this way: “[O]ne can find a consensus in England and the United States that the central meaning of the Rule of Law is that governmental power should be bound by law. In Japan things are quite different.” (Ibid., 67). Urabe finds rule of law incorporated in Japanese law in a number of ways. First in the concept that the “supreme law in the constitution is deemed to be an expression of the Rule of Law.” (Ibid., 64). Second, the Constitution is understood as the source of the protection of human rights in Japan. (Ibid., 65). Third, the Constitution incorporates as a fundamental precept the concept of due process. (Ibid.). Fourth, the entire judicial power is vested in the Japanese Supreme Court. (Ibid). Lastly, this judicial power includes judicial review of the constitutionality of legislation. (Ibid).Urabe notes that in contrast to the United States, Japanese Rule of Law advocates embraced the idea that the central meaning of the Rule of law was that “people should obey the law.” (Ibid., 68) This was proffered as the antithesis of the “Rule of Force.” (Ibid), but not the use of force by the state―rather Urabe refers to what we now understand as the power of mass movement. This, Urabe notes, was the position taken by two influential advocates of the Rule of Law in Japan, Chief Justices Kotaro Tanaka and Kisaburo Yokota. (Ibid.). For them, the expression of direct popular power, whether through labor strikes or mass movements that affect the functioning of the Japanese legislature represented a breakdown of the rule of law in favor of what Westerners might call “mob rule” or the “Rule of Force.” Rule of law, then, “meant the exclusion of unlawful force of any kind.” (Ibid). And of course, the only lawful force was that provided in law by the legitimate state organs to government. While in England, these advocates noted, rule of law was used against government, which was unnecessary in Post War Japan. The difference was attributable to the state of government in England and Japan. In England the Rule of law was needed to constrain what had then been viewed as its exercise of autocratic and unlimited power. In post war Japan, there is no autocratic government and thus rule of law had to be deployed to constrain mass democratic movements as the real source of unlimited and potentially autocratic power. “Therefore the most important purpose of the Rule of Law was not to bind governmental power but to exclude the use of force by the people and to require people to obey the law.” (Ibid).If Rule of Law is directed against expression of popular power in Japan, in contrast to England the United States where it is directed against governmental power, then the role of the constitution in each state assumes a different character. Urabe suggests that a natural consequence in Japan is that “the Constitution is given much importance in Japan as a matter of form or theory. . . . In Japan, the Constitution is in most cases treated as important in principle, but of little importance in practice.” (Ibid, 69). And Japanese courts rarely tend to apply Rule of Law against assertions of governmental power. (Ibid., 69-70). He notes the few cases of judicial determinations that legislation exceeded the powers of government and suggested that even where the Supreme Court had declared a law unconstitutional, the effect was little felt on Japanese political or social life. (Ibid., 70).He concludes that the Rule of Law is, indeed, a universal principle, but only “so long as the phrase refers to the protection of the rights and liberties of the people.” (Ibid., 71). These protections have not been fully realized when measured against the American yardstick. But then, the current constitutional system was itself given to the people by a Higher Authority―the General Headquarters of the Supreme Commander for the Allied Powers―in a way reminiscent of the process of Imperial constitutionalism in the late 19th century. This tends to reinforce the idea of the rule of law as proceeding from a higher state power and directed toward the management of the population and to maintain proper democratic order. Still, the movement towards American style rule of law, Urabe suggests, continues to advance in Japan (Ibid., 72). Yet Urabe also illustrates the power of the distinct foundational schools of governance organization we began to study with the materials of Section II-A. For societies grounded on notions of communal power and on the identity of communal authority and the apparatus of state, the idea of obedience is strong, the protections of process and legality are powerful and the focus of Rule of Law must necessarily be on the management of individualistic and anti-social elements. The opposite is true for societies that embrace the premise of property and individual right, the idea of constraining the state is strong and the focus of rule of law is on process and substance, each crafted to provide rules limiting state power to affect individual autonomy while preserving enough power in the state to protect individual interests in life, liberty and property.If Urabe seeks to contextualize and challenge the move toward a unitary and well-disciplined ideology of “Rule of Law”, the third reading, David Clark, “The Many Meanings of the Rule of Law” seeks to develop taxonomy of the concept. “The expression refers to a doctrine―some would say, an ideology―about how the governments should act, and has been used as a synonym for constitutional government and sometimes, though as we shall see these terms are not coeval, to mean democratic government. In intellectual discussions there are various versions of the term and this short essay will assay some of these meanings and then deal with the relationship between the doctrine and legal institutions and also the relationship between the doctrine and the idea of rule by law.” (Ibid). After a brief historical introduction focused on the development of what becomes the rule of law notion in the West, and its eventual expression as constitutional practice in the United States and England, Clark considers the evolution of modern “Rule of Law” theories starting with the germinal work of Albert Venn Dicey on the rule of law in England. He summarized Dicey’s views this way:-that no person is punishable except for a breach of law established in the ordinary manner before the ordinary courts of the land; this is in contrast to arbitrary power and excludes wide discretionary authority;
-that no man is above the law; that every person, whatever be his rank and condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals, or equality before the law and this excludes exemptions of officials or others from a duty to obey the law which governs citizens;
-that general principles of the constitution are the result of judicial decisions determining the rights of private persons in particular cases brought before the courts. (Ibid)Later versions, Clark notes, “stressed the formal rather than the substantive aspects of the law, and eschewed all connections with human rights or a Bill of Rights, or in fact,with a democratic political order of the western type.” These purely procedural models might be reduced to notions that the term “in some states merely means that parties before a court are entitled to be treated in accordance with the rules in existence at the time the case is heard.” (Ibid).The problem with this view is that while it proved a way of distinguishing between arbitrary government, i.e., government where there are either no rules, or rules of a certain type, and the rule of law in the formal sense, this model was compatible with a range of political regimes including apartheid South Africa and even Nazi Germany, both of which had rules and laws. . . . Thus these conditions are a new substantive twist to the rule of law by saying something about the content of the rules themselves . . . . One argument for this approach is that unless there are such standards, governments will continue to treat their citizens, or some of their citizens, according to whim or even deliberate policies that entail abuses of human rights. This argument necessarily implies that national borders were permeable, and that governments did not have absolute sovereignty to do whatever they liked. (Ibid).As a consequence, especially inthe West, there has been a movement from rule of law from a process and institutional legitimation function to one more deeply concerned with substantive political ideals, especially that of the democratic organization of the state. These ideals, of course, Clark stresses, may be hard to implement consistently, even in democratic Western states. Thus, Clark notes, it is sometimes argued that rule of law serves as an ideological mask behind which social and economic hierarchies can continue to operate relatively unimpeded.Clark makes three points that reflect a general consensus in the West about at least the broadest outlines of rule of law:In practice, most rule of law systems recognise that large congeries of power are potentially dangerous and have sought to either divide power or at least balance off the various branches of government, and have also recognised that the executive in particular, ought to be accountable for what it does. . . .In practice, the operation of a rule of law state assumes that public officials are aware of the legal limits on their power, and will for the most part accept these limits. The evidence shows that this is not always so . . . , though this is normally not so widespread or blatant as to undermine the legitimacy of the legal system as a whole, but its corrosive effects on public sentiment towards the legal system ought not to be underestimated. . . .
