{"id":9199,"date":"2016-03-04T17:15:19","date_gmt":"2016-03-04T22:15:19","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=9199"},"modified":"2016-09-05T15:08:39","modified_gmt":"2016-09-05T19:08:39","slug":"justice-scalia-in-the-fight-for-due-process","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/justice-scalia-in-the-fight-for-due-process\/","title":{"rendered":"Justice Scalia in the Fight for Due Process"},"content":{"rendered":"

With the passing of Justice Antonin Scalia, many people<\/a> have<\/a> commented<\/a> on his<\/a> legacy<\/a>. People have said he was a brilliant jurist<\/a>, others remembered how he influenced the Supreme Court \u201coccasionally for good, more often for ill<\/a>.\u201d As a liberal, minority woman, my views on his legacy easily align with one side. Many of Justice Scalia\u2019s opinions set equality back several decades\u2014further back than his three decades on the Court would suggest.<\/p>\n

As a law student, I read many scathing Scalia dissents, after all, they were written specifically for my demographic<\/a>\u2014law students. I did not agree with most of his opinions, and after a while, whenever I saw \u201cScalia, J.,\u201d I knew I probably would not like what was coming. I was, then, unpleasantly surprised when I read Justice Scalia\u2019s dissent in Hamdi v. Rumsfeld<\/em><\/a> that I agree with him. I had gotten so used to fighting his words that nodding felt odd.<\/p>\n

In Hamdi<\/em>, the U.S. military detained Hamdi, a U.S. citizen, in the United States as an \u201cenemy combatant<\/a>\u201d without a trial. The military believed Hamdi to be working with the Taliban, but did not bring a criminal suit against him. Hamdi\u2019s father filed a writ of habeas corpus, a petition asking Hamdi to be delivered to the court or released absent a trial. The majority opinion curtailed Hamdi\u2019s due process right by allowing him to be detained with a meager showing by the government of evidence that they had a reason to hold Hamdi. The tribunal before which Hamdi would be afforded a chance to rebut these allegations would not be a court of law, but a neutral decisionmaker. Hearsay evidence would be allowed. Hamdi would be presumed guilty until proven innocent. This was a subversion of our normal assumption of innocent until proven guilty because it effectively abrogated all due process rights to be found in court, guaranteed by the Constitution.<\/p>\n

I was very disturbed by the extent to which the Court would curtail an essential constitutional right\u2014due process\u2014in the face of vague national security concerns. As a champion of \u201cbig government\u201d and more government regulation, my visceral reaction to the extent to which government had grown in this case had been absolute disgust. Government was supposed to protect the little guys, yet here it was, detaining a U.S. citizen without due process, and making a sham of the very due process that many people had come to take for granted.<\/p>\n

The voice of reason came from an unexpected source: Justice Scalia. Arguing that the government could not hold citizens<\/em> unless the government prosecuted them, Justice Scalia would have granted habeas corpus. Justice Scalia would have required that the government either promptly bring charges against Hamdi in a court of law, or Congress would have to suspend habeas corpus. I could not believe that Justice Scalia was advocating for the little guy, but here he was, in black and white, writing that Hamdi deserved better than what the court had offered. Hamdi deserved better because the law required it.<\/p>\n

I did not agree with Justice Scalia on many of his views, especially with respect to social issues, but he was right in Hamdi<\/em>. Due process and its corollary, freedom from physical detention by one\u2019s own government without trial, was too important a right to abrogate. However controversial Justice Scalia\u2019s legacy may be, in Hamdi <\/em>he was a friend to civil rights.<\/p>\n","protected":false},"excerpt":{"rendered":"

With the passing of Justice Antonin Scalia, many people have commented on his legacy. People have said he was a 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