Now, wait a minute. Yoo is not saying merely that the proper constitutional interpretation yields strong executive powers in the area of war. He's saying that war is different, and courts should not dare to follow their ordinary — business-as-usual — approach to constitutional interpretation. That, in fact, is an argument for judicial willfulness, because it demands that the judges look at real-world conditions, have views about what is good and bad, and adjust the meaning of the Constitution accordingly.
Do not misread me. I'm not saying whether I think the majority or the dissenters in Boumediene did a better job of constitutional interpretation. I'm also not saying whether I think any of the Justices went beyond interpretation and picked the result they believed would do the most good. I'm not even talking about whether ideas about what is good belong in proper constitutional interpretation.
I'm only saying that Yoo contradicted himself.
Tuesday, June 17, 2008
...in his op-ed about the Supreme Court's Guantanamo decision in today's Wall Street Journal: