Gonzales and Habeas Corpus
Drum is up in arms about the fact that Gonzales said that the Constitution doesn't expressly grant us the right of habeas corpus.
Thing is, technically, Gonzales seems to be right. The right of habeas corpus is presupposed, rather than expressly granted/guaranteed by, the Constitution.
Thing is, in any other administration, we wouldn't have to go to red alert over such a comment. This is just the way lawyers, philosophers, scientists, and math-types talk among themselves when they are talking about technical matters. Distinctions and claims like this are at least interesting even when not important. (E.g. it's interesting that All dogs are mammals doesn't entail there are dogs.)
But with this administration, we DO have to go to red alert. This is exactly the kind of quasi-technicality these criminals might try to exploit for nefarious purposes. (Recall: "there are no plans for invasion on my desk...") Would they really undermine habeas corpus entirely, destroying a cornerstone of our legal system in order to win a small victory in a battle they shouldn't be fighting anyway? You bet they would.
Somebody needs to ask Gonzales point blank whether that was a merely technical observation, or whether he thinks the point is a substantive one with real implications. That is, they need to make sure he acknowledges that there is a right of habeas corpus even though it isn't explicitly guaranteed/granted by the Constitution.
Drum is up in arms about the fact that Gonzales said that the Constitution doesn't expressly grant us the right of habeas corpus.
Thing is, technically, Gonzales seems to be right. The right of habeas corpus is presupposed, rather than expressly granted/guaranteed by, the Constitution.
Thing is, in any other administration, we wouldn't have to go to red alert over such a comment. This is just the way lawyers, philosophers, scientists, and math-types talk among themselves when they are talking about technical matters. Distinctions and claims like this are at least interesting even when not important. (E.g. it's interesting that All dogs are mammals doesn't entail there are dogs.)
But with this administration, we DO have to go to red alert. This is exactly the kind of quasi-technicality these criminals might try to exploit for nefarious purposes. (Recall: "there are no plans for invasion on my desk...") Would they really undermine habeas corpus entirely, destroying a cornerstone of our legal system in order to win a small victory in a battle they shouldn't be fighting anyway? You bet they would.
Somebody needs to ask Gonzales point blank whether that was a merely technical observation, or whether he thinks the point is a substantive one with real implications. That is, they need to make sure he acknowledges that there is a right of habeas corpus even though it isn't explicitly guaranteed/granted by the Constitution.
posted by Winston Smith at
12:53 PM
2 Comments:
Winston,
You get to the heart of this when you say the right of habeas corpus is presupposed, rather than expressly granted/guaranteed by the Constitution.
Most people have a fundamental misunderstanding of what the Constitution is anyhow. It is not, in fact, a granting or guarantee of rights whatsoever. Those rights are, as you say, presupposed to exist. What the Constitution is is a granting of POWER to the government BY THE PEOPLE, since in a democracy the people are sovereign.
As a matter of fact, a lot of the founders didn't even think the Bill of Rights were necessary, and some of them even actively opposed it on the grounds that nefarious forces would claim that the absence of certain rights from any list would be tantamount to their non-existence. Hence, the 9th amendments *penumbra* of rights that are not listed, yet still retained by the people.
Amen, brother.
Testify.
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