Public Law & Legal Theory
In Boumediene v. Bush, the Supreme Court held that noncitizens detained at Guantanamo Bay have the constitutional privilege of habeas corpus. The case can be given multiple interpretations, including a narrow reading under which it follows straightforwardly from Eisentrager. But Justice Kennedy's majority opinion omits consideration of a factor that plays a role in Eisentrager, namely, the limited constitutional status of the noncitizen. For this reason, the most distinctive element of Justice Kennedy's reasoning is its cosmopolitanism, not its libertarianism. The cosmopolitan elements of Boumediene recall the debate about the use of foreign law to interpret provisions of the U.S. Constitution, of which Justice Kennedy is a major proponent, and it is argued that critics of judicial cosmopolitanism should reject Boumediene as well.
Eric Posner, "Boumediene and the Uncertain March of Judicial Cosmopolitanism" (University of Chicago Public Law & Legal Theory Working Paper No. 228, 2008).