Wednesday, February 28, 2018

Free To Starve, Beat, Or Lash?

No one can claim, nor since the time of slavery has anyone to my knowledge successfully claimed, that persons held within the United States are totally without constitutional protection.  Whatever the fiction, would the Constitution leave the Government free to starve, beat, or lash those held within our boundaries?  If not, then, whatever the fiction, how can the Constitution authorize the Government to imprison arbitrarily those who, whatever we might pretend, are in reality right here in the United States?  The answer is that the Constitution does not authorize arbitrary detention.  And the reason that is so is simple: Freedom from arbitrary detention is as ancient and important a right as any found within the Constitution’s boundaries.

-- Supreme Court Justice Stephen Breyer, writing for the minority with Justice Ginsburg and Justice Sotomayor in dissent in Jennings v Rodriguez, in which the majority held that a noncitizen can be held indefinitely without appeal to the courts for a bail hearing, 27 February 2018

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