Another assumption is that legitimacy comes from obeying the law, and in democratic systems by having attained power by free and fair elections; and also that the state recognises a relatively autonomous civil society consisting of voluntary organisations, . . . which the state does not directly control and in operations of which it does not interfere. (Ibid).These do not all always cut in the same direction; nor may be internally consistent. He ends with a consideration of a distinct approach to rule of law in East Asia. Taken together, though, one again, senses the importance of Rule of law as an organizing principle that is sometimes used as shorthand for the core premises on which institutional legitimacy is founded and a reaffirmation of the special role the core structural relationships among law, government, people and officials through which the political organs of state power are organized. In effect, then perhaps, Rule of Law is shorthand for the core principles of the organization of the law-state in its modern form. To the extent that this shorthand then serves to draw distinctions between legitimate and illegitimate forms of organizing and implementing state power through government and law systems, Rule of Law itself becomes an important ideological battleground. (e.g., Backer, Larry Catá, From Constitution to Constitutionalism: A Global Framework for Legitimate Public Power Systems.[30] Penn State Law Review, Vol. 113, No. 3, 2009).We end with a consideration of the application of Rule of Law principles in contemporary American constitutional law, Hamdi v. Rumsfeld,[31] 124 S Ct 2633 (2004), paying special attention to Parts I and III of the plurality opinion. In Hamdi a divided Supreme Court held that “although Congress authorized the detention of combatants in the narrow circumstances alleged here. Due process demands that a citizen held in the United States as an enemy combatant be given meaningful opportunity to contest the factual basis for that detention before a neutral decision maker.” Most interesting here is the way in which the process aspects of rule of law are embedded and shaped by the context in which they arise and that notions of absolutes in rule of law remain absent from the legal discourse in the United States within its judicial architecture. (Hamdi, slip op. 1).
The facts of the case are straightforward:This case arises out of the detention of a man whom the Government alleges took up arms with the Taliban during this conflict. His name is Yaser Esam Hamdi. Born an American citizen in Louisiana in 1980, Hamdi moved with his family to Saudi Arabia as a child. By 2001, the parties agree, he resided in Afghanistan. At some point that year, he was seized by members of the Northern Alliance, a coalition of military groups opposed to the Taliban government, and eventually was turned over to the United States military. The Government asserts that it initially detained and interrogated Hamdi in Afghanistan before transferring him to the United States Naval Base in Guantanamo Bay in January 2002. In April 2002, upon learning that Hamdi is an American citizen, authorities transferred him to a naval brig in Norfolk, Virginia, where he remained until a recent transfer to a brig in Charleston, South Carolina. The Government contends that Hamdi is an enemy combatant, and that this status justifies holding him in the United States indefinitely without formal charges or proceedings unless and until it makes the determination that access to counsel or further process is warranted. (Ibid., slip op. 2-3).Hamdi’s father filed a petition for a writ of habeas corpus[32] under 28 U.S.C. § 2241[33] in the Eastern District of Virginia. He argued that the detention of his son violated the 5th and 14th Amendments to the U.S.Constitution because he was being held indefinitely without charges or access to counsel. The government argued that indefinite detention was procedurally legitimate against enemy combatants during wartime. The district court ordered that counsel be given access to Hamdi. On appeal, a Fourth Circuit Court of Appeals panel reversed, finding that the district court had failed to extend appropriate deference to the security and intelligence interests of the Government in wartime. It remanded to the district court to conduct a “deferential inquiry into Hamdi’s status.” (Slip op. at 4). If it determined that Mandi was an enemy combatant, the 4th Circuit opined, then the government’s detention would be deemed lawful.On remand and after consideration of the so-called Mobbs Declaration (a statement from a Special Advisor to the Under Secretary of Defense for Policy, the 4th Circuit eventually affirmed a dismissal of the habeas corpus petition (Slip op. at 8).
We will not spend time on the first issue considered by the Supreme Court. That issue, whether the President has the authority to detain citizens who qualify as enemy combatants. (slip op. 8-17). A majority of the Court determined that the Executive had such authority, though the reasons supporting that authority remain contested. Much of it relies on interpretation of prior case law and the principles that can be extracted (and applied) therefrom. For our purposes, it suffices to know that citizens maybe held as enemy combatants. Justice Scalia’s vigorous dissent is worth reading as an insight to the ambiguities in judicial interpretation of prior cases, the process of extraction of principles therefrom and the application of those highly contextualized principles to the dispute before the court.
For purposes of considering the application of process based Rule of Law principles within the American constitutional law framework, the discussion that follows is more relevant (slip op. Part III).Hamdi argues that he is owed a meaningful and timely hearing and that extra-judicial detention [that] begins and ends with the submission of an affidavit based on third-hand hearsay does not comport with the Fifth and Fourteenth Amendments. Brief for Petitioners 16. The Government counters that any more process than was provided below would be both unworkable and constitutionally intolerable. Brief for Respondents 46. (slip op. 17).The opinion starts from a set of general principles of process rights in the United States respecting writs of habeas corpus. First, the writ remains available to every individual within the United States. Its suspension requires Congressional action, which has only rarely been used. And its core objective is to serve as a “critical check on the Executive, ensuring that it does not detain individuals except in accordance with law.” (slip op.18). Because the writ has not been suspended, Hamdi could property petition for a writ of habeas corpus. (Ibid).
The writ of habeas corpus embodies not merely the right to seek to challenge deprivations of individual liberty before a court but also “provide a skeletal outline of the procedures to be afforded a petitioner in federal habeas corpus review.” (Ibid). This includes the right to deny the facts on which a deprivation was based and to take evidence by deposition, affidavit or interrogatories. (Ibid). Hamdi, then, would appear to have the right to present and rebut facts and courts retain a power to vary the ways in which this is accomplished. The Government, however, argued that even if this is the case, that the presentation of the Mobbs Declaration completed the requirement of factual development. In effect, the government affidavit, the government asserted, was all the process that Hamdi was due under both the habeas corpus statute and the due process provisions of the federal constitution. The government advanced two reasons to support this position, the first easily rejected by the Supreme Court, the second requiring more complex analysis.
The government first asserted that there was no factual issue subject to review. The Court rejected this assertion for a number of reasons. First, they were unconvinced that the circumstances surrounding Hamdi’s seizure were undisputed, especially since Hamdi had not been permitted to dispute them. Second, under the definition of enemy combatant adopted by the plurality, it is not clear that sufficient facts had been alleged to support the detention. “An assertion that one resided in a country in which combat operations are taking place is not a concession that one was ‘captured in a zone of active combat operations in a foreign theater of war.’” (Ibid slip op, 19).
The Government’s second argument merited more careful analysis. The Government asserted the factual exploration was unwarranted because its interests in preserving the security of the United States in a theater of war could not be overcome an individual’s habeas corpus rights. (Ibid., 20).At most, the Government argues, courts should review its determination that a citizen is an enemy combatant under a very deferential ‘some evidence’ standard. . . . Under this review, a court would assume the accuracy of the Government’s articulated basis for Hamdi’s detention, as set forth in the Mobbs Declaration, and assess only whether that articulated basis was a legitimate one. (Ibid., 20).
Hamdi, on the other hand, argued that his liberty interest, that is his interest in avoiding arbitrary detention by the Executive, is sufficiently strong enough to justify recourse to “some proceeding before a neutral tribunal to determine whether the Executive’s asserted justifications for that detention have basis in fact and warrant in law.” (Ibid., 21). The Court agreed that both positions had merit. “And both emphasize the tension that often exists between the autonomy that the Government asserts is necessary in order to pursue effectively a particular goal and the process that a citizen contends he is due before he is deprived of a constitutional right.” (Ibid).
