Jewish World Review Nov. 14, 2005/ 12 Mar-Chesvan,
Confirmation questions for Judge Samuel Alito
During the Civil War, President Abraham Lincoln suspended habeas
corpus, and after the fact, got Congress to agree. Among the
military arrests under this suspension was that of Lamdin Milligan.
The case came to the Supreme Court, and in a landmark decision in
1866, Justice David Davis declared the imprisonment was
unconstitutional because the civilian courts were still open. He
"The Constitution of the United States is a law for rulers and
people, equally in war and peace, and covers with the shield of its
protection all classes of men, at all times, and under all
circumstances. The Government, within the Constitution, has all the
powers granted to it, which are necessary to preserve its
Does Judge Alito agree, even in this war against terrorism that
the Constitution must be strictly constructed?
In Hamdi v. Rumsfeld (2004), the Supreme Court was concerned with
the case of an American citizen, Yaser Hamdi, held infinitely as an
"enemy combatant" without charges, and without due process of law.
In an opinion for a majority of the Court, Justice Sandra Day
O'Connor said, "We have long since made clear that a state of war is
not a blank check for the president when it comes to the rights of
But, in dissent, Justice Antonin Scalia, convinced that the majority
of the Court had not gone far enough, emphasized that this detainee
should be prosecuted or released. Scalia added, "Many think it
not only inevitable but entirely proper that liberty give way to
security in times of national crisis. ... Whatever the general
merits of the view that war silences law or modulates its voice,
that view has no place in the interpretation and application of a
Constitution designed precisely to confront war and, in a manner
that accords with democratic principles, to accommodate it."
Moreover, said Justice Scalia, "The very core of liberty secured by
our Anglo-American system of separated powers has been freedom from
indefinite imprisonment at the will of the Executive ... Hamdi's
imprisonment without criminal trial is no less unlawful than
Milligan's trial by military tribunal."
Does Judge Alito agree with Justice Scalia that the majority of the
Court did not meet the requirements of the Constitution in the case
of Yaser Hamdi?
In a 1943 landmark case, West Virginia Board of Education v.
Barnette, the children of Jehovah's Witnesses had been expelled from
the state's public schools because they refused to salute the flag
since their religion forbade them to bow to any "images." And if
their parents did not compel them to return to school, the parents
could be prosecuted for complicity in their children's delinquency.
Writing for the Supreme Court, Justice Robert Jackson was
responsible for a decision that has been regarded by some as a
definition of Americanism:
"If there is a fixed star in our constitutional constellation, it is
that no official, high or petty, can prescribe what shall be
orthodox politics, nationalism, religion, or any other matters, or
force citizens to confess by word or act their faith therein."
Does Judge Alito have any reservations about Justice Jackson's
constitutional reasons for sending the Jehovah's Witnesses children
back to school? He decided not on religious, but on First Amendment,
The 1943 Supreme Court overruled a 1940 Supreme Court decision also
on Jehovah's Witnesses children refusing to salute the flag. That
earlier court decision held that the children could constitutionally
be expelled from the public schools of Pennsylvania. The majority
decision was written by Justice Felix Frankfurter (who dissented in
the later West Virginia Board of Education ruling).
Frankfurter wrote in 1940 that the Pennsylvania flag-salute law
recognized that "the ultimate foundation of a free society is the
binding tie of cohesive sentiment. ... We live by symbols. The flag
is the symbol of national unity, transcending all internal
differences, however large, within the framework of the
Does Judge Alito believe that Justice Frankfurter's interpretation
of flag-salute law is on firmer constitutional ground than Justice
Finally, although the unanimous 1954 Supreme Court decision in Brown
v. Board of Education declared segregated public schools
unconstitutional, there are now more racially segregated public
schools in the nation than in 1954.
Subsequent Supreme Court decisions state that since segregation is
not a result of laws, but rather of residential patterns, there is
no constitutional cause of action.
Does Judge Alito agree that, in effect, Brown v. Board has largely
failed, and that the Supreme Court is powerless to do anything more
to desegregate the classrooms of America?
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