District of Columbia v. Heller, 554 U.S. ___ (2008) is a legal case in which the Supreme Court of the United States held that the Second Amendment to the United States Constitution protects an individual's right to possess a firearm for private use. It was the first Supreme Court case in United States history to address directly whether the right to keep and bear arms is a right of individuals or a collective right that applies only to state-regulated militias.
On June 26, 2008, the Supreme Court affirmed the Court of Appeals for the D.C. Circuit in Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007).[1] The Court of Appeals had struck down provisions of the Firearms Control Regulations Act of 1975 as unconstitutional, and determined that handguns are "Arms" that may not be banned by the District of Columbia (Washington, D.C.), also striking down the portion of the law that requires all firearms including rifles and shotguns be kept "unloaded and disassembled or bound by a trigger lock."
Wikipedia: http://en.wikipedia.org/wiki/District_of_Columbia_v._Heller
Americans 'can own guns for self defence' Published in: Legalbrief TodayDate: Fri 27 June 2008Category: LitigationIssue No: 2098
The US Supreme Court made its first major pronouncement on gun rights in US history yesterday, ruling that Americans have a right to own guns for self defence and hunting. The Washington Post says the court's 5-4 ruling struck down the District of Columbia's 32-year-old ban on handguns - the strictest in the nation - as incompatible with gun rights under the Second Amendment. Dick Anthony Heller (66), an armed security guard, sued the District after it rejected his application to keep a handgun at his home for protection. The court had not conclusively interpreted the Second Amendment since its ratification in 1791. The amendment reads: 'A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.' Justice Antonin Scalia, writing for four colleagues, said the Constitution did not permit 'the absolute prohibition of handguns held and used for self-defence in the home'. (http://www.legalbrief.co.za/article.php?story=20080627080021793)
Justices Reject D.C. Ban On Handgun Ownership
5-4 Ruling Finds 1976 Law Incompatible With Second Amendment
Gallery
By Robert BarnesWashington Post Staff Writer Friday, June 27, 2008; Page A01
The Supreme Court struck down the District of Columbia's ban on handgun possession yesterday and decided for the first time in the nation's history that the Second Amendment guarantees an individual's right to own a gun for self-defense.
The court's landmark 5 to 4 decision split along ideological grounds and wiped away years of lower court decisions that had held that the intent of the amendment, ratified more than 200 years ago, was to tie the right of gun possession to militia service.
While the decision left for another time how the standards by which gun-control laws nationwide will be evaluated, it was decisive about the District's law, the strictest in the country. In addition to prohibiting ownership of handguns, the city also requires that shotguns and rifles be kept unloaded and disassembled or bound by a trigger lock.
"We hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense," Justice Antonin Scalia wrote. He was joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr.
The Second Amendment, Scalia said, "surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home."
The opinion, the last and perhaps most anticipated ruling of the court's current term, delivered a bold and unmistakable endorsement of the individual right to own guns. At the same time, it raised as many questions as it answered about the ability of government to restrict gun ownership to promote public safety, a point made in detailed rebuttals from the liberals on the court, both from the bench and in two lengthy dissents.
Justice Stephen G. Breyer said the decision "threatens to throw into doubt the constitutionality of gun laws throughout the United States," and he called that a "formidable and potentially dangerous" mission for the courts to undertake. He was joined by Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg.
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As if to underscore the point, D.C. officials, who expressed disappointment with the ruling, vowed to replace the now-voided gun ban with strict handgun regulations, raising the possibility of further litigation.
Robert Levy, a libertarian lawyer who had developed the strategy for challenging the D.C. law and recruited security guard Dick Heller and others as plaintiffs, said the court's ruling should be clear: "The District may not attempt to solve its crime problems by violating the rights of law-abiding citizens."
The Bush administration had asked the court to recognize the individual right, and Scalia's broad, history-filled opinion went further. But the administration wanted the case sent back to a lower court for a fuller hearing on whether the D.C. law violated such a right.
Still, President Bush seemed pleased with the result. "As a longstanding advocate of the rights of gun owners in America, I applaud the Supreme Court's historic decision today confirming what has always been clear in the Constitution: The Second Amendment protects an individual right to keep and bear firearms," he said in a statement.
The reaction from the presidential campaign trail was supportive, if a bit more so on one side than the other.
Sen. John McCain (Ariz.), the presumptive Republican nominee, called it a "landmark victory" for Second Amendment rights and criticized his rival's home town. "Today's ruling . . . makes clear that other municipalities like Chicago that have banned handguns have infringed on the constitutional rights of Americans," he said.
Sen. Barack Obama (Ill.), the Democrats' all-but-certain nominee, issued a statement saying that "I have always believed that the Second Amendment protects the right of individuals to bear arms, but I also identify with the need for crime-ravaged communities to save their children from the violence that plagues our streets through common-sense, effective safety measures."
It may not be surprising that both men would find something to like in the ruling, because Scalia concentrated on building a historical case for finding an individual right in the amendment's ambiguous 27 words. Setting standards for how courts and legislatures should decide the constitutional restrictions on gun control will evolve, he said.
"Since this case represents this court's first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field," Scalia wrote.
One practical outcome of that strategy is that it probably kept Kennedy, who seemed at oral argument to be supportive of the individual right but worried about standards, with the majority.
In 56 pages of the 64-page opinion, Scalia analyzed the historical and grammatical underpinnings of the amendment: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
Scalia drew on years of scholarly research to conclude that the amendment's opening clause about the need for a ready militia was only one of the reasons that the Framers recognized what he argued was a preexisting right to arms.
"Does the preface fit with an operative clause that creates an individual right to keep and bear arms?" Scalia wrote. "It fits perfectly."
Stevens rebutted Scalia in 46 pages of his own, and the two engaged in a line-by-line battle over the meaning of the amendment. "When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia," Stevens wrote, adding that it meant "no more than that."
Mark Tushnet, a Harvard law professor who recently wrote a book about the Second Amendment, said the debate "showed why lawyers shouldn't be historians," noting that Scalia and Stevens each wrote as though "there's only one way to view what happened in 1791."
Stevens and especially Scalia often made their points in caustic and dismissive language. Throughout his opinion, Scalia used terms such as "frivolous" and "absurdity" to describe his opponents' legal reasoning.
Stevens made his unhappiness known by reading parts of his dissent from the bench, and he pointedly recalled for his conservative colleagues Justice Felix Frankfurter, whom he called a "true judicial conservative."
The two also sparred over the court's last look at the Second Amendment, in the 1939 case United States v. Miller. Scalia dismissed it as a halfhearted examination that did not consider the amendment's historical origins, while Stevens said that "hundreds of judges have relied on" it to view the amendment's guarantee as related to militia service.
The U.S. Court of Appeals for the District of Columbia Circuit, whose decision the justices upheld yesterday in District of Columbia v. Heller, was the first to use the individual-right theory to strike a local gun-control law.
How other restrictions will fare under the court's new directives is unclear.
Scalia said the opinion should not be read to cast doubt on "longstanding prohibitions" on gun possession by "felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." He added that the list was not meant to be exhaustive.
He also said the court recognized limitations on the right to keep and carry arms, and he indicated that federal bans on weapons such as machine guns may not be threatened.
But the majority declined to set a level of scrutiny by which judges should evaluate the constitutionality of gun restrictions that governments may set. It rejected Breyer's proposal to ask whether the statute burdens the right out of proportion to the "salutary effects" upon government interests.
Breyer said the District's law would have met that burden.
But Scalia said one clear lesson from the decision is that the law went too far.
"The enshrinement of constitutional rights necessarily takes certain policy choices off the table," he wrote. "These include the absolute prohibition of handguns held and used for self-defense in the home."
http://www.washingtonpost.com/wp-dyn/content/article/2008/06/26/AR2008062600615.html?referrer=email&sid=ST2008062601441&pos=
2008年6月30日星期一
2008年6月15日星期日
关于英语学习
关于英语学习，我已经推荐了很多网站。我的经验是，贵在坚持！只有持之以恒地每天坚持下去，才会真的有所收获。
而且，在我看来，无论你们将来作何种选择，提高英语听说能力事实上等于培养了一门新技能。
以下我常用的一些网站：
听力资料：
1。http://www.eslpod.com/website/
http://www.voanews.com/specialenglish/index.cfm
http://www.listeningexpress.com/download/（空中美语）
当下来，多听，多跟着说。尤其是一些发音问题，一定要模仿。 至于写，我
写
2。http://www.livemocha.com/ 。其实，这个网站的句子也可以拿来练习发音。不过，我主要用它来，写一些东西，让后让nativespeaker帮助修改。很有帮助。
3。阅读
每天坚持读（read loudly）一两页英文文章。就此，可以到http://www.nytimes.com/pages/todayspaper/index.html 订一个每天标题，（只用输入电子邮件就可以了。）阅读时，注意他们的用词和一些固定表达。
而且，在我看来，无论你们将来作何种选择，提高英语听说能力事实上等于培养了一门新技能。
以下我常用的一些网站：
听力资料：
1。http://www.eslpod.com/website/
http://www.voanews.com/specialenglish/index.cfm
http://www.listeningexpress.com/download/（空中美语）
当下来，多听，多跟着说。尤其是一些发音问题，一定要模仿。 至于写，我
写
2。http://www.livemocha.com/ 。其实，这个网站的句子也可以拿来练习发音。不过，我主要用它来，写一些东西，让后让nativespeaker帮助修改。很有帮助。
3。阅读
每天坚持读（read loudly）一两页英文文章。就此，可以到http://www.nytimes.com/pages/todayspaper/index.html 订一个每天标题，（只用输入电子邮件就可以了。）阅读时，注意他们的用词和一些固定表达。
2008年6月12日星期四
Boumediene v. Bush
今天，美国最高法院就Guantanamo Bay, Cuba在押囚犯是否有权向美国联邦法院申请人身保护灵？是否受到美国宪法权利的保护？这两个重要问题以5-4的票数作出了一个非常重要的判例。
BOUMEDIENE et al. v. BUSH, PRESIDENT OF THE UNITED STATES, et al.
Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Souter, J., filed a concurring opinion, in which Ginsburg and Breyer, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Scalia, Thomas, and Alito, JJ., joined. Scalia, J., filed a dissenting opinion, in which Roberts, C. J., and Thomas and Alito, JJ., joined.
BOUMEDIENE et al. v. BUSH, PRESIDENT OF THE UNITED STATES, et al.
certiorari to the united states court of appeals for the district of columbia circuit No. 06–1195.
Argued December 5, 2007—Decided June 12, 2008*
In the Authorization for Use of Military Force (AUMF), Congress empowered the President “to use all necessary and appropriate force against those … he determines planned, authorized, committed, or aided the terrorist attacks … on September 11, 2001.” In Hamdi v. Rumsfeld, 542 U. S. 507, 518, 588–589, five Justices recognized that detaining individuals captured while fighting against the United States in Afghanistan for the duration of that conflict was a fundamental and accepted incident to war. Thereafter, the Defense Department established Combatant Status Review Tribunals (CSRTs) to determine whether individuals detained at the U. S. Naval Station at Guantanamo Bay, Cuba, were “enemy combatants.”
Petitioners are aliens detained at Guantanamo after being captured in Afghanistan or elsewhere abroad and designated enemy combatants by CSRTs. Denying membership in the al Qaeda terrorist network that carried out the September 11 attacks and the Taliban regime that supported al Qaeda, each petitioner sought a writ of habeas corpus in the District Court, which ordered the cases dismissed for lack of jurisdiction because Guantanamo is outside sovereign U. S. territory. The D. C. Circuit affirmed, but this Court reversed, holding that 28 U. S. C. §2241 extended statutory habeas jurisdiction to Guantanamo. See Rasul v. Bush, 542 U. S. 466, 473. Petitioners’ cases were then consolidated into two proceedings. In the first, the district judge granted the Government’s motion to dismiss, holding that the detainees had no rights that could be vindicated in a habeas action. In the second, the judge held that the detainees had due process rights.
While appeals were pending, Congress passed the Detainee Treatment Act of 2005 (DTA), §1005(e) of which amended 28 U. S. C. §2241 to provide that “no court, justice, or judge shall have jurisdiction to … consider … an application for … habeas corpus filed by or on behalf of an alien detained … at Guantanamo,” and gave the D. C. Court of Appeals “exclusive” jurisdiction to review CSRT decisions. In Hamdan v. Rumsfeld, 548 U. S. 557, 576–577, the Court held this provision inapplicable to cases (like petitioners’) pending when the DTA was enacted. Congress responded with the Military Commissions Act of 2006 (MCA), §7(a) of which amended §2241(e)(1) to deny jurisdiction with respect to habeas actions by detained aliens determined to be enemy combatants, while §2241(e)(2) denies jurisdiction as to “any other action against the United States … relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement” of a detained alien determined to be an enemy combatant. MCA §7(b) provides that the 2241(e) amendments “shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after [that] date … which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained … since September 11, 2001.”
The D. C. Court of Appeals concluded that MCA §7 must be read to strip from it, and all federal courts, jurisdiction to consider petitioners’ habeas applications; that petitioners are not entitled to habeas or the protections of the Suspension Clause, U. S. Const., Art. I, §9, cl. 2, which provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it”; and that it was therefore unnecessary to consider whether the DTA provided an adequate and effective substitute for habeas.
Held:
1. MCA §7 denies the federal courts jurisdiction to hear habeas actions, like the instant cases, that were pending at the time of its enactment. Section §7(b)’s effective date provision undoubtedly applies to habeas actions, which, by definition, “relate to … detention” within that section’s meaning. Petitioners argue to no avail that §7(b) does not apply to a §2241(e)(1) habeas action, but only to “any other action” under §2241(e)(2), because it largely repeats that section’s language. The phrase “other action” in §2241(e)(2) cannot be understood without referring back to §2241(e)(1), which explicitly mentions the “writ of habeas corpus.” Because the two paragraphs’ structure implies that habeas is a type of action “relating to any aspect of … detention,” etc., pending habeas actions are in the category of cases subject to the statute’s jurisdictional bar. This is confirmed by the MCA’s legislative history. Thus, if MCA §7 is valid, petitioners’ cases must be dismissed. Pp. 5–8.
2. Petitioners have the constitutional privilege of habeas corpus. They are not barred from seeking the writ or invoking the Suspension Clause’s protections because they have been designated as enemy combatants or because of their presence at Guantanamo. Pp. 8–41.
(a) A brief account of the writ’s history and origins shows that protection for the habeas privilege was one of the few safeguards of liberty specified in a Constitution that, at the outset, had no Bill of Rights; in the system the Framers conceived, the writ has a centrality that must inform proper interpretation of the Suspension Clause. That the Framers considered the writ a vital instrument for the protection of individual liberty is evident from the care taken in the Suspension Clause to specify the limited grounds for its suspension: The writ may be suspended only when public safety requires it in times of rebellion or invasion. The Clause is designed to protect against cyclical abuses of the writ by the Executive and Legislative Branches. It protects detainee rights by a means consistent with the Constitution’s essential design, ensuring that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the “delicate balance of governance.” Hamdi, supra, at 536. Separation-of-powers principles, and the history that influenced their design, inform the Clause’s reach and purpose. Pp. 8–15.
(b) A diligent search of founding-era precedents and legal commentaries reveals no certain conclusions. None of the cases the parties cite reveal whether a common-law court would have granted, or refused to hear for lack of jurisdiction, a habeas petition by a prisoner deemed an enemy combatant, under a standard like the Defense Department’s in these cases, and when held in a territory, like Guantanamo, over which the Government has total military and civil control. The evidence as to the writ’s geographic scope at common law is informative, but, again, not dispositive. Petitioners argue that the site of their detention is analogous to two territories outside England to which the common-law writ ran, the exempt jurisdictions and India, but critical differences between these places and Guantanamo render these claims unpersuasive. The Government argues that Guantanamo is more closely analogous to Scotland and Hanover, where the writ did not run, but it is unclear whether the common-law courts lacked the power to issue the writ there, or whether they refrained from doing so for prudential reasons. The parties’ arguments that the very lack of a precedent on point supports their respective positions are premised upon the doubtful assumptions that the historical record is complete and that the common law, if properly understood, yields a definite answer to the questions before the Court. Pp. 15–22.
(c) The Suspension Clause has full effect at Guantanamo. The Government’s argument that the Clause affords petitioners no rights because the United States does not claim sovereignty over the naval station is rejected. Pp. 22–42.
(i) The Court does not question the Government’s position that Cuba maintains sovereignty, in the legal and technical sense, over Guantanamo, but it does not accept the Government’s premise that de jure sovereignty is the touchstone of habeas jurisdiction. Common-law habeas’ history provides scant support for this proposition, and it is inconsistent with the Court’s precedents and contrary to fundamental separation-of-powers principles. Pp. 22–25.