The Court, then, suggested that where strong interests conflicted , basic procedural rights could be protected and the conflict resolved only by balancing the interests of each and fashioning the structure of process that ensure the harmonization of those interests to the extent possible. The balancing standard is articulated in Mathews v. Eldridge, 424 U. S. 319 (1976).Mathews dictates that the process due in any given instance is determined by weighing ‘the private interest that will be affected by the official action’ against the Government’s asserted interest, ‘including the function involved’ and the burdens the Government would face in providing greater process. 424 U. S., at 335. The Mathews calculus then contemplates a judicious balancing of these concerns, through an analysis of ‘the risk of an erroneous deprivation’ of the private interest if the process were reduced and the ‘probable value, if any, of additional or substitute safeguards.’The Court first weighed Hamdi’s liberty interest. (Ibid., slip op. 22-24). This liberty interest is described as the elemental of liberty interests, that of being free from physical detention from one’s own government. If liberty is the norm in American society, detention without trial must be understood as a carefully limited exception. (Ibid., 22). This liberty interest is not offset, according to the Court, by the “circumstances of war or the accusation of treasonous behavior” (Ibid., 23) especially where the Court must weigh the risk of erroneous deprivation. This risk of erroneous deprivation is heightened under a circumstance where there is no opportunity to rebut the government’s assertions.Moreover, as critical as the Government’s interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat.(Ibid., 23).The nature of the accusation cannot affect the balancing. And the Court reaffirmed “the fundamental nature of a citizen’s right to be free from involuntary confinement by his own government without due process of law, and we weigh the opposing governmental interests against the curtailment of liberty that such confinement entails.” (Ibid., 24).
The Court then weighed the government’s interest. (Ibid., 24-25). The Court reaffirmed as well the weight of the government’s interest in protecting the security of the United States and its citizens in time of war. “Without doubt, our Constitution recognizes that core strategic matters of war making belong in the hands of those who are best positioned and most politically accountable for making them.” (Ibid., 24).
But what balance? The Court essentially sought to protect both Hamdi’s interest in liberty and the government’s interest in security. First, the plurality held that “a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decision maker.” (Ibid., 26). But the Plurality also was sensitive to the government’s interests. Thus the “exigencies of the circumstances may demand that, aside from these core elements, enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict.” (Ibid., 27). First, hearsay[34] could be accepted as the most reliable evidence. Moreover, the tribunal may permit a presumption in favor of the government’s evidence as long as Hamdi is provided with a fair opportunity for rebuttal. (Ibid).A burden-shifting scheme of this sort would meet the goal of ensuring that the errant tourist, embedded journalist, or local aid worker has a chance to prove military error while giving due regard to the Executive once it has put forth meaningful support for its conclusion that the detainee is in fact an enemy combatant. (Ibid).Those deviations from the usual structure of judicial practice may thus preserve the government’s interests while ensuring, to the satisfaction of the plurality, that the core protections of due process for Hamdi―notice and an opportunity to be heard before neutral and detached judge at a meaningful time and in a meaningful manner.In sum, while the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting, the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen’s core rights to challenge meaningfully the Government’s case and to be heard by an impartial adjudicator. (Ibid., 28-29).Though the details of the decision remain contested―note that the opinion was able to garner the support of less than a majority of the members of the Supreme Court―it remains a useful exposition of the basic ideas and arguments that frame the process elements of rule of law in the United States. At the apex of procedural rule of law in the United is the premise that no deprivation of life, liberty or property by the State or its agents can be undertaken without the protection of a minimal set of process protections. That is, the interests of the state can never be sufficiently strong to obliterate completely the right of an individual to process protections before she is deprived of any interest in her liberty, life or property. On the other hand, the individual is not entitled to the full range of process protections that could be made available by the state―a trial on the merits in a federal or state court subject to the rules of evidence and procedure developed therefor. That is the essence of Matthews as applied in Hamdi; the state cannot deprive an individual of the opportunity for meaningful notice and a meaningful opportunity to be heard before it deprives the individual of interest in life, liberty or property. However, the form and quality of the meaning opportunity for notice and hearing will depend on the circumstances, and the circumstances will be highly dependent on a judicial weighing of the relative interests of the state (public policy and objectives) and the individual (erroneous deprivations).
Critical to that analysis are the premises that procedural rights, even constitutionally grounded procedural rights are not absolute. The rights must be understood in context and may be applied differently depending on the weight of alternative rights against which it is deployed. Though Hamdi raises the question in the context of war, the same analysis applies in any number of other context―e.g., procedures required for student suspensions from public schools. The role of courts are central―they play a mediating role between the rights of the state and those of individuals. That mediating role permits the development of contextual applications of procedural rights in ways that preserve the basic principles of process rule of law in a flexible way that tends to satisfy the parties sufficiently that systemic integrity is preserved. The government may be bound by its own law and must conform to legality, but that legality is constrained by principles of higher law that may be applied against the state.IV. ProblemAn introduction to Fundamental Rights as Constraints on State Power in the United States. In Chapter 8 students were introduced to the problem of fundamental rights as an ordering principle of the U.S. legal system. The debate around the necessity for a “Bill of Rights”—a specification of those areas where state action was prohibited or constrained, was explored form the perspective f what it suggested about the relationship between law and the state. It was meant to suggest the ways in which law is treated both as autonomous of the state—and in some respects beyond the power of the state to interfere with such law—and as linked to the government of the state as the representative of the people as sovereign with ultimate authority to establish the rules by which society is governed. In this chapter 9 and 10, we considered the substantive effect of the premises that followed from the determination that law in the United States was in part a reflection of values that could not be interfered with by the state and in part a reflection of the popular will manifested through government legislation. Those consequences produced both a systemic approach to legal coherence grounded in hierarchy and established the importance of popular sovereignty at the nation’s frontiers.In this chapter we considered the underlying principle that holds all of these premises together—the concept of the rule of law. We noted that rule of law can embrace a significant political and ideological agenda. But in the United States, and for its effect on the legal system, rule of law tends to focus on a more precisely defined area—the protection of individuals in their rights against arbitrary discrimination against individuals or arbitrary interference with an individual without legally sufficient purpose. Both of those sets of rights against state interference with individual actions, activities, relationships, etc., arise through (not necessarily from) two provisions of the U.S. Constitution.Amendment VNo person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.Amendment XIVSection 1.All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.Generally the protection against state interference with rights is grounded in principles of equal protection when the purported interference denies a right to some but not others on the basis on some set of categorical distinctions. Where the state interference affects everyone, then the courts tend to apply an analysis grounded in due process.Let’s consider the use of due process as a constraint on state power. First, “[i] n their procedural aspect, the Due Process Clauses are understood first of all to require that when the courts or the executive act to deprive anyone of life, liberty, or property, they do so in accordance with established law. Judges and executive officers may not simply make up some method of proceeding and sentence someone to prison on that basis. This requirement that deprivation follow the rule of law is so fundamental that it is often forgotten, but there is good reason to believe that some version of it is the historical root meaning of due process.