Each year, the United States Supreme Court ends its regular term one-week before the Nation=s birthday.  Because opinions in cases affecting the basic Constitutional law of this country usually come toward the end of the term, it is appropriate that this is so.  It gives thoughtful people the opportunity to reflect upon the Court=s jurisprudence in light of the principles set forth in the Declaration of Independence.

It is doubtless no exaggeration that several million words have been written on the three Constitutional law opinions announced this June.  Permit me to write a few hundred more.

The best advice I could give anyone with regard to these opinions is to actually read each of them.  Regardless of level of education, careful and studious readers would be far ahead of most college graduates in their knowledge and appreciation for a significant thread of American history. Too much uninformed invective spews forth from many who have not read the opinions, but think they know what is decided. (The full opinions are available without cost on the Court=s website: http://www.supremecourtus.gov/)

The cases I speak of are: the Guantánamo Detainee Case (Boumediene v.  Bush); the Child Rape Death Penalty Case (Kennedy v.  Louisiana); and the Right to Bear Arms Case (District of Columbia v. Heller).  Each of the cases illuminates individual rights guaranteed by the United States Constitution.  The specific results and holdings obviously will not please everybody.   Each case was a 5-4 decision, which, if nothing else, indicates a division on the Court in philosophical approach to the Constitution, which probably mirrors the country.  Looking at the opinions from a libertarian (as opposed to a Aconservative@ or Aliberal@) point of view, it appears there was an ideological split between the idea of the primacy of the individual versus the primacy of the collective. Although in each case there may have been more questions raised than answered as to the scope and contours of individual rights, the essence is that the individual seems to have come out ahead.

The issue in this Guantánamo detainee case was not whether the United States military forces could indefinitely detain suspected enemy combatants and terrorists, but whether these detainees may use the ancient habeas corpus principle to invoke the right to have a neutral and detached determination as to whether their detention was legal, and that some error as to whether they really belonged in detention had not been made.  This is the basic right, which has its origins in early English law, and is specifically mentioned in the unamended Constitution.  Essentially, habeas corpus restrains the government (or in some cases, private individuals, as in matters of child custody) from arbitrarily imprisoning or detaining an individual.  This case appears to have turned on the circumstance that our war on terror has been so protracted that indefinite detention without some sort of neutral determination as to the culpability and/or dangerousness of the detainees should not be tolerated, even if they are suspected terrorists.  The Constitution=s text specifically provides that the right of habeas corpus shall not be suspended except in the case of invasion or insurrection.  Obviously, a situation of insurrection does not occur here.  It could be argued, and I certainly would make the argument, that the September 11, 2001 attacks amounted to an invasion of the United States by a shadowy terrorist organization.  Nevertheless, the whole point of habeas corpus is to make the determination whether a specific individual should be held, and to automatically assume that anybody rounded up in the heat of battle in a foreign country halfway around the world is ipso facto a terrorist should be subject to challenge.  If there is no basis to the challenge, then the detainee can be held in custody.  Without making too much of a slippery slope argument, the fact remains that governments for over two millennia have used public safety as a pretext for removing political opponents from the public scene. I have no sympathy for the Islamic extremists, whose twisted world view calls for the destruction of America, and anyone else who they disapprove of.  I do, however, have a great deal of concern for some one who may have been caught up by being merely in the wrong place at the wrong time, however infrequently that might occur.  When an individual is deprived of his liberty, we must be sure we have the right guy.

The closest call for the majority in the three cases was the child rape death penalty case.  Here the Court held that the Louisiana law providing the death penalty for a convicted child rapist was invalid because it violated the prohibition of cruel and unusual punishment afforded by the Eighth Amendment.  What is cruel and unusual is not cast in stone, and has obviously changed over time.  Few Americans today would countenance hanging, drawing, and quartering, or physical mutilation B even for the most egregious of crimes.  The Court has used a benchmark test termed Aevolving standards of decency,@ and it applied that test here.  One can disagree with Justice Kennedy=s reasoning in the application of that standard, but it certainly is consistent with precedent, and he can hardly be accused of judicial activism in that regard.  One possible consequence, unintended or otherwise, is that it may have made the death penalty more secure against future challenge by giving the nod to the biblical lex talionis; i.e., an eye for an eye, a life for a life.  There are, however, some troubling aspects of this case.  First, the specter of bad facts making bad law might be present.  In the underlying case, apparently the child victim persisted in refusing to name the defendant as the perpetrator for some time after the rape, and then changed her story at least once.  While a jury heard the stories and made the decision as to whom to believe, it does not stretch the imagination that when faced with what is universally regarded as a heinous crime and an accused who is an unsavory character anyway, average citizen jurors might find themselves hard-pressed to believe the defendant.  A court, even the Supreme Court, might go a little further in a case where there is even a remote possibility an innocent person might be put to death.  Whether that is the case here is speculative, but should be kept in mind.  Second, the majority opinion left undisturbed the notion that crimes of treason, terrorism, and espionage could still be subject to the death penalty because these are offenses against the state, while offenses against an individual must result in death, in order to impose capital punishment consistent with the Constitution.  This seems to place the collective state interests above those of the individual.  The third troublesome aspect is the insult to the concept of federalism.  After all, Louisiana=s legislature made the determination that it was not cruel and unusual there.  Under evolving community standards of decency in that state, it might draw a line differently with regard to the use of capital punishment than other states. Of course, there are certain types of punishment which could not be tolerated anywhere in America.  Imposing the death penalty for driving while intoxicated is patently unreasonable, for example, but one could rationally conclude death for child rapists is proportionate to the crime.  These troubling aspects aside, the opinion is consistent with the Constitution and, if it errs, it errs on the side of protecting an individual against government power.  Those who are still dismayed with the decision can still take heart.  The best this convicted perpetrator can look forward to is spending the rest of his life alone in a tiny uncomfortable cell. He also could be housed among the general prison population, and, consequently, receive his cruel and usual punishment from the other inmates.

The issue in the District of Columbia Right to Bear Arms Case was the most clear-cut of the three.  The Constitutional provision, from a plain English standpoint, hardly needs interpretation.  One can even employ the hackneyed phrase, Awhat part of >right to bear arms= or >not be infringed= don=t you understand?@ in the same way Justice Hugo Black once famously said in Yogi Berra fashion, Ano law means no law,@ when opining on a law that would abridge free speech.  The problem with the Second Amendment has always been that troublesome introductory phrase pertaining to the well regulated militia.  To the minds of those who have a distinctive collectivist bent, it appeared to suggest that bearing arms by citizens is a right only in a military or collective defense context.  The concept of collective rights is wrongheaded and misplaced; all rights are individual rights.  Powers and duties may be delegated to collective bodies, but those collective bodies do not have rights.  A right is vested in a person because he is a human being, not because of membership in a group.