Boumediene, "Global Constitutionalism," and "Human Rights Universalism": My Response to Professor Kent

By Steve Vladeck
Sunday, February 26, 2012, 10:36 AM

For those interested in the ongoing academic debate over the rationale and implications of the Supreme Court's decision in Boumediene, I have a new (short) piece in the Iowa Law Review Bulletin responding to Professor Andrew Kent's November 2011 article on "Boumediene, Munaf, and the Supreme Court's Misreading of the Insular Cases."

In short, Professor Kent's article argues that, to the extent the Court in Boumediene and Munaf embraced "global constitutionalism" and "human rights universalism," respectively, both decisions were based on fairly serious misreadings of the Insular Cases--the Supreme Court's early-20th-century jurisprudence on the applicability of various constitutional provisions in the insular territories. In my reply, I suggest that Professor Kent may well be right about Boumediene's misreading of the Insular Cases, but that the D.C. Circuit's post-Boumediene jurisprudence (which has not exactly embraced "global constitutionalism" or "human rights universalism") rather decisively refutes his assessment of the implications of that misreading... Professor Kent may well be right that the Insular Cases don't support the availability of habeas in either Boumediene or Munaf. But since none of the Insular Cases were squarely about the Suspension Clause, they're not inconsistent with the Court's 2008 decisions, either.

So why have the implications Professor Kent fears failed to materialize? Perhaps it's because, like me, Professor Kent believes that at least some of the D.C. Circuit's post-Boumediene jurisprudence has been unfaithful to that decision... As I conclude in my reply, though, I suspect the more likely explanation for this lacuna is "the difficulty so many contemporary students, scholars, and jurists have appreciating the distinction between habeas and more conventional constitutional rights," a difficulty that, in my view, continues to pervade this conversation.