(ii) Discussions of the Constitution’s extraterritorial application in cases involving provisions other than the Suspension Clause undermine the Government’s argument. Fundamental questions regarding the Constitution’s geographic scope first arose when the Nation acquired Hawaii and the noncontiguous Territories ceded by Spain after the Spanish-American War, and Congress discontinued its prior practice of extending constitutional rights to territories by statute. In the so-called Insular Cases, the Court held that the Constitution had independent force in the territories that was not contingent upon acts of legislative grace. See, e.g., Dorr v. United States, 195 U. S. 138. Yet because of the difficulties and disruption inherent in transforming the former Spanish colonies’ civil-law system into an Anglo-American system, the Court adopted the doctrine of territorial incorporation, under which the Constitution applies in full in incorporated Territories surely destined for statehood but only in part in unincorporated Territories. See, e.g., id., at 143. Practical considerations likewise influenced the Court’s analysis in Reid v. Covert, 354 U. S. 1, where, in applying the jury provisions of the Fifth and Sixth Amendments to American civilians being tried by the U. S. military abroad, both the plurality and the concurrences noted the relevance of practical considerations, related not to the petitioners’ citizenship, but to the place of their confinement and trial. Finally, in holding that habeas jurisdiction did not extend to enemy aliens, convicted of violating the laws of war, who were detained in a German prison during the Allied Powers’ post-World War II occupation, the Court, in Johnson v. Eisentrager, 339 U. S. 763, stressed the practical difficulties of ordering the production of the prisoners, id., at 779. The Government’s reading of Eisentrager as adopting a formalistic test for determining the Suspension Clause’s reach is rejected because: (1) the discussion of practical considerations in that case was integral to a part of the Court’s opinion that came before it announced its holding, see id., at 781; (2) it mentioned the concept of territorial sovereignty only twice in its opinion, in contrast to its significant discussion of practical barriers to the running of the writ; and (3) if the Government’s reading were correct, the opinion would have marked not only a change in, but a complete repudiation of, the Insular Cases’ (and later Reid’s) functional approach. A constricted reading of Eisentrager overlooks what the Court sees as a common thread uniting all these cases: The idea that extraterritoriality questions turn on objective factors and practical concerns, not formalism. Pp. 25–34.
(iii) The Government’s sovereignty-based test raises troubling separation-of-powers concerns, which are illustrated by Guantanamo’s political history. Although the United States has maintained complete and uninterrupted control of Guantanamo for over 100 years, the Government’s view is that the Constitution has no effect there, at least as to noncitizens, because the United States disclaimed formal sovereignty in its 1903 lease with Cuba. The Nation’s basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say “what the law is.” Marbury v. Madison, 1 Cranch 137, 177. These concerns have particular bearing upon the Suspension Clause question here, for the habeas writ is itself an indispensable mechanism for monitoring the separation of powers. Pp. 34–36.
(iv) Based on Eisentrager, supra, at 777, and the Court’s reasoning in its other extraterritoriality opinions, at least three factors are relevant in determining the Suspension Clause’s reach: (1) the detainees’ citizenship and status and the adequacy of the process through which that status was determined; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ. Application of this framework reveals, first, that petitioners’ status is in dispute: They are not American citizens, but deny they are enemy combatants; and although they have been afforded some process in CSRT proceedings, there has been no Eisentrager–style trial by military commission for violations of the laws of war. Second, while the sites of petitioners’ apprehension and detention weigh against finding they have Suspension Clause rights, there are critical differences between Eisentrager’s German prison, circa 1950, and the Guantanamo Naval Station in 2008, given the Government’s absolute and indefinite control over the naval station. Third, although the Court is sensitive to the financial and administrative costs of holding the Suspension Clause applicable in a case of military detention abroad, these factors are not dispositive because the Government presents no credible arguments that the military mission at Guantanamo would be compromised if habeas courts had jurisdiction. The situation in Eisentrager was far different, given the historical context and nature of the military’s mission in post-War Germany. Pp. 36–41.
(d) Petitioners are therefore entitled to the habeas privilege, and if that privilege is to be denied them, Congress must act in accordance with the Suspension Clause’s requirements. Cf. Rasul, 542 U. S., at 564. Pp. 41–42.
3. Because the DTA’s procedures for reviewing detainees’ status are not an adequate and effective substitute for the habeas writ, MCA §7 operates as an unconstitutional suspension of the writ. Pp. 42–64.
(a) Given its holding that the writ does not run to petitioners, the D. C. Circuit found it unnecessary to consider whether there was an adequate substitute for habeas. This Court usually remands for consideration of questions not decided below, but departure from this rule is appropriate in “exceptional” circumstances, see, e.g., Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 169, here, the grave separation-of-powers issues raised by these cases and the fact that petitioners have been denied meaningful access to a judicial forum for years. Pp. 42–44.
(b) Historically, Congress has taken care to avoid suspensions of the writ. For example, the statutes at issue in the Court’s two leading cases addressing habeas substitutes, Swain v. Pressley, 430 U. S. 372, and United States v. Hayman, 342 U. S. 205, were attempts to streamline habeas relief, not to cut it back. Those cases provide little guidance here because, inter alia, the statutes in question gave the courts broad remedial powers to secure the historic office of the writ, and included saving clauses to preserve habeas review as an avenue of last resort. In contrast, Congress intended the DTA and the MCA to circumscribe habeas review, as is evident from the unequivocal nature of MCA §7’s jurisdiction-stripping language, from the DTA’s text limiting the Court of Appeals’ jurisdiction to assessing whether the CSRT complied with the “standards and procedures specified by the Secretary of Defense,” DTA §1005(e)(2)(C), and from the absence of a saving clause in either Act. That Congress intended to create a more limited procedure is also confirmed by the legislative history and by a comparison of the DTA and the habeas statute that would govern in MCA §7’s absence, 28 U. S. C. §2241. In §2241, Congress authorized “any justice” or “circuit judge” to issue the writ, thereby accommodating the necessity for factfinding that will arise in some cases by allowing the appellate judge or Justice to transfer the case to a district court. See §2241(b). However, by granting the D. C. Circuit “exclusive” jurisdiction over petitioners’ cases, see DTA §1005(e)(2)(A), Congress has foreclosed that option in these cases. Pp. 44–49.
(c) This Court does not endeavor to offer a comprehensive summary of the requisites for an adequate habeas substitute. It is uncontroversial, however, that the habeas privilege entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to “the erroneous application or interpretation” of relevant law, INS v. St. Cyr, 533 U. S. 289, 302, and the habeas court must have the power to order the conditional release of an individual unlawfully detained. But more may be required depending on the circumstances. Petitioners identify what they see as myriad deficiencies in the CSRTs, the most relevant being the constraints upon the detainee’s ability to rebut the factual basis for the Government’s assertion that he is an enemy combatant. At the CSRT stage the detainee has limited means to find or present evidence to challenge the Government’s case, does not have the assistance of counsel, and may not be aware of the most critical allegations that the Government relied upon to order his detention. His opportunity to confront witnesses is likely to be more theoretical than real, given that there are no limits on the admission of hearsay. The Court therefore agrees with petitioners that there is considerable risk of error in the tribunal’s findings of fact. And given that the consequence of error may be detention for the duration of hostilities that may last a generation or more, the risk is too significant to ignore. Accordingly, for the habeas writ, or its substitute, to function as an effective and meaningful remedy in this context, the court conducting the collateral proceeding must have some ability to correct any errors, to assess the sufficiency of the Government’s evidence, and to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding. In re Yamashita, 327 U. S. 1, 5, 8, and Ex parte Quirin, 317 U. S. 1, 23–25, distinguished. Pp. 49–57.
(d) Petitioners have met their burden of establishing that the DTA review process is, on its face, an inadequate substitute for habeas. Among the constitutional infirmities from which the DTA potentially suffers are the absence of provisions allowing petitioners to challenge the President’s authority under the AUMF to detain them indefinitely, to contest the CSRT’s findings of fact, to supplement the record on review with exculpatory evidence discovered after the CSRT proceedings, and to request release. The statute cannot be read to contain each of these constitutionally required procedures. MCA §7 thus effects an unconstitutional suspension of the writ. There is no jurisdictional bar to the District Court’s entertaining petitioners’ claims. Pp. 57–64.
4. Nor are there prudential barriers to habeas review. Pp. 64–70.
(a) Petitioners need not seek review of their CSRT determinations in the D. C. Circuit before proceeding with their habeas actions in the District Court. If these cases involved detainees held for only a short time while awaiting their CSRT determinations, or were it probable that the Court of Appeals could complete a prompt review of their applications, the case for requiring temporary abstention or exhaustion of alternative remedies would be much stronger. But these qualifications no longer pertain here. In some instances six years have elapsed without the judicial oversight that habeas corpus or an adequate substitute demands. To require these detainees to pursue the limited structure of DTA review before proceeding with habeas actions would be to require additional months, if not years, of delay. This holding should not be read to imply that a habeas court should intervene the moment an enemy combatant steps foot in a territory where the writ runs. Except in cases of undue delay, such as the present, federal courts should refrain from entertaining an enemy combatant’s habeas petition at least until after the CSRT has had a chance to review his status. Pp. 64–67.
(b) In effectuating today’s holding, certain accommodations—including channeling future cases to a single district court and requiring that court to use its discretion to accommodate to the greatest extent possible the Government’s legitimate interest in protecting sources and intelligence gathering methods—should be made to reduce the burden habeas proceedings will place on the military, without impermissibly diluting the writ’s protections. Pp. 67–68.
5. In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, the courts must accord proper deference to the political branches. However, security subsists, too, in fidelity to freedom’s first principles, chief among them being freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. Pp. 68–70.
476 F. 3d 981, reversed and remanded.
Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Souter, J., filed a concurring opinion, in which Ginsburg and Breyer, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Scalia, Thomas, and Alito, JJ., joined. Scalia, J., filed a dissenting opinion, in which Roberts, C. J., and Thomas and Alito, JJ., joined.
