Niday,J.(2008) The war aginst terror as war against the constitution
This essay examines rhetorical dynamics in the 2004 US Supreme Court case Hamdi v. Rumsfeld. News reports suggested the court split 8-1 or 6-3. However, case texts show substantive disagreements created a 4-2-2-1 split in the court. [ Moreover, while the justices on the bench split into four camps rather than two, those camps were not defined along ideological lines. This essay argues that
pragmatism, the legal philosophy that held sway in the case, achieved practical expediency at the expense of judicial and constitutional coherency. In the end, the court found a majority through neither persuasion nor principled conviction but, rather, through reluctant compromise in order to achieve a partial resolution rather than none. In other words, argumentation failed and consensus followed from necessity rather than persuasion. The essay explores the question of whether constitutionally guaranteed civil liberties were violated in the ruling.
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