[35] The Fifth andFourteenth Amendment provision speaks positively about the power of the state to deprive any person of life, liberty or property, once the requisite minimum formalities have been observed. It might be possible to argue that the provision permits variance in the minimum process necessary, depending on the importance of the deprivation; and we have built a huge jurisprudence on this notion. It requires resort to extra-constitutional principles of limitations of state power to derive from the Due Process Clause a notion that certain classes of deprivation may never (or hardly ever) be effected by the state irrespective of the amount of procedural due process provided.[36]Generally, the doctrines that constitute substantive due process is grounded in a four part standard. First, a fundamental right must be identified (either within the Constitution, or form natural law or the traditions and customs of the people). Second there must be a determination of infringement and that the infringement is more than immaterial. Third, there is an assessment of the state’s justification for the infringement or interference with the fundamental right, and lastly there is balancing of the state’s interests in interference with the individual’s interest in here rights that included an assessment of proportionality—the relationship of the means used to the objectives of the interference.For interference with fundamental rights, the courts have adopted a strict scrutiny test, one that is generally quite difficult for a state to overcome. Under this standard the interference will be permitted if the court determines that it is justified by a compelling interest narrowly tailored to meet the objective giving rise to that interest. For all other interference with rights, the courts apply less stringent standards of review—either rational basis, or a heightened form of rational basis standard. Under this standard the court will permit the interference if it can discern a rational basis for the interference (whether to not that basis was the basis for the interference).This framework reflects the embrace of dual conceptions of the relationship between law and government that is the basis of the U.S. legal system. Fundamental rights exist autonomously of the state, indeed they are understood as existing prior in time and beyond the organizing rationale of the state. At the same time those fundamental rights may be given effect as a matter of law only if they can be understood as inherent in the constitutional framework itself—its text and structural objectives. The tension illustrated here is evidenced by the political split among the U.S. population. On one side are those who, favoring an state based approach, support the position that only rights identified in the constitution can be understood as fundamental. On the other side are those who, favoring an autonomy of law approach, support the position that such fundamental rights might be discerned in the customs and traditions of the people, the intent of the constitution’s framers, or natural law. In either case, both positions rest fundamentally on the principle that the state is organized to protect against the arbitrary use of power or the use of law and the state to impose tyranny on society or any of its parts.Problem: For the case that follows, Washington v. Glucksberg, 521 U.S. 702 (1997), describe the ways in which the majority opinion and concurrence differ with respect to the determination of (1) the sources and existence of a fundamental right, (2) the interference with that right, (3) the state’s justification for interference, and (4) the extent that the interference was proportionate to the objective. Consider as well how this exercise is related to the “thick” or “thin” notions of rule of law discussed earlier in the chapter. Note as well Justice Souter’s reference to the importance of common law methodology as an important element of the construction of fundamental rights. Does the majority agree?Washington v. Glucksberg521 U.S. 702 (1997)(footnotes omitted or renumbered)CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.The question presented in this case is whether Washington's prohibition against "caus[ing]" or "aid[ing]" a suicide offends the Fourteenth Amendment to the United States Constitution. We hold that it does not.* * *IWe begin, as we do in all due process cases, by examining our Nation's history, legal traditions, and practices. See, e. g., Casey, supra, at 849-850; Cruzan, supra, at 269-279; Moore v. East Cleveland, 431 U. S. 494, 503 (1977) (plurality opinion) (noting importance of "careful 'respect for the teachings of history' "). In almost every State-indeed, in almost every western democracy-it is a crime to assist a suicide.8 The States' assisted-suicide bans are not innovations. Rather, they are longstanding expressions of the States' commitment to the protection and preservation of all human life. Cruzan, supra, at 280 ("[T]he States-indeed, all civilized nations-demonstrate their commitment to life by treating homicide as a serious crime. Moreover, the majority of States in this country have laws imposing criminal penalties on one who assists another to commit suicide"); see Stanford v. Kentucky, 492 U. S. 361, 373 (1989) ("[T]he primary and most reliable indication of [a national] consensus is ... the pattern of enacted laws"). Indeed, opposition to and condemnation of suicide-and, therefore, of assisting suicide-are consistent and enduring themes of our philosophical, legal, and cultural heritages. See generally Marzen 17-56; New York State Task Force on Life and the Law, When Death is Sought: Assisted Suicide and Euthanasia in the Medical Context 77-82 (May 1994) (hereinafter New York Task Force).More specifically, for over 700 years, the Anglo-American common-law tradition has punished or otherwise disapproved of both suicide and assisting suicide. Cruzan, 497 U. S., at 294-295 (SCALIA, J., concurring). In the 13th century, Henry de Bracton, one of the first legal-treatise writers, observed that "[j]ust as a man may commit felony by slaying another so may he do so by slaying himself." 2 Bracton on Laws and Customs of England 423 (f. 150) (G. Woodbine ed., S. Thorne transl., 1968). * * * Thus, "[t]he principle that suicide of a sane person, for whatever reason, was a punishable felony was ... introduced into English common law."[37] Centuries later, Sir William Blackstone, whose Commentaries on the Laws of England not only provided a definitive summary of the common law but was also a primary legal authority for 18th- and 19th-century American lawyers, referred to suicide as "self-murder" and "the pretended heroism, but real cowardice, of the Stoic philosophers, who destroyed themselves to avoid those ills which they had not the fortitude to endure .... " 4 W. Blackstone, Commentaries 189. Blackstone emphasized that "the law has ... ranked [suicide] among the highest crimes," ibid., although, anticipating later developments, he conceded that the harsh and shameful punishments imposed for suicide "borde[r] a little upon severity." Id., at 190.For the most part, the early American Colonies adopted the common-law approach. For example, the legislators of the Providence Plantations, which would later become Rhode Island, declared, in 1647, that "[s]elf-murder is by all agreed to be the most unnatural, and it is by this present Assembly declared, to be that, wherein he that doth it, kills himself out of a premeditated hatred against his own life or other humor: ... his goods and chattels are the king's custom, but not his debts nor lands; but in case he be an infant, a lunatic, mad or distracted man, he forfeits nothing." The Earliest Acts and Laws of the Colony of Rhode Island and Providence Plantations 1647-1719, p. 19 (J. Cushing ed. 1977). Virginia also required ignominious burial for suicides, and their estates were forfeit to the Crown. A. Scott, Criminal Law in Colonial Virginia 108, and n. 93, 198, and n. 15 (1930).Over time, however, the American Colonies abolished these harsh common-law penalties. William Penn abandoned the criminal-forfeiture sanction in Pennsylvania in 1701, and the other Colonies (and later, the other States) eventually followed this example. Cruzan, supra, at 294 (SCALIA, J., concurring). Zephaniah Swift, who would later become Chief Justice of Connecticut, wrote in 1796:"There can be no act more contemptible, than to attempt to punish an offender for a crime, by exercising a mean act of revenge upon lifeless clay, that is insensible of the punishment. There can be no greater cruelty, than the inflicting [of] a punishment, as the forfeiture of goods, which must fall solely on the innocent offspring of the offender .... [Suicide] is so abhorrent to the feelings of mankind, and that strong love of life which is implanted in the human heart, that it cannot be so frequently committed, as to become dangerous to society. There can of course be no necessity of any punishment." 