* Together with No. 06–1196, Al Odah, Next Friend of Al Odah, et al. v. United States et al., also on certiorari to the same court.
BOUMEDIENE et al. v. BUSH, PRESIDENT OF THE UNITED STATES, et al.
Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Souter, J., filed a concurring opinion, in which Ginsburg and Breyer, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Scalia, Thomas, and Alito, JJ., joined. Scalia, J., filed a dissenting opinion, in which Roberts, C. J., and Thomas and Alito, JJ., joined.
BOUMEDIENE et al. v. BUSH, PRESIDENT OF THE UNITED STATES, et al.
certiorari to the united states court of appeals for the district of columbia circuit No. 06–1195.
Argued December 5, 2007—Decided June 12, 2008*
In the Authorization for Use of Military Force (AUMF), Congress empowered the President “to use all necessary and appropriate force against those … he determines planned, authorized, committed, or aided the terrorist attacks … on September 11, 2001.” In Hamdi v. Rumsfeld, 542 U. S. 507, 518, 588–589, five Justices recognized that detaining individuals captured while fighting against the United States in Afghanistan for the duration of that conflict was a fundamental and accepted incident to war. Thereafter, the Defense Department established Combatant Status Review Tribunals (CSRTs) to determine whether individuals detained at the U. S. Naval Station at Guantanamo Bay, Cuba, were “enemy combatants.”
Petitioners are aliens detained at Guantanamo after being captured in Afghanistan or elsewhere abroad and designated enemy combatants by CSRTs. Denying membership in the al Qaeda terrorist network that carried out the September 11 attacks and the Taliban regime that supported al Qaeda, each petitioner sought a writ of habeas corpus in the District Court, which ordered the cases dismissed for lack of jurisdiction because Guantanamo is outside sovereign U. S. territory. The D. C. Circuit affirmed, but this Court reversed, holding that 28 U. S. C. §2241 extended statutory habeas jurisdiction to Guantanamo. See Rasul v. Bush, 542 U. S. 466, 473. Petitioners’ cases were then consolidated into two proceedings. In the first, the district judge granted the Government’s motion to dismiss, holding that the detainees had no rights that could be vindicated in a habeas action. In the second, the judge held that the detainees had due process rights.
While appeals were pending, Congress passed the Detainee Treatment Act of 2005 (DTA), §1005(e) of which amended 28 U. S. C. §2241 to provide that “no court, justice, or judge shall have jurisdiction to … consider … an application for … habeas corpus filed by or on behalf of an alien detained … at Guantanamo,” and gave the D. C. Court of Appeals “exclusive” jurisdiction to review CSRT decisions. In Hamdan v. Rumsfeld, 548 U. S. 557, 576–577, the Court held this provision inapplicable to cases (like petitioners’) pending when the DTA was enacted. Congress responded with the Military Commissions Act of 2006 (MCA), §7(a) of which amended §2241(e)(1) to deny jurisdiction with respect to habeas actions by detained aliens determined to be enemy combatants, while §2241(e)(2) denies jurisdiction as to “any other action against the United States … relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement” of a detained alien determined to be an enemy combatant. MCA §7(b) provides that the 2241(e) amendments “shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after [that] date … which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained … since September 11, 2001.”
The D. C. Court of Appeals concluded that MCA §7 must be read to strip from it, and all federal courts, jurisdiction to consider petitioners’ habeas applications; that petitioners are not entitled to habeas or the protections of the Suspension Clause, U. S. Const., Art. I, §9, cl. 2, which provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it”; and that it was therefore unnecessary to consider whether the DTA provided an adequate and effective substitute for habeas.
Held:
1. MCA §7 denies the federal courts jurisdiction to hear habeas actions, like the instant cases, that were pending at the time of its enactment. Section §7(b)’s effective date provision undoubtedly applies to habeas actions, which, by definition, “relate to … detention” within that section’s meaning. Petitioners argue to no avail that §7(b) does not apply to a §2241(e)(1) habeas action, but only to “any other action” under §2241(e)(2), because it largely repeats that section’s language. The phrase “other action” in §2241(e)(2) cannot be understood without referring back to §2241(e)(1), which explicitly mentions the “writ of habeas corpus.” Because the two paragraphs’ structure implies that habeas is a type of action “relating to any aspect of … detention,” etc., pending habeas actions are in the category of cases subject to the statute’s jurisdictional bar. This is confirmed by the MCA’s legislative history. Thus, if MCA §7 is valid, petitioners’ cases must be dismissed. Pp. 5–8.
2. Petitioners have the constitutional privilege of habeas corpus. They are not barred from seeking the writ or invoking the Suspension Clause’s protections because they have been designated as enemy combatants or because of their presence at Guantanamo. Pp. 8–41.
(a) A brief account of the writ’s history and origins shows that protection for the habeas privilege was one of the few safeguards of liberty specified in a Constitution that, at the outset, had no Bill of Rights; in the system the Framers conceived, the writ has a centrality that must inform proper interpretation of the Suspension Clause. That the Framers considered the writ a vital instrument for the protection of individual liberty is evident from the care taken in the Suspension Clause to specify the limited grounds for its suspension: The writ may be suspended only when public safety requires it in times of rebellion or invasion. The Clause is designed to protect against cyclical abuses of the writ by the Executive and Legislative Branches. It protects detainee rights by a means consistent with the Constitution’s essential design, ensuring that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the “delicate balance of governance.” Hamdi, supra, at 536. Separation-of-powers principles, and the history that influenced their design, inform the Clause’s reach and purpose. Pp. 8–15.
(b) A diligent search of founding-era precedents and legal commentaries reveals no certain conclusions. None of the cases the parties cite reveal whether a common-law court would have granted, or refused to hear for lack of jurisdiction, a habeas petition by a prisoner deemed an enemy combatant, under a standard like the Defense Department’s in these cases, and when held in a territory, like Guantanamo, over which the Government has total military and civil control. The evidence as to the writ’s geographic scope at common law is informative, but, again, not dispositive. Petitioners argue that the site of their detention is analogous to two territories outside England to which the common-law writ ran, the exempt jurisdictions and India, but critical differences between these places and Guantanamo render these claims unpersuasive. The Government argues that Guantanamo is more closely analogous to Scotland and Hanover, where the writ did not run, but it is unclear whether the common-law courts lacked the power to issue the writ there, or whether they refrained from doing so for prudential reasons. The parties’ arguments that the very lack of a precedent on point supports their respective positions are premised upon the doubtful assumptions that the historical record is complete and that the common law, if properly understood, yields a definite answer to the questions before the Court. Pp. 15–22.
(c) The Suspension Clause has full effect at Guantanamo. The Government’s argument that the Clause affords petitioners no rights because the United States does not claim sovereignty over the naval station is rejected. Pp. 22–42.
(i) The Court does not question the Government’s position that Cuba maintains sovereignty, in the legal and technical sense, over Guantanamo, but it does not accept the Government’s premise that de jure sovereignty is the touchstone of habeas jurisdiction. Common-law habeas’ history provides scant support for this proposition, and it is inconsistent with the Court’s precedents and contrary to fundamental separation-of-powers principles. Pp. 22–25.
(ii) Discussions of the Constitution’s extraterritorial application in cases involving provisions other than the Suspension Clause undermine the Government’s argument. Fundamental questions regarding the Constitution’s geographic scope first arose when the Nation acquired Hawaii and the noncontiguous Territories ceded by Spain after the Spanish-American War, and Congress discontinued its prior practice of extending constitutional rights to territories by statute. In the so-called Insular Cases, the Court held that the Constitution had independent force in the territories that was not contingent upon acts of legislative grace. See, e.g., Dorr v. United States, 195 U. S. 138. Yet because of the difficulties and disruption inherent in transforming the former Spanish colonies’ civil-law system into an Anglo-American system, the Court adopted the doctrine of territorial incorporation, under which the Constitution applies in full in incorporated Territories surely destined for statehood but only in part in unincorporated Territories. See, e.g., id., at 143. Practical considerations likewise influenced the Court’s analysis in Reid v. Covert, 354 U. S. 1, where, in applying the jury provisions of the Fifth and Sixth Amendments to American civilians being tried by the U. S. military abroad, both the plurality and the concurrences noted the relevance of practical considerations, related not to the petitioners’ citizenship, but to the place of their confinement and trial. Finally, in holding that habeas jurisdiction did not extend to enemy aliens, convicted of violating the laws of war, who were detained in a German prison during the Allied Powers’ post-World War II occupation, the Court, in Johnson v. Eisentrager, 339 U. S. 763, stressed the practical difficulties of ordering the production of the prisoners, id., at 779. The Government’s reading of Eisentrager as adopting a formalistic test for determining the Suspension Clause’s reach is rejected because: (1) the discussion of practical considerations in that case was integral to a part of the Court’s opinion that came before it announced its holding, see id., at 781; (2) it mentioned the concept of territorial sovereignty only twice in its opinion, in contrast to its significant discussion of practical barriers to the running of the writ; and (3) if the Government’s reading were correct, the opinion would have marked not only a change in, but a complete repudiation of, the Insular Cases’ (and later Reid’s) functional approach. A constricted reading of Eisentrager overlooks what the Court sees as a common thread uniting all these cases: The idea that extraterritoriality questions turn on objective factors and practical concerns, not formalism. Pp. 25–34.
