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Separation of Powers - Conversation Starter 2 - Hamdi et al. v. Rumsfeld, Secretary of Defense, et al.

From Hamdi et al. v. Rumsfeld, Secretary of Defense, et al., No. 03-6696. Argued April 28, 2004--Decided June 28, 2004. Justice Souter, with whom Justice Ginsburg joins, concurring in part, dissenting in part, and concurring in the judgment.

...The defining character of American constitutional government is its constant tension between security and liberty, serving both by partial helpings of each. In a government of separated powers, deciding finally on what is a reasonable degree of guaranteed liberty whether in peace or war (or some condition in between) is not well entrusted to the Executive Branch of Government, whose particular responsibility is to maintain security. For reasons of inescapable human nature, the branch of the Government asked to counter a serious threat is not the branch on which to rest the Nation's entire reliance in striking the balance between the will to win and the cost in liberty on the way to victory; the responsibility for security will naturally amplify the claim that security legitimately raises. A reasonable balance is more likely to be reached on the judgment of a different branch, just as Madison said in remarking that "the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other...

Focus Questions

1. Justices Souter and Ginsburg suggest that branches of government other than the executive are better suited to deciding if security considerations require some restriction of liberties when national concern over security is high. Do you agree? Why or why not?

2. How would this framework apply in more tranquil times?

3. Former Supreme Court Justice Louis Brandeis once wrote that the founders believed "courage to be the secret to liberty" and "fear breeds repression." [Whitney v. California, 274 U.S. 357 (1927)]. Do you agree? How does the excerpt above from the Hamdi decision reflect or contradict Brandeis' opinion?

4. Might changing events, such as the threat of terrorism, call for an adjustment or reconsideration of the balance of power among the three branches? If so, how?