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A Guantánamo Bay Habeas Corpus Case on Constitution Day

Benjamin Wittes

Today, to celebrate Constitution Day, I wandered down to the D.C. Circuit Court of Appeals to listen to oral arguments in a Guantánamo Bay habeas corpus case. Okay, I admit, I didn’t exactly go to celebrate Constitution Day. I went because the court was hearing a case in which I had a particular interest. It just also happened to be Constitution Day.

Yet watching a D.C. Circuit argument turns out to be a particularly good way of observing a holiday that frankly lacks traditional ritual. There are very few places where the Constitution is more visibly alive than in an appellate court argument in a case freighted with powerful liberty interests on the one side and the president’s power to defend the nation and wage war on the other. In Congress, you have to wade chest-deep through political rhetoric, constituent service, ideological power plays, pork, and the other components of sausage making to get anywhere near the Constitution. It’s in there somewhere, to be sure, but it can be very hard to find. The National Archives has the actual Constitution, but it is the Constitution in preservatives, not the Constitution in action. An oral argument heard by highly intelligent judges of radically diverse politics who avoid political posturing entirely and bore in on important question, by contrast, is a living thing of immediate and accessible constitutional beauty.

The Constitution is today a battle zone. Perhaps it always has been. Look around at our political rhetoric and all political movements seem convinced that only they follow the Constitution, and that everyone else shreds it. From Tea Partiers to social conservative to abortion rights advocates to same-sex marriage proponents, everyone purports to speak for constitutional authenticity—and really at some level believes that they do—and yet they are often speaking for diametrically opposite propositions.

Here is my little moment of constitutional authenticity: less than an hour of legal arguments in a politically charged case, in which the naïve viewer would not know which of the two judges who spoke (the third barely asked any questions) was a committed conservative and which was a committed liberal. It took place when I left the room, as I entered it, having every confidence that both had sworn an oath to protect the Constitution and took it seriously and that they would go to conference and decide this case on its merits as they saw them and believing that politics notwithstanding, they stood an overwhelming likelihood of agreeing on its merits.

We fight over the law—as well we should. We fight over judges—which we should not. And we fight over the Constitution too. And I suppose that’s inevitable. But there’s also the Constitution that every day lives and breathes in our institutions. And happily, many of those institutions function far better than our fights acknowledge.

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