(iii) The Government’s sovereignty-based test raises troubling separation-of-powers concerns, which are illustrated by Guantanamo’s political history. Although the United States has maintained complete and uninterrupted control of Guantanamo for over 100 years, the Government’s view is that the Constitution has no effect there, at least as to noncitizens, because the United States disclaimed formal sovereignty in its 1903 lease with Cuba. The Nation’s basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say “what the law is.” Marbury v. Madison, 1 Cranch 137, 177. These concerns have particular bearing upon the Suspension Clause question here, for the habeas writ is itself an indispensable mechanism for monitoring the separation of powers. Pp. 34–36.
(iv) Based on Eisentrager, supra, at 777, and the Court’s reasoning in its other extraterritoriality opinions, at least three factors are relevant in determining the Suspension Clause’s reach: (1) the detainees’ citizenship and status and the adequacy of the process through which that status was determined; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ. Application of this framework reveals, first, that petitioners’ status is in dispute: They are not American citizens, but deny they are enemy combatants; and although they have been afforded some process in CSRT proceedings, there has been no Eisentrager–style trial by military commission for violations of the laws of war. Second, while the sites of petitioners’ apprehension and detention weigh against finding they have Suspension Clause rights, there are critical differences between Eisentrager’s German prison, circa 1950, and the Guantanamo Naval Station in 2008, given the Government’s absolute and indefinite control over the naval station. Third, although the Court is sensitive to the financial and administrative costs of holding the Suspension Clause applicable in a case of military detention abroad, these factors are not dispositive because the Government presents no credible arguments that the military mission at Guantanamo would be compromised if habeas courts had jurisdiction. The situation in Eisentrager was far different, given the historical context and nature of the military’s mission in post-War Germany. Pp. 36–41.
(d) Petitioners are therefore entitled to the habeas privilege, and if that privilege is to be denied them, Congress must act in accordance with the Suspension Clause’s requirements. Cf. Rasul, 542 U. S., at 564. Pp. 41–42.
3. Because the DTA’s procedures for reviewing detainees’ status are not an adequate and effective substitute for the habeas writ, MCA §7 operates as an unconstitutional suspension of the writ. Pp. 42–64.
(a) Given its holding that the writ does not run to petitioners, the D. C. Circuit found it unnecessary to consider whether there was an adequate substitute for habeas. This Court usually remands for consideration of questions not decided below, but departure from this rule is appropriate in “exceptional” circumstances, see, e.g., Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 169, here, the grave separation-of-powers issues raised by these cases and the fact that petitioners have been denied meaningful access to a judicial forum for years. Pp. 42–44.
(b) Historically, Congress has taken care to avoid suspensions of the writ. For example, the statutes at issue in the Court’s two leading cases addressing habeas substitutes, Swain v. Pressley, 430 U. S. 372, and United States v. Hayman, 342 U. S. 205, were attempts to streamline habeas relief, not to cut it back. Those cases provide little guidance here because, inter alia, the statutes in question gave the courts broad remedial powers to secure the historic office of the writ, and included saving clauses to preserve habeas review as an avenue of last resort. In contrast, Congress intended the DTA and the MCA to circumscribe habeas review, as is evident from the unequivocal nature of MCA §7’s jurisdiction-stripping language, from the DTA’s text limiting the Court of Appeals’ jurisdiction to assessing whether the CSRT complied with the “standards and procedures specified by the Secretary of Defense,” DTA §1005(e)(2)(C), and from the absence of a saving clause in either Act. That Congress intended to create a more limited procedure is also confirmed by the legislative history and by a comparison of the DTA and the habeas statute that would govern in MCA §7’s absence, 28 U. S. C. §2241. In §2241, Congress authorized “any justice” or “circuit judge” to issue the writ, thereby accommodating the necessity for factfinding that will arise in some cases by allowing the appellate judge or Justice to transfer the case to a district court. See §2241(b). However, by granting the D. C. Circuit “exclusive” jurisdiction over petitioners’ cases, see DTA §1005(e)(2)(A), Congress has foreclosed that option in these cases. Pp. 44–49.
(c) This Court does not endeavor to offer a comprehensive summary of the requisites for an adequate habeas substitute. It is uncontroversial, however, that the habeas privilege entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to “the erroneous application or interpretation” of relevant law, INS v. St. Cyr, 533 U. S. 289, 302, and the habeas court must have the power to order the conditional release of an individual unlawfully detained. But more may be required depending on the circumstances. Petitioners identify what they see as myriad deficiencies in the CSRTs, the most relevant being the constraints upon the detainee’s ability to rebut the factual basis for the Government’s assertion that he is an enemy combatant. At the CSRT stage the detainee has limited means to find or present evidence to challenge the Government’s case, does not have the assistance of counsel, and may not be aware of the most critical allegations that the Government relied upon to order his detention. His opportunity to confront witnesses is likely to be more theoretical than real, given that there are no limits on the admission of hearsay. The Court therefore agrees with petitioners that there is considerable risk of error in the tribunal’s findings of fact. And given that the consequence of error may be detention for the duration of hostilities that may last a generation or more, the risk is too significant to ignore. Accordingly, for the habeas writ, or its substitute, to function as an effective and meaningful remedy in this context, the court conducting the collateral proceeding must have some ability to correct any errors, to assess the sufficiency of the Government’s evidence, and to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding. In re Yamashita, 327 U. S. 1, 5, 8, and Ex parte Quirin, 317 U. S. 1, 23–25, distinguished. Pp. 49–57.
(d) Petitioners have met their burden of establishing that the DTA review process is, on its face, an inadequate substitute for habeas. Among the constitutional infirmities from which the DTA potentially suffers are the absence of provisions allowing petitioners to challenge the President’s authority under the AUMF to detain them indefinitely, to contest the CSRT’s findings of fact, to supplement the record on review with exculpatory evidence discovered after the CSRT proceedings, and to request release. The statute cannot be read to contain each of these constitutionally required procedures. MCA §7 thus effects an unconstitutional suspension of the writ. There is no jurisdictional bar to the District Court’s entertaining petitioners’ claims. Pp. 57–64.
4. Nor are there prudential barriers to habeas review. Pp. 64–70.
(a) Petitioners need not seek review of their CSRT determinations in the D. C. Circuit before proceeding with their habeas actions in the District Court. If these cases involved detainees held for only a short time while awaiting their CSRT determinations, or were it probable that the Court of Appeals could complete a prompt review of their applications, the case for requiring temporary abstention or exhaustion of alternative remedies would be much stronger. But these qualifications no longer pertain here. In some instances six years have elapsed without the judicial oversight that habeas corpus or an adequate substitute demands. To require these detainees to pursue the limited structure of DTA review before proceeding with habeas actions would be to require additional months, if not years, of delay. This holding should not be read to imply that a habeas court should intervene the moment an enemy combatant steps foot in a territory where the writ runs. Except in cases of undue delay, such as the present, federal courts should refrain from entertaining an enemy combatant’s habeas petition at least until after the CSRT has had a chance to review his status. Pp. 64–67.
(b) In effectuating today’s holding, certain accommodations—including channeling future cases to a single district court and requiring that court to use its discretion to accommodate to the greatest extent possible the Government’s legitimate interest in protecting sources and intelligence gathering methods—should be made to reduce the burden habeas proceedings will place on the military, without impermissibly diluting the writ’s protections. Pp. 67–68.
5. In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, the courts must accord proper deference to the political branches. However, security subsists, too, in fidelity to freedom’s first principles, chief among them being freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. Pp. 68–70.
476 F. 3d 981, reversed and remanded.
Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Souter, J., filed a concurring opinion, in which Ginsburg and Breyer, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Scalia, Thomas, and Alito, JJ., joined. Scalia, J., filed a dissenting opinion, in which Roberts, C. J., and Thomas and Alito, JJ., joined.
* Together with No. 06–1196, Al Odah, Next Friend of Al Odah, et al. v. United States et al., also on certiorari to the same court.