2 Z. Swift, A System of the Laws of the State of Connecticut 304 (1796).This statement makes it clear, however, that the movement away from the common law's harsh sanctions did not represent an acceptance of suicide; rather, as Chief Justice Swift observed, this change reflected the growing consensus that it was unfair to punish the suicide's family for his wrongdoing. Cruzan, supra, at 294 (SCALIA, J., concurring). Nonetheless, although States moved away from Blackstone's treatment of suicide, courts continued to condemn it as a grave public wrong. * * *That suicide remained a grievous, though nonfelonious, wrong is confirmed by the fact that colonial and early state legislatures and courts did not retreat from prohibiting assisting suicide. Swift, in his early 19th-century treatise on the laws of Connecticut, stated that "[i]f one counsels another to commit suicide, and the other by reason of the advice kills himself, the advisor is guilty of murder as principal." 2 Z. Swift, A Digest of the Laws of the State of Connecticut 270 (1823). * * *The earliest American statute explicitly to outlaw assisting suicide was enacted in New York in 1828, Act of Dec. 10, 1828, ch. 20, § 4, 1828 N. Y. Laws 19 (codified at 2 N. Y. Rev. Stat. pt. 4, ch. 1, Tit. 2, Art. 1, § 7, p. 661 (1829)), and many of the new States and Territories followed New York's example. * * *Though deeply rooted, the States' assisted-suicide bans have in recent years been reexamined and, generally, reaffirmed. Because of advances in medicine and technology, Americans today are increasingly likely to die in institutions, from chronic illnesses. President's Comm'n for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatment 16-18 (1983). * * * At the same time, however, voters and legislators continue for the most part to reaffirm their States' prohibitions on assisting suicide.* * *California voters rejected an assisted-suicide initiative similar to Washington's in 1993. On the other hand, in 1994, voters in Oregon enacted, also through ballot initiative, that State's "Death With Dignity Act," which legalized physician-assisted suicide for competent, terminally ill adults.14 Since the Oregon vote, many proposals to legalize assisted-suicide have been and continue to be introduced in the States' legislatures, but none has been enacted. And just last year, Iowa and Rhode Island joined the overwhelming majority of States explicitly prohibiting assisted suicide. * * * Also, on April 30, 1997, President Clinton signed the Federal Assisted Suicide Funding Restriction Act of 1997, which prohibits the use of federal funds in support of physician-assisted suicide. Pub. L. 105-12, 111 Stat. 23 (codified at 42 U. S. C. § 14401 et seq.).[38] * * *Thus, the States are currently engaged in serious, thoughtful examinations of physician-assisted suicide and other similar issues. For example, New York State's Task Force on Life and the Law-an ongoing, blue-ribbon commission composed of doctors, ethicists, lawyers, religious leaders, and interested laymen-was convened in 1984 and commissioned with "a broad mandate to recommend public policy on issues raised by medical advances." New York Task Force vii. Over the past decade, the Task Force has recommended laws relating to end-of-life decisions, surrogate pregnancy, and organ donation. Id., at 118-119. After studying physician-assisted suicide, however, the Task Force unanimously concluded that "[l]egalizing assisted suicide and euthanasia would pose profound risks to many individuals who are ill and vulnerable .... [T]he potential dangers of this dramatic change in public policy would outweigh any benefit that might be achieved." Id., at 120.Attitudes toward suicide itself have changed since Bracton, but our laws have consistently condemned, and continue to prohibit, assisting suicide. Despite changes in medical technology and notwithstanding an increased emphasis on the importance of end-of-life decisionmaking, we have not retreated from this prohibition. Against this backdrop of history, tradition, and practice, we now turn to respondents' constitutional claim.IIThe Due Process Clause guarantees more than fair process, and the "liberty" it protects includes more than the absence of physical restraint. Collins v. Harker Heights, 503 U. S. 115, 125 (1992) (Due Process Clause "protects individual liberty against 'certain government actions regardless of the fairness of the procedures used to implement them''') (quoting Daniels v. Williams, 474 U. S. 327, 331 (1986)). The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests. Reno v. Flores, 507 U. S. 292, 301-302 (1993); Casey, 505 U. S., at 851. In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the "liberty" specially protected by the Due Process Clause includes the rights to marry, Loving v. Virginia, 388 U. S. 1 (1967); to have children, Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942); to direct the education and upbringing of one's children, Meyer v. Nebraska, 262 U. S. 390 (1923); Pierce v. Society of Sisters, 268 U. S. 510 (1925); to marital privacy, Griswold v. Connecticut, 381 U. S. 479 (1965); to use contraception, ibid.; Eisenstadt v. Baird, 405 U. S. 438 (1972); to bodily integrity, Rochin v. California, 342 U. S. 165 (1952), and to abortion, Casey, supra. We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment. Cruzan, 497 U. S., at 278-279.But we "ha[ve] always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended." Collins, 503 U. S., at 125. By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore "exercise the utmost care whenever we are asked to break new ground in this field," ibid., lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court, Moore, 431 U. S., at 502 (plurality opinion).Our established method of substantive-due-process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, "deeply rooted in this Nation's history and tradition," id., at 503 (plurality opinion); Snyder v. Massachusetts, 291 U. S. 97, 105 (1934) ("so rooted in the traditions and conscience of our people as to be ranked as fundamental"), and "implicit in the concept of ordered liberty," such that "neither liberty nor justice would exist if they were sacrificed," Palko v. Connecticut, 302 U. S. 319, 325, 326 (1937). Second, we have required in substantive-due-process cases a "careful description" of the asserted fundamental liberty interest. Flores, supra, at 302; Collins, supra, at 125; Cruzan, supra, at 277-278. Our Nation's history, legal traditions, and practices thus provide the crucial "guideposts for responsible decisionmaking," Collins, supra, at 125, that direct and restrain our exposition of the Due Process Clause. As we stated recently in Flores, the Fourteenth Amendment "forbids the government to infringe ... 'fundamental' liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest." 507 U. S., at 302.JUSTICE SOUTER, relying on Justice Harlan's dissenting opinion in Poe v. Ullman, 367 U. S. 497 (1961), would largely abandon this restrained methodology, and instead ask "whether [Washington's] statute sets up one of those 'arbitrary impositions' or 'purposeless restraints' at odds with the Due Process Clause of the Fourteenth Amendment," post, at 752 (quoting Poe, supra, at 543 (Harlan, J., dissenting)).In our view, however, the development of this Court's substantive-due-process jurisprudence, described briefly supra, at 719-720, has been a process whereby the outlines of the "liberty" specially protected by the Fourteenth Amendment-never fully clarified, to be sure, and perhaps not capable of being fully clarified-have at least been carefully refined by concrete examples involving fundamental rights found to be deeply rooted in our legal tradition. This approach tends to rein in the subjective elements that are necessarily present in due process judicial review. In addition, by establishing a threshold requirement-that a challenged state action implicate a fundamental right-before requiring more than a reasonable relation to a legitimate state interest to justify the action, it avoids the need for complex balancing of competing interests in every case.* * *We now inquire whether this asserted right has any place in our Nation's traditions. Here, as discussed supra, at 710-719, we are confronted with a consistent and almost universal tradition that has long rejected the asserted right, and continues explicitly to reject it today, even for terminally ill, mentally competent adults. To hold for respondents, we would have to reverse centuries of legal doctrine and practice, and strike down the considered policy choice of almost every State. See Jackman v. Rosenbaum Co., 260 U. S. 22, 31 (1922) ("If a thing has been practised for two hundred years by common consent, it will need a strong case for the Fourteenth Amendment to affect it"); Flores, 507 U. S., at 303 ("The mere novelty of such a claim is reason enough to doubt that 'substantive due process' sustains it").Respondents contend, however, that the liberty interest they assert is consistent with this Court's substantive-due-process line of cases, if not with this Nation's history and practice. Pointing to Casey and Cruzan, respondents read our jurisprudence in this area as reflecting a general tradition of "self-sovereignty," Brief for Respondents 12, and as teaching that the "liberty" protected by the Due Process Clause includes "basic and intimate exercises of personal autonomy," id., at 10; see Casey, 505 U. S., at 847 * * *In Cruzan, we considered whether Nancy Beth Cruzan, who had been severely injured in an automobile accident and was in a persistive vegetative state, "ha[d] a right under the United States Constitution which would require the hospital to withdraw life-sustaining treatment" at her parents' request. 