9/11 and the constitution

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(HOST) This week we mark both the fifth anniversary of September 11th and Constitution Day. Commentator Cheryl Hanna reflects on the impact one has had on the other.

(HANNA) This Sunday, just six days after September 11th, the nation will mark Constitution Day, for it was on September 17, 1787, that our founding document was signed.

Just last year, the Federal Government declared that on this day, or the week before, all schools which receive federal funds must sponsor some sort of program on the Constitution.

Whether this law is a wonderful way to encourage discussions about the constitution or is, itself, an unconstitutional and unfunded government mandate, is a discussion for another time.

For now, I think it’s important to reflect upon how well our Constitution has fared since the attacks of 9-11.

Before that day, in my Constitutional Law course, I spent little time discussing the President’s power during wartime. The cases were few and far between, and my students and I, both from generations born after the Vietnam War, could hardly imagine Japanese Interment camps or the President seizing the steel mills in the name of national security.

To be honest, the most vibrant class discussion focused on whether President Clinton really had committed an impeachable offense.

And then came Bush v. Gore, which, if anything, left my students on both sides of the political aisle with a sense of cynicism about the Supreme Court.

Today, everything we study seems connected to September 11th, and America’s struggle to preserve both our lives and our souls.

And I gotta say, the Constitution and the Court have fared far better than I might have initially predicted.

There have now been three cases dealing with the President’s power during the war on terrorism. In Hamdi v. Rusmfeld, the Court was asked whether an American Citizen, detained on American soil, could be held as an “enemy combatant” without any due process rights, as the President asserted. The answer, in a strongly worded decision, was no.

So too did the Court rule that detainees in Guantanamo Bay have the right to have their cases heard in federal court.

And finally, just this past summer, the Court rejected the President’s argument that military tribunals established without Congressional authorization are Constitutional.

Yet, these cases have been decided by increasingly slim margins, and it’s unclear what will happen with subsequent challenges, like the warrantless wiretapping cases, likely to make their way to the Court in the next year.

But so far, the Court’s willingness to preserve Constitutional values during these most stressful times has given many of my students renewed optimism that the Court is indeed above partisan politics.

And the idea that a poor Yemen citizen, detained on suspected terrorism charges, could challenge the President’s authority to establish military tribunals, resulting in the most important case about presidential power in generations, is precisely the kind of legal system these young, idealistic lawyers-to-be want to believe in.

Cheryl Hanna is a professor at Vermont Law School in South Royalton.

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