2008年6月2日星期一
谭恩美’s The Joy Luck Club
近两天在看谭恩美的这本小说。突然奇想，上网查了一下。看到如下相关信息：
许多人都是从《The Joy Luck Club》（《喜福会》）知道了谭恩美，那是她的第一本书，也是给她带来声誉的书。好莱坞还把它拍成了电影。但，作为中国人去看这本书，对其中的母女文化冲突不会觉得有太多的感触。因为，那里面的生活离我太遥远了，其中对中国的描写其实是从一个美国人的观点来看的，也许这也是为什么美国人爱读的原因吧，他们更容易理解。《喜福会》中的很多情节源自谭恩美母亲和家人的生活。在《The Opposite of Fate 》中，她详细描述了她父母，她本人的生活经历，以及，她作为第二代移民的生活感触。 在读《喜福会》的时候是抽空读的，读得断断续续，故事安排也是断断续续，四个母亲和四个女儿的回忆穿插在一起。因此，感觉也是断断续续的。倒不如《The Opposite of Fate 》来的流畅，娓娓道来。她讲了她父母和他们的家庭，她的成才经历，她父亲和哥哥在一年之中因脑瘤去世，他的朋友被杀死。她解释她为什么写作，为什么在37岁出版了第一本书。不光有这些沉重的话题，还有一些她的生活中的故事，她生动幽默的笔触讲述了他们在Lake Tahoe的小屋居住时遭遇泥沙流逃命的故事，她的莱姆病的诊断过程。 英语是她的母语，谭恩美是在美国成长起来的，她的作品与其他在美国用英文写作的中国作家不同，因此她的作品易于让美国人接受。最近，严歌苓出版了她的第一部英文小说，不说作品的好坏，但翻一翻，一眼便看出母语不是英文的吃力。谭恩美是英文专业毕业的，她的语言功力很深，用词讲究。单单从学习英语的角度讲，她的这本书是不错的选择。 作为一位少数族裔，谭恩美无疑是成功的作家。虽然在书中她也谈到了作为少数族裔的种种局限。但我想，她的成功其实是由于她作品的题材，作为出生成长在美国的华裔，她最大限度挖掘了她父母一辈的中国故事，把它用她的思唯方式包装起来，成为美国人可以理解的故事，填补了一个空白。林语堂的英文小说未必出色，但是，他以他的方式让外国人了解他表现的中国。谭恩美出生于一九五二年，她笔下的是解放前的中国。也许，中国的留学生的小说很多，但都是以中文写的，影响局限在中文世界。也许，在他们子女长大之后，作为第二代移民，他们之中会出现能够象谭恩美这样作家，去展示上一辈在中国和在美国的足迹。也许，这样有点悲观，但作为第一代移民的留学生们，在为生存挣扎，在文化冲突中，又有多少发挥的空间呢。这是他们的命运。
许多人都是从《The Joy Luck Club》（《喜福会》）知道了谭恩美，那是她的第一本书，也是给她带来声誉的书。好莱坞还把它拍成了电影。但，作为中国人去看这本书，对其中的母女文化冲突不会觉得有太多的感触。因为，那里面的生活离我太遥远了，其中对中国的描写其实是从一个美国人的观点来看的，也许这也是为什么美国人爱读的原因吧，他们更容易理解。《喜福会》中的很多情节源自谭恩美母亲和家人的生活。在《The Opposite of Fate 》中，她详细描述了她父母，她本人的生活经历，以及，她作为第二代移民的生活感触。 在读《喜福会》的时候是抽空读的，读得断断续续，故事安排也是断断续续，四个母亲和四个女儿的回忆穿插在一起。因此，感觉也是断断续续的。倒不如《The Opposite of Fate 》来的流畅，娓娓道来。她讲了她父母和他们的家庭，她的成才经历，她父亲和哥哥在一年之中因脑瘤去世，他的朋友被杀死。她解释她为什么写作，为什么在37岁出版了第一本书。不光有这些沉重的话题，还有一些她的生活中的故事，她生动幽默的笔触讲述了他们在Lake Tahoe的小屋居住时遭遇泥沙流逃命的故事，她的莱姆病的诊断过程。 英语是她的母语，谭恩美是在美国成长起来的，她的作品与其他在美国用英文写作的中国作家不同，因此她的作品易于让美国人接受。最近，严歌苓出版了她的第一部英文小说，不说作品的好坏，但翻一翻，一眼便看出母语不是英文的吃力。谭恩美是英文专业毕业的，她的语言功力很深，用词讲究。单单从学习英语的角度讲，她的这本书是不错的选择。 作为一位少数族裔，谭恩美无疑是成功的作家。虽然在书中她也谈到了作为少数族裔的种种局限。但我想，她的成功其实是由于她作品的题材，作为出生成长在美国的华裔，她最大限度挖掘了她父母一辈的中国故事，把它用她的思唯方式包装起来，成为美国人可以理解的故事，填补了一个空白。林语堂的英文小说未必出色，但是，他以他的方式让外国人了解他表现的中国。谭恩美出生于一九五二年，她笔下的是解放前的中国。也许，中国的留学生的小说很多，但都是以中文写的，影响局限在中文世界。也许，在他们子女长大之后，作为第二代移民，他们之中会出现能够象谭恩美这样作家，去展示上一辈在中国和在美国的足迹。也许，这样有点悲观，但作为第一代移民的留学生们，在为生存挣扎，在文化冲突中，又有多少发挥的空间呢。这是他们的命运。
2008年6月1日星期日
"The Supreme Court Justices", April 2005
"The Supreme Court Justices", eJournal USA: Issues of Democracy, April 2005
值得注意的是，2005年大法官奎尔斯特病故后，美国最高法院大法官已经变成了John G. Roberts, Jr.。现有美国最高法院成员依次是，John G. Roberts, Jr., John Paul Stevens, Antonin Scalia, Anthony M. Kennedy, David Hackett Souter, Clarence Thomas, Ruth Bader Ginsburg, Stephen G. Breyer, Samuel Anthony Alito, Jr.,
现任大法官们的简历如下：
John G. Roberts, Jr.,
Chief Justice of the United States, was born in Buffalo, New York, January 27, 1955. He married Jane Marie Sullivan in 1996 and they have two children - Josephine and John. He received an A.B. from Harvard College in 1976 and aJ.D. from Harvard Law School in 1979. He served as a law clerk for Judge Henry J.Friendly of the United States Court of Appeals for the Second Circuit from 1979–1980 and as a law clerk for then-Associate Justice William H. Rehnquist of the Supreme Court of the United States during the 1980 Term. He was Special Assistant to the Attorney General,U.S. Department of Justice from 1981–1982, Associate Counsel to President RonaldReagan, White House Counsel’s Office from 1982–1986, and Principal Deputy Solicitor General, U.S. Department of Justice from 1989–1993. From 1986–1989 and 1993–2003, he practiced law in Washington, D.C. He was appointed to the United States Court of Appeals for the District of Columbia Circuit in 2003. President George W. Bush nominated him asChief Justice of the United States, and he took his seat on September 29, 2005.
* * * John Paul Stevens,
Associate Justice, was born in Chicago, Illinois, April 20, 1920.He married Maryan Mulholland, and has four children - John Joseph (deceased), Kathryn, Elizabeth Jane, and Susan Roberta. He received an A.B. from the University of Chicago, and a J.D. from Northwestern University School of Law. He served in the United States Navy from 1942–1945, and was a law clerk to Justice Wiley Rutledge of the Supreme Court of the United States during the 1947 Term. He was admitted to law practice in Illinois in 1949. He was Associate Counsel to the Subcommittee on the Study of Monopoly Power of the Judiciary Committee of the U.S. House of Representatives, 1951–1952, and a member of the Attorney General’s National Committee to Study Antitrust Law, 1953–1955. He was Second Vice President of the Chicago Bar Association in 1970. From 1970–1975, he served as a Judge of the United States Court of Appeals for the Seventh Circuit. President Ford nominated him as an Associate Justice of the Supreme Court, and he took his seat Decem-ber 19, 1975.
* * * Antonin Scalia,
Associate Justice, was born in Trenton, New Jersey, March 11, 1936.He married Maureen McCarthy and has nine children - Ann Forrest, Eugene, John Francis, Catherine Elisabeth, Mary Clare, Paul David, Matthew, Christopher James, and MargaretJane. He received his A.B. from Georgetown University and the University of Fribourg, Switzerland, and his LL.B. from Harvard Law School, and was a Sheldon Fellow of Har-vard University from 1960–1961. He was in private practice in Cleveland, Ohio from 1961–1967, a Professor of Law at the University of Virginia from 1967–1971, and a Professor of Law at the University of Chicago from 1977–1982, and a Visiting Professor of Law at Georgetown University and Stanford University. He was chairman of the American Bar Association’s Section of Administrative Law, 1981–1982, and its Conference of SectionChairmen, 1982–1983. He served the federal government as General Counsel of the Officeof Telecommunications Policy from 1971–1972, Chairman of the Administrative Conference of the United States from 1972–1974, and Assistant Attorney General for the Office ofLegal Counsel from 1974–1977. He was appointed Judge of the United States Court of Appeals for the District of Columbia Circuit in 1982. President Reagan nominated him asan Associate Justice of the Supreme Court, and he took his seat September 26, 1986.