497 U. S., at 269. We began with the observation that "[a]t common law, even the touching of one person by another without consent and without legal justification was a battery." Ibid. We then discussed the related rule that "informed consent is generally required for medical treatment." Ibid. After reviewing a long line of relevant state cases, we concluded that "the common-law doctrine of informed consent is viewed as generally encompassing the right of a competent individual to refuse medical treatment." Id., at 277. Next, we reviewed our own cases on the subject, and stated that "[t]he principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions." Id., at 278. Therefore, "for purposes of [that] case, we assume[d] that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition." Id., at 279; see id., at 287 (O'CONNOR, J., concurring). We concluded that, notwithstanding this right, the Constitution permitted Missouri to require clear and convincing evidence of an incompetent patient's wishes concerning the withdrawal of life-sustaining treatment. Id., at 280-281.Respondents contend that in Cruzan we "acknowledged that competent, dying persons have the right to direct the removal of life-sustaining medical treatment and thus hasten death," Brief for Respondents 23, and that "the constitutional principle behind recognizing the patient's liberty to direct the withdrawal of artificial life support applies at least as strongly to the choice to hasten impending death by consuming lethal medication," id., at 26. Similarly, the Court of Appeals concluded that "Cruzan, by recognizing a liberty interest that includes the refusal of artificial provision of life-sustaining food and water, necessarily recognize[d] a liberty interest in hastening one's own death." 79 F. 3d, at 816.The right assumed in Cruzan, however, was not simply deduced from abstract concepts of personal autonomy. Given the common-law rule that forced medication was a battery, and the long legal tradition protecting the decision to refuse unwanted medical treatment, our assumption was entirely consistent with this Nation's history and constitutional traditions. The decision to commit suicide with the assistance of another may be just as personal and profound as the decision to refuse unwanted medical treatment, but it has never enjoyed similar legal protection. Indeed, the two acts are widely and reasonably regarded as quite distinct. See Quill v. Vacco, post, at 800-808. In Cruzan itself, we recognized that most States outlawed assisted suicide-and even more do today-and we certainly gave no intimation that the right to refuse unwanted medical treatment could be some-how transmuted into a right to assistance in committing suicide. 497 U. S., at 280.Respondents also rely on Casey. There, the Court's opinion concluded that "the essential holding of Roe v. Wade[, 410 U. S. 113 (1973),] should be retained and once again reaffirmed." 505 U. S., at 846. We held, first, that a woman has a right, before her fetus is viable, to an abortion "without undue interference from the State"; second, that States may restrict post-viability abortions, so long as exceptions are made to protect a woman's life and health; and third, that the State has legitimate interests throughout a pregnancy in protecting the health of the woman and the life of the unborn child. Ibid. In reaching this conclusion, the opinion discussed in some detail this Court's substantive-due-process tradition of interpreting the Due Process Clause to protect certain fundamental rights and "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education," and noted that many of those rights and liberties "involv[e] the most intimate and personal choices a person may make in a lifetime." Id., at 851.* * *The history of the law's treatment of assisted suicide in this country has been and continues to be one of the rejection of nearly all efforts to permit it. That being the case, our decisions lead us to conclude that the asserted "right" to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause. The Constitution also requires, however, that Washington's assistedsuicide ban be rationally related to legitimate government interests. See Heller v. Doe, 509 U. S. 312, 319-320 (1993); Flores, 507 U. S., at 305. This requirement is unquestionably met here. As the court below recognized, 79 F. 3d, at 816-817,[39] Washington's assisted-suicide ban implicates a number of state interests * * *.First, Washington has an "unqualified interest in the preservation of human life." Cruzan, 497 U. S., at 282. The State's prohibition on assisted suicide, like all homicide laws, both reflects and advances its commitment to this interest. See id., at 280; Model Penal Code § 210.5, Comment 5, at 100 ("[T]he interests in the sanctity of life that are represented by the criminal homicide laws are threatened by one who expresses a willingness to participate in taking the life of another"). This interest is symbolic and aspirational as well as practical:"While suicide is no longer prohibited or penalized, the ban against assisted suicide and euthanasia shores up the notion of limits in human relationships. It reflects the gravity with which we view the decision to take one's own life or the life of another, and our reluctance to encourage or promote these decisions." New York Task Force 131-132.* * *The State also has an interest in protecting the integrity and ethics of the medical profession. In contrast to the Court of Appeals' conclusion that "the integrity of the medical profession would [not] be threatened in any way by [physician-assisted suicide]," 79 F. 3d, at 827, the American Medical Association, like many other medical and physicians' groups, has concluded that "[p]hysician-assisted suicide is fundamentally incompatible with the physician's role as healer." American Medical Association, Code of Ethics § 2.211 (1994); see Council on Ethical and Judicial Affairs, Decisions Near the End of Life, 267 JAMA 2229,2233 (1992) * * *Next, the State has an interest in protecting vulnerable groups-including the poor, the elderly, and disabled persons-from abuse, neglect, and mistakes. The Court of Appeals dismissed the State's concern that disadvantaged persons might be pressured into physician-assisted suicide as "ludicrous on its face." 79 F. 3d, at 825. We have recognized, however, the real risk of subtle coercion and undue influence in end-of-life situations. Cruzan, 497 U. S., at 281. * * *The State's interest here goes beyond protecting the vulnerable from coercion; it extends to protecting disabled and terminally ill people from prejudice, negative and inaccurate stereotypes, and "societal indifference." 49 F. 3d, at 592. The State's assisted-suicide ban reflects and reinforces its policy that the lives of terminally ill, disabled, and elderly people must be no less valued than the lives of the young and healthy, and that a seriously disabled person's suicidal impulses should be interpreted and treated the same way as anyone else's. See New York Task Force 101-102; Physician-Assisted Suicide and Euthanasia in the Netherlands: A Report of Chairman Charles T. Canady, supra, at 9, 20 (discussing prejudice toward the disabled and the negative messages euthanasia and assisted suicide send to handicapped patients).Finally, the State may fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia. * * * If suicide is protected as a matter of constitutional right, it is argued, "every man and woman in the United States must enjoy it." Compassion in Dying, 49 F. 3d, at 591; see Kevorkian, 447 Mich., at 470, n. 41, 527 N. W. 2d, at 727-728, n. 41. The Court of Appeals' decision, and its expansive reasoning, provide ample support for the State's concerns. The court noted, for example, that the "decision of a duly appointed surrogate decision maker is for all legal purposes the decision of the patient himself," 79 F. 3d, at 832, n. 120; that "in some instances, the patient may be unable to self-administer the drugs and ... administration by the physician ... may be the only way the patient may be able to receive them," id., at 831; and that not only physicians, but also family members and loved ones, will inevitably participate in assisting suicide, id., at 838, n. 140. Thus, it turns out that what is couched as a limited right to "physician-assisted suicide" is likely, in effect, a much broader license, which could prove extremely difficult to police and contain. Washington's ban on assisting suicide prevents such erosion.This concern is further supported by evidence about the practice of euthanasia in the Netherlands. The Dutch government's own study revealed that in 1990, there were 2,300 cases of voluntary euthanasia (defined as "the deliberate termination of another's life at his request"), 400 cases of assisted suicide, and more than 1,000 cases of euthanasia without an explicit request. In addition to these latter 1,000 cases, the study found an additional 4,941 cases where physicians administered lethal morphine overdoses without the patients' explicit consent. Physician-Assisted Suicide and Euthanasia in the Netherlands: A Report of Chairman Charles T. Canady, supra, 12-13 (citing Dutch study). * * *We need not weigh exactingly the relative strengths of these various interests. They are unquestionably important and legitimate, and Washington's ban on assisted suicide is at least reasonably related to their promotion and protection. We therefore hold that Wash. Rev. Code § 9A.36.060(1) (1994) does not violate the Fourteenth Amendment, either on its face or "as applied to competent, terminally ill adults who wish to hasten their deaths by obtaining medication prescribed by their doctors." 