The Supreme Court has provided me with another case to discuss. It has decided to refuse to hear an appeal from 45 Guantanamo Bay prisoners that the government has an obligation to prove its case against them or let them go. The Supreme Court ruled that the prisoners must exhaust all other options before they may appeal to the Supreme Court.
I want to remind my readers that when I discuss a Supreme Court issue I do so as a mechanism for forcing on socially important moral questions. I do not write about whether a law is constitutional or unconstitutional. I write about whether a particular law is just or unjust. Having made that determination, I leave it to others to determine the correct interpretation of the law and whether that interpretation corresponds more closely to justice or injustice.
Justice is not ‘whatever the law says’. If it was, then the British taxation of the American colonies, slavery, and the Holocaust were all just, since they were all legal. Justice is “that which conforms to good law. To whatever degree a nation’s laws are good laws, to that degree a nation is just. To the degree that a nation has immoral laws – laws that deviate from what the law ought to say, to that degree a nation is unjust.
The question then becomes: Is America a just nation? Or is America an unjust nation?
Morality and the Law
In fact, like all nations, it is a little of both. No nation is perfect. However, let us look into the laws in play in this Supreme Court decision, and decide on which side justice would cast its vote, if justice was actually given a vote.
I argued in a previous post, “The Ten Amendments”, that the Bill of Rights represent moral principles thought to be true even if they were not written into the Constitution. The Bill of Rights did not create a right not to be subject to cruel and unusual punishment, a right against unreasonable searches and seizures, or a right to a speedy trial. Rather, these rights already existed in nature. With the Bill of Rights, the founding fathers said, “This government promises to institute just law by respecting natural human rights; and acknowledge that any laws passed that violate these rights are unjust laws.”
The question to ask here is, “Would it be wrong for the government to do X if the Constitution did not prohibit it?”
Assume that there was no First Amendment. Would it then be moral for the government to punish people who wrote things that the President did not like? Or is it the case that Presidents would still be morally obligated to protect even those who say harsh things about him from physical harm, including harms inflicted by the government?
The way a person would answer this question represents an important distinction. There are those who say that the law determines the difference between right and wrong – that whatever is legal is thereby permissible, and whatever is illegal is immoral. The first group would say that no moral objection can be raised against a President who arrests and tortures those who disagree with him, as long as the law did not prevent it. The second group holds that the President may not arrest and torture those who disagree with him, even when the law says he may do so.
This difference is easier to see if we look at the 13th Amendment. Before the 13th Amendment was passed, slavery was legal in the United States. But was it right?
Anybody who argues that morality is grounded in the law would have to conclude that anywhere slavery is legal, it is also moral – that nobody does anything wrong if they own a slave in a society where it is legally permissible to own slaves. Slavery does not become wrong unless and until slavery becomes illegal.
The alternative view is that that the concepts of just and unjust law appeal to moral standards outside of the law itself. Slavery was wrong before it became illegal, and nothing the government did to make slavery legal could ever make it right.
Anybody arguing for the abolition of slavery when slavery was legal was assuming that there is a moral standard for evaluating the law, and that the law must conform to that outside standard to be just. The Declaration of Independence states this philosophy where it says that humans have rights independent of government and the purpose of government is to protect and secure those rights. The American Revolution itself was fought under the assumption that laws can be held to an independent moral standard, that laws that fail a moral test ought to be abolished, and governments that refuse to abolish them lose their right to govern.
In spite of this relationship between law and morality, it is interesting to note that whenever the Bush Administration gets into trouble over secret prisons, warrantless searches and seizures, secret trials based on secret evidence, and the like, they always answer by saying, “We did nothing illegal.”
Well, the slave owners in the antebellum South did nothing illegal either.
The ultimate question is not whether these acts are illegal. The question is whether they are moral or just – which is a question that an appeal to law cannot answer. There are a great many things for which we will not be punished, which some loophole in the law or the direct result of bad law makes legal, that no good person would do. “I do not care if it is legal, it is still wrong.”
In an earlier post, “Bush’s New Moral Order,” I suggested that we can test the morality of Bush’s policies by imagining that Iran is appealing to those same policies with respect to the 15 British soldiers that it had captured. To apply this test we will have to imagine that it is now September, 2012. All 15 prisoners are still in Iran. They have appealed to the courts to put them on trial so that they can either be convicted or released. The government is stalling (while it insists on secret trials where the only thing the public gets to hear is that a secret group of Iranians agree that the defendants are guilty).
We must imagine the Iranian Supreme Court rendering a decision that Iranian law views this 5.5 year confinement, and the promise of additional years of confinement, before there is even a trial.
If this happens, would we say that the Iranian legal system is just or unjust? However we would judge them if their court system behaved in this way, we must also judge ourselves.
We should realize that the person demanding that his right to a fair trial be respected is not demanding to be set free. He is demanding that the government prove its case and, if it cannot prove its case, admit that they are doing harm to somebody that may well be an innocent person – a person who is no different than you or I hauled off the street.
“Prove that I deserve this,” is what the prisoner demands.
The criteria for a fair trial are then set. The government must be able to show that it has the evidence to convince a pool of reasonable people that its conclusions follow from their evidence.
This right to a fair and speedy trial is a moral right. This means that the government cannot make it permissible to inflict these harms by passing laws and making it legal. The government has no more power to do this than it has the power to make slavery right by making it legal, or to make any of the violations of the Bill of Rights right simply by appealing the amendment.
Now, if these rights are moral rights, then this means that it is wrong to do this to any human.
To say that slavery is wrong is not to say that no American may be enslaved, and that enslaving anybody else is permissible. If we say that enslaving others who are not Americans is morally permissible, then we are saying that slavery is not really wrong. Indeed, we are saying that enslaving Americans is not really wrong and nothing that Americans can object to on moral grounds – so long as we claim that we may enslave the citizens of other countries.
To say that a fair in speedy trial is a person’s right is not to say that no American can be denied a speedy trial, but against everybody else it is permissible. If we say that denying others a speedy trial is permissible, then we are saying that it is not really wrong to hold people indefinitely. If we say that this is not truly wrong, then it is not truly wrong to confine Americans indefinitely – it is nothing that Americans can object to on moral grounds – so long as we claim that we may deny the citizens of other countries a speedy trial.
That’s the way morality works.
Yet, clearly, the Bush Administration and its supporters and enforcers do not understand these simple moral concepts. Because of that, they continue to make the world worse than it would have otherwise been, by promoting policies that no just and moral person could support.