* * * Anthony M. Kennedy,
Associate Justice, was born in Sacramento, California, July 23, 1936. He married Mary Davis and has three children. He received his B.A. from Stanford University and the London School of Economics, and his LL.B. from Harvard LawSchool. He was in private practice in San Francisco, California from 1961–1963, as well as in Sacramento, California from 1963–1975. From 1965 to 1988, he was a Professor of Constitutional Law at the McGeorge School of Law, University of the Pacific. He has served in numerous positions during his career, including a member of the California Army National Guard in 1961, the board of the Federal Judicial Center from 1987–1988, and two committees of the Judicial Conference of the United States: the Advisory Panel on Finan-cial Disclosure Reports and Judicial Activities, subsequently renamed the Advisory Com-mittee on Codes of Conduct, from 1979–1987, and the Committee on Pacific Territories from 1979–1990, which he chaired from 1982–1990. He was appointed to the United States Court of Appeals for the Ninth Circuit in 1975. President Reagan nominated him as an Associate Justice of the Supreme Court, and he took his seat February 18, 1988.
* * * David Hackett Souter,
Associate Justice, was born in Melrose, Massachusetts,September 17, 1939. He was graduated from Harvard College, from which he received his A.B. After two years as a Rhodes Scholar at Magdalen College, Oxford, he received anA.B. in Jurisprudence from Oxford University and an M.A. in 1989. After receivingan LL.B. from Harvard Law School, he was an associate at Orr and Reno in Concord,New Hampshire from 1966 to 1968, when he became an Assistant Attorney General of NewHampshire. In 1971, he became Deputy Attorney General and in 1976, Attorney General of New Hampshire. In 1978, he was named an Associate Justice of the Superior Court of New Hampshire, and was appointed to the Supreme Court of New Hampshire as an AssociateJustice in 1983. He became a Judge of the United States Court of Appeals for the First Circuit on May 25, 1990. President Bush nominated him as an Associate Justice of the Supreme Court, and he took his seat October 9, 1990.
* * * Clarence Thomas, Associate Justice, was born in the Pin Point community of Georgia near Savannah June 23, 1948. He married Virginia Lamp in 1987 and has one child, JamalAdeen, by a previous marriage. He attended Conception Seminary and received an A.B., cum laude, from Holy Cross College, and a J.D. from Yale Law School in 1974. He was admitted to law practice in Missouri in 1974, and served as an Assistant Attorney General of Missouri from 1974–1977, an attorney with the Monsanto Company from 1977–1979, and Legislative Assistant to Senator John Danforth from 1979–1981. From 1981–1982, he served as Assistant Secretary for Civil Rights, U.S. Department of Education, and as Chairman of the U.S. Equal Employment Opportunity Commission from 1982–1990. He became a Judge of the United States Court of Appeals for the District of Columbia Circuitin 1990. President Bush nominated him as an Associate Justice of the Supreme Court, and he took his seat October 23, 1991.
* * * Ruth Bader Ginsburg, Associate Justice, was born in Brooklyn, New York, March 15, 1933. She married Martin D. Ginsburg in 1954, and has a daughter, Jane, and a son, James. She received her B.A. from Cornell University, attended Harvard Law School, and received her LL.B. from Columbia Law School. She served as a law clerk to the Honorable Edmund L. Palmieri, Judge of the United States District Court for the Southern District of New York, from 1959–1961. From 1961–1963, she was a research associate and then associate director of the Columbia Law School Project on International Procedure. She was a Professor of Law at Rutgers University School of Law from 1963–1972, and ColumbiaLaw School from 1972–1980, and a fellow at the Center for Advanced Study in the Behav-ioral Sciences in Stanford, California from 1977–1978. In 1971, she was instrumental inlaunching the Women’s Rights Project of the American Civil Liberties Union, and served asthe ACLU’s General Counsel from 1973–1980, and on the National Board of Directors from 1974–1980. She was appointed a Judge of the United States Court of Appeals for the District of Columbia Circuit in 1980. President Clinton nominated her as an Associate Justice of the Supreme Court, and she took her seat August 10, 1993.
Stephen G. Breyer,
Associate Justice, was born in San Francisco, California, August 15, 1938. He married Joanna Hare in 1967, and has three children - Chloe, Nell, and Michael. He received an A.B. from Stanford University, a B.A. from Magdalen College, Oxford, and an LL.B. from Harvard Law School. He served as a law clerk to Justice Arthur Goldberg of the Supreme Court of the United States during the 1964 Term, as a SpecialAssistant to the Assistant U.S. Attorney General for Antitrust, 1965–1967, as an Assistant Special Prosecutor of the Watergate Special Prosecution Force, 1973, as Special Counsel ofthe U.S. Senate Judiciary Committee, 1974–1975, and as Chief Counsel of the committee, 1979–1980. He was an Assistant Professor, Professor of Law, and Lecturer at Harvard Law School, 1967–1994, a Professor at the Harvard University Kennedy School of Government, 1977–1980, and a Visiting Professor at the College of Law, Sydney, Australia and at the University of Rome. From 1980–1990, he served as a Judge of the United States Court of Appeals for the First Circuit, and as its Chief Judge, 1990–1994. He also served as a member of the Judicial Conference of the United States, 1990–1994, and of the UnitedStates Sentencing Commission, 1985–1989. President Clinton nominated him as an Asso-ciate Justice of the Supreme Court, and he took his seat August 3, 1994.
* * * Samuel Anthony Alito,
Jr., Associate Justice, was born in Trenton, New Jersey, April 1, 1950. He married Martha-Ann Bomgardner in 1985, and has two children -Philip and Laura. He served as a law clerk for Leonard I. Garth of the United States Court of Appeals forthe Third Circuit from 1976–1977. He was Assistant U.S. Attorney, District of New Jersey, 1977–1981, Assistant to the Solicitor General, U.S. Department of Justice, 1981–1985, DeputyAssistant Attorney General, U.S. Department of Justice, 1985–1987, and U.S. Attorney, District of New Jersey, 1987–1990. He was appointed to the United States Court of Appeals for the Third Circuit in 1990. President George W. Bush nominated him as an AssociateJustice of the Supreme Court, and he took his seat on January 31, 2006.
* * * Sandra Day O’Connor (Retired), Associate Justice, was born in El Paso, Texas, March 26, 1930. She married John Jay O’Connor III in 1952 and has three sons - Scott, Brian, and Jay. She received her B.A. and LL.B. from Stanford University. She served as Deputy County Attorney of San Mateo County, California from 1952–1953 and as a civilian attorney for Quartermaster Market Center, Frankfurt, Germany from 1954–1957. From 1958–1960, she practiced law in Maryvale, Arizona, and served as Assistant Attorney General of Arizona from 1965–1969. She was appointed to the Arizona State Senate in1969 and was subsequently reelected to two two-year terms. In 1975 she was elected Judgeof the Maricopa County Superior Court and served until 1979, when she was appointed to the Arizona Court of Appeals. President Reagan nominated her as an Associate Justice of the Supreme Court, and she took her seat September 25, 1981. Justice O’Connor retired from the Supreme Court on January 31, 2006.
[The foregoing was taken from a booklet prepared by the Supreme Court of the United States,and published with funding from the Supreme Court Historical Society.]
值得注意的是，2005年大法官奎尔斯特病故后，美国最高法院大法官已经变成了John G. Roberts, Jr.。现有美国最高法院成员依次是，John G. Roberts, Jr., John Paul Stevens, Antonin Scalia, Anthony M. Kennedy, David Hackett Souter, Clarence Thomas, Ruth Bader Ginsburg, Stephen G. Breyer, Samuel Anthony Alito, Jr.,
现任大法官们的简历如下：
John G. Roberts, Jr.,
Chief Justice of the United States, was born in Buffalo, New York, January 27, 1955. He married Jane Marie Sullivan in 1996 and they have two children - Josephine and John. He received an A.B. from Harvard College in 1976 and aJ.D. from Harvard Law School in 1979. He served as a law clerk for Judge Henry J.Friendly of the United States Court of Appeals for the Second Circuit from 1979–1980 and as a law clerk for then-Associate Justice William H. Rehnquist of the Supreme Court of the United States during the 1980 Term. He was Special Assistant to the Attorney General,U.S. Department of Justice from 1981–1982, Associate Counsel to President RonaldReagan, White House Counsel’s Office from 1982–1986, and Principal Deputy Solicitor General, U.S. Department of Justice from 1989–1993. From 1986–1989 and 1993–2003, he practiced law in Washington, D.C. He was appointed to the United States Court of Appeals for the District of Columbia Circuit in 2003. President George W. Bush nominated him asChief Justice of the United States, and he took his seat on September 29, 2005.
* * * John Paul Stevens,
Associate Justice, was born in Chicago, Illinois, April 20, 1920.He married Maryan Mulholland, and has four children - John Joseph (deceased), Kathryn, Elizabeth Jane, and Susan Roberta. He received an A.B. from the University of Chicago, and a J.D. from Northwestern University School of Law. He served in the United States Navy from 1942–1945, and was a law clerk to Justice Wiley Rutledge of the Supreme Court of the United States during the 1947 Term. He was admitted to law practice in Illinois in 1949. He was Associate Counsel to the Subcommittee on the Study of Monopoly Power of the Judiciary Committee of the U.S. House of Representatives, 1951–1952, and a member of the Attorney General’s National Committee to Study Antitrust Law, 1953–1955. He was Second Vice President of the Chicago Bar Association in 1970. From 1970–1975, he served as a Judge of the United States Court of Appeals for the Seventh Circuit. President Ford nominated him as an Associate Justice of the Supreme Court, and he took his seat Decem-ber 19, 1975.