79 F. 3d, at 838.***Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide. Our holding permits this debate to continue, as it should in a democratic society. The decision of the en banc Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered.SOUTER, J., concurring in the Judgment:* * *My understanding of unenumerated rights in the wake of the Poe dissent and subsequent cases avoids the absolutist failing of many older cases without embracing the opposite pole of equating reasonableness with past practice described at a very specific level. See Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S., at 847-849, 112 S.Ct., at 2804-2806. That understanding begins with a concept of “ordered liberty,” Poe, 367 U.S., at 549, 81 S.Ct., at 1780 (Harlan, J.); see also Griswold, 381 U.S., at 500, 85 S.Ct., at 1690, comprising a continuum of rights to be free from “arbitrary impositions and purposeless restraints,” Poe, 367 U.S., at 543, 81 S.Ct., at 1777 (Harlan, J., dissenting).“Due Process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court's decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could *766 serve as a substitute, in this area, for judgment and restraint.” Id., at 542, 81 S.Ct., at 1776.* * *After the Poe dissent, as before it, this enforceable concept of liberty would bar statutory impositions even at relatively trivial levels when governmental restraints are undeniably irrational as unsupported by any imaginable rationale. See, e.g., United States v. Carolene Products Co., 304 U.S. 144, 152, 58 S.Ct. 778, 783, 82 L.Ed. 1234 (1938) (economic legislation “not ... unconstitutional unless ... facts ... preclude the assumption that it rests upon some rational basis”); see also Poe, supra, at 545, 548, 81 S.Ct., at 1778, 1779-1780 (Harlan, J., dissenting) (referring to usual “presumption of constitutionality” and ordinary test “going merely to the plausibility of [a statute's] underlying rationale”). Such instances are suitably rare. The claims of arbitrariness that mark almost all instances of unenumerated substantive rights are those resting on “certain interests requir [ing] particularly careful scrutiny of the state needs asserted to justify their abridgment[,] [c]f. Skinner v. Oklahoma [ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) ]; * * *. In the face of an interest this powerful a State may not rest on threshold rationality or a presumption of constitutionality, but may prevail only on the ground of an interest sufficiently compelling to place within the realm of the reasonable a refusal to recognize the individual right asserted. Poe, supra, at 548, 81 S.Ct., at 1779-1780 (Harlan, J., dissenting) * * *This approach calls for a court to assess the relative “weights” or dignities of the contending interests, and to this extent the judicial method is familiar to the common law. Common-law method is subject, however, to two important constraints in the hands of a court engaged in substantive due process review. First, such a court is bound to confine the values that it recognizes to those truly deserving constitutional stature, either to those expressed in constitutional text, or those exemplified by “the traditions from which [the Nation] developed,” or revealed by contrast with “the traditions from which it broke.” Poe, 367 U.S., at 542, 81 S.Ct., at 1776 (Harlan, J., dissenting). “ ‘We may not draw on our merely personal and private notions and disregard the limits ... derived from considerations that are fused in the whole nature of our judicial process ... [,] considerations deeply rooted in reason and in the compelling traditions of the legal profession.’ ” Id., at 544-545, 81 S.Ct., at 1778 (quoting Rochin v. California, 342 U.S. 165, 170-171, 72 S.Ct. 205, 208-209, 96 L.Ed. 183 (1952)); * * *The second constraint, again, simply reflects the fact that constitutional review, not judicial lawmaking, is a court's business here. The weighing or valuing of contending interests in this sphere is only the first step, forming the basis for determining whether the statute in question falls inside or outside the zone of what is reasonable in the way it resolves the conflict between the interests of state and individual. See, e.g., Poe, supra, at 553, 81 S.Ct., at 1782 (Harlan, J., dissenting); * * * It is no justification for judicial intervention merely to identify a reasonable resolution of contending values that differs from the terms of the legislation under review. It is only when the legislation's justifying principle, critically valued, is so far from being commensurate with the individual interest as to be arbitrarily or pointlessly applied that the statute must give way. Only if this standard points against the statute can the individual claimant be said to have a constitutional right. See Cruzan v. Director, Mo. Dept. of Health, 497 U.S., at 279, 110 S.Ct., at 2851-2852 * * *The Poe dissent thus reminds us of the nature of review for reasonableness or arbitrariness and the limitations entailed by it. But the opinion cautions against the repetition of past error in another way as well, more by its example than by any particular statement of constitutional method: it reminds us that the process of substantive review by reasoned judgment, Poe, 367 U.S., at 542-544, 81 S.Ct., at 1776-1778, is one of close criticism going to the details of the opposing interests and to their relationships with the historically recognized principles that lend them weight or value.Although the Poe dissent disclaims the possibility of any general formula for due process analysis (beyond the basic analytic structure just described), see id., at 542, 544, 81 S.Ct., at 1776, 1777-1778, Justice Harlan of course assumed that adjudication under the Due Process Clauses is like any other instance of judgment dependent on common-law method, being more or less persuasive according to the usual canons of critical discourse. See also Casey, 505 U.S., at 849, 112 S.Ct., at 2805-2806 (“The inescapable fact is that adjudication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which by tradition courts always have exercised: reasoned judgment”). When identifying and assessing the competing interests of liberty and authority, for example, the breadth of expression that a litigant or a judge selects in stating the competing principles will have much to do with the outcome and may be dispositive. As in any process of rational argumentation, we recognize that when a generally accepted principle is challenged, the broader the attack the less likely it is to succeed. The principle's defenders will, indeed, often try to characterize any challenge as just such a broadside, perhaps by couching the defense as if a broadside attack had occurred. So the Court in Dred Scott treated prohibition of slavery in the Territories as nothing less than a general assault on the concept of property. See 19 How., at 449-452.Just as results in substantive due process cases are tied to the selections of statements of the competing interests, the acceptability of the results is a function of the good reasons for the selections made. It is here that the value of common-law method becomes apparent, for the usual thinking of the common law is suspicious of the all-or-nothing analysis that tends to produce legal petrification instead of an evolving boundary between the domains of old principles. Common-law method tends to pay respect instead to detail, seeking to understand old principles afresh by new examples and new counterexamples. The “tradition is a living thing,” Poe, 367 U.S., at 542, 81 S.Ct., at 1776 (Harlan, J., dissenting), albeit one that moves by moderate steps carefully taken. “The decision of an apparently novel claim must depend on grounds which follow closely on well-accepted principles and criteria. The new decision must take its place in relation to what went before and further [cut] a channel for what is to come.” Id., at 544, 81 S.Ct., at 1777 (Harlan, J., dissenting) (internal quotation marks omitted). Exact analysis and characterization of any due