Habeas Without Rights

For almost six years, the habeas corpus petitions brought by foreign detainees held by the United States at Guantanamo Bay, Cuba, have stalled because the courts have struggled to answer a single question: whether the detainees possess enforceable rights. Although that question remains unresolved, the courts have uniformly concluded that the Guantanamo habeas claims, as well as the habeas claims brought by other accused enemy combatants, require a showing that the detainees possess cognizable rights violated by the detentions, most especially constitutional rights. This Article argues that the courts have been asking the wrong question and that habeas relief does not require the possession of rights. For most of the long history of habeas corpus, courts resolved habeas claims by determining whether the jailer had authority to impose detention, without undertaking any inquiry into the petitioner’s rights. Habeas did not address “rights” in the modern sense of a discrete group of personal trumps against governmental action, such as those protected by the Bill of Rights. Habeas did not protect rights in this sense for a simple reason: habeas predates rights. Rather than addressing rights, habeas cases traditionally were framed in terms of power: “The question is,” Justice Marshall asked in Ex parte Burford, “what authority has the jailor to detain him?” In the Guantanamo detainee cases, the traditional habeas inquiry would require the government to establish, as a matter of fact and law, that the detainees are enemy combatants

The Tea Party Movement and the Perils of Popular Originalism

The Tea Party movement presents something of a curiosity for constitutional theory because it combines originalist ideology and popular constitutionalist methods. Like minotaurs, werewolves, and other half-man, half-animal hybrids of myth and legend, the Tea Party\u27s hybrid of originalism and popular constitutionalism serves to expose the limitations of both sources upon which it draws. Although originalists assert that interpreting the Constitution according to its original meaning would take politics out of constitutional law, the Tea Party movement shows that originalism also provides a powerful political rhetoric. Moreover, while popular constitutionalists assert that democracy would be advanced by empowering the people to effectuate their constitutional understandings through ordinary politics, the Tea Party movement shows that when a popular movement advances a narrow, nationalist understanding of the Constitution, popular constitutionalism can also serve to restrict popular democrac

Aliens in the Garden

This Article examines environmental rhetoric and argues that a nationalist conception of nature has long distorted environmental policies. Environmental discourse frequently seeks to explain the natural world by reference to the world of nations, a phenomenon that can be characterized as the “nationalization of nature.” A contemporary example of the nationalization of nature is the rhetoric of “invasive species,” which depicts harmful foreign plants and animals in ways that bear an uncanny resemblance to the demonization of foreigners by opponents of immigration. A typical newspaper article about invasive species, bearing the headline “Eeeeek! The eels are coming!,” warned about an influx of “Asian swamp eels” and described them as “slimy, beady-eyed immigrants.” The nationalization of nature is a longstanding trope in American environmental discourse, as policies toward native and foreign plants and animals have long served as surrogates for addressing questions of national identity. Conceiving of environmental problems through the lens of nationalism, however, distorts environmental policies by projecting onto nature unrelated anxieties about national security and national identity