* * * Antonin Scalia,
Associate Justice, was born in Trenton, New Jersey, March 11, 1936.He married Maureen McCarthy and has nine children - Ann Forrest, Eugene, John Francis, Catherine Elisabeth, Mary Clare, Paul David, Matthew, Christopher James, and MargaretJane. He received his A.B. from Georgetown University and the University of Fribourg, Switzerland, and his LL.B. from Harvard Law School, and was a Sheldon Fellow of Har-vard University from 1960–1961. He was in private practice in Cleveland, Ohio from 1961–1967, a Professor of Law at the University of Virginia from 1967–1971, and a Professor of Law at the University of Chicago from 1977–1982, and a Visiting Professor of Law at Georgetown University and Stanford University. He was chairman of the American Bar Association’s Section of Administrative Law, 1981–1982, and its Conference of SectionChairmen, 1982–1983. He served the federal government as General Counsel of the Officeof Telecommunications Policy from 1971–1972, Chairman of the Administrative Conference of the United States from 1972–1974, and Assistant Attorney General for the Office ofLegal Counsel from 1974–1977. He was appointed Judge of the United States Court of Appeals for the District of Columbia Circuit in 1982. President Reagan nominated him asan Associate Justice of the Supreme Court, and he took his seat September 26, 1986.
* * * Anthony M. Kennedy,
Associate Justice, was born in Sacramento, California, July 23, 1936. He married Mary Davis and has three children. He received his B.A. from Stanford University and the London School of Economics, and his LL.B. from Harvard LawSchool. He was in private practice in San Francisco, California from 1961–1963, as well as in Sacramento, California from 1963–1975. From 1965 to 1988, he was a Professor of Constitutional Law at the McGeorge School of Law, University of the Pacific. He has served in numerous positions during his career, including a member of the California Army National Guard in 1961, the board of the Federal Judicial Center from 1987–1988, and two committees of the Judicial Conference of the United States: the Advisory Panel on Finan-cial Disclosure Reports and Judicial Activities, subsequently renamed the Advisory Com-mittee on Codes of Conduct, from 1979–1987, and the Committee on Pacific Territories from 1979–1990, which he chaired from 1982–1990. He was appointed to the United States Court of Appeals for the Ninth Circuit in 1975. President Reagan nominated him as an Associate Justice of the Supreme Court, and he took his seat February 18, 1988.
* * * David Hackett Souter,
Associate Justice, was born in Melrose, Massachusetts,September 17, 1939. He was graduated from Harvard College, from which he received his A.B. After two years as a Rhodes Scholar at Magdalen College, Oxford, he received anA.B. in Jurisprudence from Oxford University and an M.A. in 1989. After receivingan LL.B. from Harvard Law School, he was an associate at Orr and Reno in Concord,New Hampshire from 1966 to 1968, when he became an Assistant Attorney General of NewHampshire. In 1971, he became Deputy Attorney General and in 1976, Attorney General of New Hampshire. In 1978, he was named an Associate Justice of the Superior Court of New Hampshire, and was appointed to the Supreme Court of New Hampshire as an AssociateJustice in 1983. He became a Judge of the United States Court of Appeals for the First Circuit on May 25, 1990. President Bush nominated him as an Associate Justice of the Supreme Court, and he took his seat October 9, 1990.
* * * Clarence Thomas, Associate Justice, was born in the Pin Point community of Georgia near Savannah June 23, 1948. He married Virginia Lamp in 1987 and has one child, JamalAdeen, by a previous marriage. He attended Conception Seminary and received an A.B., cum laude, from Holy Cross College, and a J.D. from Yale Law School in 1974. He was admitted to law practice in Missouri in 1974, and served as an Assistant Attorney General of Missouri from 1974–1977, an attorney with the Monsanto Company from 1977–1979, and Legislative Assistant to Senator John Danforth from 1979–1981. From 1981–1982, he served as Assistant Secretary for Civil Rights, U.S. Department of Education, and as Chairman of the U.S. Equal Employment Opportunity Commission from 1982–1990. He became a Judge of the United States Court of Appeals for the District of Columbia Circuitin 1990. President Bush nominated him as an Associate Justice of the Supreme Court, and he took his seat October 23, 1991.
* * * Ruth Bader Ginsburg, Associate Justice, was born in Brooklyn, New York, March 15, 1933. She married Martin D. Ginsburg in 1954, and has a daughter, Jane, and a son, James. She received her B.A. from Cornell University, attended Harvard Law School, and received her LL.B. from Columbia Law School. She served as a law clerk to the Honorable Edmund L. Palmieri, Judge of the United States District Court for the Southern District of New York, from 1959–1961. From 1961–1963, she was a research associate and then associate director of the Columbia Law School Project on International Procedure. She was a Professor of Law at Rutgers University School of Law from 1963–1972, and ColumbiaLaw School from 1972–1980, and a fellow at the Center for Advanced Study in the Behav-ioral Sciences in Stanford, California from 1977–1978. In 1971, she was instrumental inlaunching the Women’s Rights Project of the American Civil Liberties Union, and served asthe ACLU’s General Counsel from 1973–1980, and on the National Board of Directors from 1974–1980. She was appointed a Judge of the United States Court of Appeals for the District of Columbia Circuit in 1980. President Clinton nominated her as an Associate Justice of the Supreme Court, and she took her seat August 10, 1993.
Stephen G. Breyer,
Associate Justice, was born in San Francisco, California, August 15, 1938. He married Joanna Hare in 1967, and has three children - Chloe, Nell, and Michael. He received an A.B. from Stanford University, a B.A. from Magdalen College, Oxford, and an LL.B. from Harvard Law School. He served as a law clerk to Justice Arthur Goldberg of the Supreme Court of the United States during the 1964 Term, as a SpecialAssistant to the Assistant U.S. Attorney General for Antitrust, 1965–1967, as an Assistant Special Prosecutor of the Watergate Special Prosecution Force, 1973, as Special Counsel ofthe U.S. Senate Judiciary Committee, 1974–1975, and as Chief Counsel of the committee, 1979–1980. He was an Assistant Professor, Professor of Law, and Lecturer at Harvard Law School, 1967–1994, a Professor at the Harvard University Kennedy School of Government, 1977–1980, and a Visiting Professor at the College of Law, Sydney, Australia and at the University of Rome. From 1980–1990, he served as a Judge of the United States Court of Appeals for the First Circuit, and as its Chief Judge, 1990–1994. He also served as a member of the Judicial Conference of the United States, 1990–1994, and of the UnitedStates Sentencing Commission, 1985–1989. President Clinton nominated him as an Asso-ciate Justice of the Supreme Court, and he took his seat August 3, 1994.
* * * Samuel Anthony Alito,
Jr., Associate Justice, was born in Trenton, New Jersey, April 1, 1950. He married Martha-Ann Bomgardner in 1985, and has two children -Philip and Laura. He served as a law clerk for Leonard I. Garth of the United States Court of Appeals forthe Third Circuit from 1976–1977. He was Assistant U.S. Attorney, District of New Jersey, 1977–1981, Assistant to the Solicitor General, U.S. Department of Justice, 1981–1985, DeputyAssistant Attorney General, U.S. Department of Justice, 1985–1987, and U.S. Attorney, District of New Jersey, 1987–1990. He was appointed to the United States Court of Appeals for the Third Circuit in 1990. President George W. Bush nominated him as an AssociateJustice of the Supreme Court, and he took his seat on January 31, 2006.
* * * Sandra Day O’Connor (Retired), Associate Justice, was born in El Paso, Texas, March 26, 1930. She married John Jay O’Connor III in 1952 and has three sons - Scott, Brian, and Jay. She received her B.A. and LL.B. from Stanford University. She served as Deputy County Attorney of San Mateo County, California from 1952–1953 and as a civilian attorney for Quartermaster Market Center, Frankfurt, Germany from 1954–1957. From 1958–1960, she practiced law in Maryvale, Arizona, and served as Assistant Attorney General of Arizona from 1965–1969. She was appointed to the Arizona State Senate in1969 and was subsequently reelected to two two-year terms. In 1975 she was elected Judgeof the Maricopa County Superior Court and served until 1979, when she was appointed to the Arizona Court of Appeals. President Reagan nominated her as an Associate Justice of the Supreme Court, and she took her seat September 25, 1981. Justice O’Connor retired from the Supreme Court on January 31, 2006.
[The foregoing was taken from a booklet prepared by the Supreme Court of the United States,and published with funding from the Supreme Court Historical Society.]
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