process claim are critical to the method and to the result.So, in Poe, Justice Harlan viewed it as essential to the plaintiffs' claimed right to use contraceptives that they sought to do so within the privacy of the marital bedroom. This detail in fact served two crucial and complementary functions, and provides a lesson for today. It rescued the individuals' claim from a breadth that would have threatened all state regulation of contraception or intimate relations; extramarital intimacy, no matter how privately practiced, was outside the scope of the right Justice Harlan would have recognized in that case. See id., at 552-553, 81 S.Ct., at 1781-1782. It was, moreover, this same restriction that allowed the interest to be valued as an aspect of a broader liberty to be free from all unreasonable intrusions into the privacy of the home and the family life within it, a liberty exemplified in constitutional provisions such as the Third and Fourth Amendments, in prior decisions of the Court involving unreasonable **2285 intrusions into the home and family life, and in the then-prevailing status of marriage as the sole lawful locus of intimate relations. Id., at 548, 551, 81 S.Ct., at 1779-1780, 1781.11 The individuals' interest was therefore at its peak in Poe, because it was supported by a principle that distinguished of its own force between areas in which government traditionally had regulated (sexual relations outside of marriage) and those in which it had not (private marital intimacies), and thus was broad enough to cover the claim at hand without being so broad as to be shot-through by exceptions.On the other side of the balance, the State's interest in Poe was not fairly characterized simply as preserving sexual morality, or doing so by regulating contraceptive devices. Just as some of the earlier cases went astray by speaking without nuance of individual interests in property or autonomy to contract for labor, so the State's asserted interest in Poe was not immune to distinctions turning (at least potentially) on the precise purpose being pursued and the collateral consequences of the means chosen, see id., at 547-548, 81 S.Ct., at 1779-1780. It was assumed that the State might legitimately enforce limits on the use of contraceptives through laws regulating divorce and annulment, or even through its tax policy, ibid., but not necessarily be justified in criminalizing the same practice in the marital bedroom, which would entail the consequence of authorizing state enquiry into the intimate relations of a married couple who chose to close their door, id., at 548-549, 81 S.Ct., at 1779-1780. See also Casey, 505 U.S., at 869, 112 S.Ct., at 2816 (strength of State's interest in potential life varies depending on precise context and character of regulation pursuing that interest).The same insistence on exactitude lies behind questions, in current terminology, about the proper level of generality at which to analyze claims and counterclaims, and the demand for fitness and proper tailoring of a restrictive statute is just another way of testing the legitimacy of the generality at which the government sets up its justification.12 We may therefore classify Justice Harlan's example of proper analysis in any of these ways: as applying concepts of normal critical reasoning, as pointing to the need to attend to the levels of generality at which countervailing interests are stated, or as examining the concrete application of principles for fitness with their own ostensible justifications. But whatever the categories in which we place the dissent's example, it stands in marked contrast to earlier cases whose reasoning was marked by comparatively less discrimination, and it points to the importance of evaluating the claims of the parties now before us with comparable detail. For here we are faced with an individual claim not to a right on the part of just anyone to help anyone else commit suicide under any circumstances, but to the right of a narrow class to help others also in a narrow class under a set of limited circumstances. And the claimants are met with the State's assertion, among others, that rights of such narrow scope cannot be recognized without jeopardy to individuals whom the State may concededly protect through its regulations.* * *In my judgment, the importance of the individual interest here, as within that class of “certain interests” demanding careful scrutiny of the State's contrary claim, see Poe, supra, at 543, 81 S.Ct., at 1776-1777, cannot be gainsaid. Whether that interest might in some circumstances, or at some time, be seen as “fundamental” to the degree entitled to prevail is not, however, a conclusion that I need draw here, for I am satisfied that the State's interests described in the following section are sufficiently serious to defeat the present claim that its law is arbitrary or purposeless.* * *
[1] http://www.unrol.org/article.aspx?article_id=3[2] http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4023&context=lcp[3] http://www.law.cornell.edu/supct/pdf/03-6696P.ZO[4] http://theredtelephone.files.wordpress.com/2011/03/due-process-and-rule-of-law-as-a-human-right.pdf[10] See United Nations Secretary General, Uniting our strengths: Enhancing United Nations support for the rule of law: Report of the Secretary-General A/61/636-S/2006/980 (14 Dec. 2006). Available http://unrol.org/files/2006%20Report.pdf.[11] April 2008, available http://www.unrol.org/files/RoL%20Guidance%20Note%20UN%20Approach%20FINAL.pdf.[12] See American Bar Association Rule of Law Initiatrive, Our Origins and Principles. Available http://www.americanbar.org/advocacy/rule_of_law/about/origin_principles.html.[13] Ibid.[14] Paul Kauper, The Supreme Court and the Rule fo Law, 59(4) Michigan Law Review 531 (1961).[15][15] Here the basis asserted for detention by the military is that Hamdi was carrying a weapon against American troops on a foreign battlefield; that is, that he was an enemy combatant. The legal category of enemy combatant has not been elaborated upon in great detail. The permissible bounds of the category will be defined by the lower courts as subsequent cases are presented to them.[16] Because we hold that Hamdi is constitutionally entitled to the process described above, we need not address at this time whether any treaty guarantees him similar access to a tribunal for a determination of his status.[17] http://lcbackerblog.blogspot.com/2006/04/president-bushs-second-inaugural.html[18] (“The Rule of Law, The Chinese Communist Party, and Ideological Campaigns: Sange Daibiao (the “Three Represents”), Socialist Rule of Law, and Modern Chinese Constitutionalism,” 16(1) Transnational Law & Contemporary Problems 29-102 (2006), pp. 34-36)[19] http://papers.ssrn.com/sol3/papers.cfm?abstract_id=410242[20] http://books.google.com/books/about/The_Asian_Renaissance.html?id=-p9lPwAACAAJ[21] http://books.google.com/books/about/The_Law_of_the_Constitution.html?id=_20NOnZgpNMC[22] http://books.google.com/books/about/Justice_as_Fairness.html?id=AjrXZIlbK1cC[23]http://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng.pdf[24] http://www.unrol.org/article.aspx?article_id=3[25] http://www.unrol.org/doc.aspx?n=UNcharter.pdf[26] http://www.unrol.org/doc.aspx?n=Universal%20Declaration%20of%20Human%20Rights.pdf[27] http://www.unrol.org/doc.aspx?n=2004%20report.pdf[28] http://www.unrol.org/doc.aspx?n=3dda1f104.pdf[29] http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4023&context=lcp[30] http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1272264[31] http://www.law.cornell.edu/supct/pdf/03-6696P.ZO[32] http://www.law.cornell.edu/wex/habeas_corpus[33] http://www.law.cornell.edu/uscode/text/28/2241[34] http://en.wikipedia.org/wiki/Hearsay[35] John Harrison, Substantive Due Process and the Constitutional Text, 83 Virginia. Law Review 493, 496 (1997).[36] Larry Catá Backer, Fairness as a General Principle of American Constitutional Law: Applying Extra-Constitutional Principles to Constitutional Cases in Hendricks and M.L.B., 33 Tulsa Law Journal 135, 149-150 (1997).[37] [Marzen, O'Dowd, Crone, & Balch, Suicide: A Constitutional Right?, 24 Duquesne L. Rev. 1, 148-242 (1985) (App.)] at 59.[38] Other countries are embroiled in similar debates: The Supreme Court of Canada recently rejected a claim that the Canadian Charter of Rights and Freedoms establishes a fundamental right to assisted suicide, Rodriguez v. British Columbia (Attorney General), 107 D. L. R. (4th) 342 (1993); the British House of Lords Select Committee on Medical Ethics refused to recommend any change in Great Britain's assisted-suicide prohibition, House of Lords, Session 1993-94 Report of the Select Committee on Medical Ethics, 12 Issues in Law & Med. 193, 202 (1996) ("We identify no circumstances in which assisted suicide should be permitted") * * *.
[39] The court identified and discussed six state interests: (1) preserving life; (2) preventing suicide; (3) avoiding the involvement of third parties and use of arbitrary, unfair, or undue influence; (4) protecting family members and loved ones; (5) protecting the integrity of the medical profession; and (6) avoiding future movement toward euthanasia and other abuses. 79 F. 3d, at 816-832.
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