Let's say jhp *is* right. And let's say further that we view this as a bad thing -- we don't want the executive to possess a magic "enemy combatant" wand. There seem to me two responses:
1. Agitate for congress to pass some laws restricting executive branh discrection on how enemy combatants are defined and handled
2. Decide, because the result is unacceptible to us, it must perforce be the wrong legal ruling
Am I crazy for having a strong prediliction for option 1?
Very funny. There are still three branches of government, and if the Constitution is going to mean anything, and if we still believe in judicial review, then we should reasonably expect the court to declare unfettered executive branch power unconstitutional (even if that power has been "granted" by the congress).
To answer the broader point: No, I sure don't trust the congress and my fellow citizens to respect my rights during "war."
One final point: given my strong belief that what the executive wants to do is unconstitutional, I'm leary of having congress pass a law re-affirming the principle, because I can imagine someone arguing at some later date that, if it really were unconstitutional, congress wouldn't have needed to pass a law.
So, what exactly constitutes proof that what the executive is behaving unconstitutionally in a given case? How do we determine the degree of the legal "fetters" that shackle executive power? That's the beef, right?
Being a proceduralist, I think that judicial review should involve outcome-indifferent application of law. And I expect that this process can yield results I viwe as undesirable. For example, it might be the legally correct ruling that the executive does have a power I don't want it to have. Is Padilla's one of these cases? I'm no lawyer, I have no idea. But saying "oh no, the executive has an evil magic wand" does not seem to me a legal argument.
Side note: Bully for separation of powers, of course. But separation of powers doesn't help us to resolve these issues, unless the proper degree of separation just becomes a "I know it when I see it" standard. Do you agree?
"Proof" is the wrong standard for unconstitutionality, of course. We read the text, and those with sufficient relevant knowledge decide the issue. But it's still possible to have a layman's opinion on some of these issues, and in this case, it's this: if the President can lock up people at will, then a lot of what I've been told about my basic rights under the American constitution is wrong, and I want a very good explanation.
Hard cases make bad law, eh?
One interesting question (i should just get a damned law degree, so i would know these things) is the extent to which the ruling's unacceptability is legally relevant. I think someone like Dworkin takes an expansive (the polite word, by Leiter's lights) conception of what counts as a legal reason, and so would argue that this isn't a case where the courts look for the right result in a way that's contrary to the proceduralist ideal.
Right, and that's why Dworkin is thought by many to be making stuff up. The problem is, unacceptable for whom? As you know, I think denying gays the right to marry is unacceptable. Jerry Falwell believes the oposite. As a matter of cultural accident, graduates of elite law schools agree with me, not Falwell. Should that accident govern our law on gay marriage, as it does (now) on abortion, sodomy laws and (once, and likely again soon) capital punishment? I say: no.
Ogged, I take your point (although at times, I think you're nit-picking: for "proof" read "deciding evidence.") But I think that, yes, a lot of what we've all been told about the consitution is wrong -- or at least, would have been considered wrong for the first 200 years of the Republic. This actually came up in the latest (?) review of Miranda, where members of the court argued basically argued that since we now all conisder miranda warnings a part of "our rights" that was an argument for their being consitutionally required. (and yes, you should consider that a paraphrase). Now I think I'm guaranteed Miranda, because I watch a lot of cop shows; but I think the court should disabuse me if the cop shows don't reflect the law as correctly interpreted.
Also, I just saw that I wrote "degree of fetters" above. Now that's an ugly mixed metaphor!