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The quotation of the day in Wednesday’s Times was taken from President Obama. “The idea that we would still maintain forever a group of individuals who have not been tried, that is contrary to who we are, contrary to our interests, and it needs to stop.” In the piece from which the quote was taken “Amid Hunger Strike, Obama Renews Push to Close Cuba Prison," (NYT, 4/30/13), the president is also quoted as saying “The notion that we’re going to keep 100 individuals in no man’s land in perpetuity…All of us should reflect on why exactly we are doing this? Why are we doing this?” There are a lot of talk about exceptions. Exercising the public safety exception was debated in terms of Mirandizing the surviving Tsarnaev brother in the Boston marathon bombing. But it’s precisely at times like these in which Constitutional guarantees, due process and adherence to the Geneva Conventions are truly tested. It’s nice to discuss the Bill of Rights in a law school classroom, but the power of the document is vindicated when it's exercised with respect to those for whom we would like exceptions to be made—those we fear and hate. Dismantling Guantanamo is undoubtedly a nightmare, but any country that is capable of landing on Mars, can certainly work out the logistics of the human rights debacle posed by the detainees.
Brown v. Board of Education of Topeka (l954) and Roe v. Wade (l973) were arguably the two most momentous decisions in Supreme Court history. If the Constitution and the Bill of Rights were direct products of the thinking of Enlightenment philosophers like John Locke. Then Roe v.Wade and Brown v. Board (which turned over Plessy v Ferguson, the famed “separate but equal” decision of l896) were not only reflections of two great libertarian movements—civil and women’s rights—but also the culmination of an evolutionary process as manifested in jurisprudence. But these two decisions were not only milestones of political, economic and legal thinking. They define an era that began with The New Deal, the Camelot of the Kennedy White House with its resident intellectuals like Arthur Schlesinger, Lyndon Johnson’s Great Society and the hope of the troubled Obama Years. When we think about the ideals that manifest themselves in the liberal wings of both the Democratic and Republic parties, Roe v Wade and Brown v. Board redefine the notion of Inalienable Rights. Freedom is the title of Jonathan Franzen’s bestselling novel and it would be hard to imagine this work of fiction and all the complexities of the world it describes without Roe v. Wade and Brown v. Board whose outcomes were declarations of new freedoms. Yet Conservative thinkers who criticize these two decisions are probably right. Both Roe v. Wade and Brown v. Board of Education extended the notion of human liberty beyond the original intentions of the writers of the Constitution. "What a piece of work is man! How noble in reason! how infinite in faculties!" exclaims Hamlet. How will the verdicts of our 21st Century Supreme Court define or redefine the Rights of Man?
