Thursday, January 03, 2008

On Language: Habeas Corpus and Constitutional Text

I meant by that comment, the Constitution doesn’t say, “Every individual in the United States or every citizen is hereby granted or assured the right to habeas.” It doesn’t say that. It simply says the right of habeas corpus shall not be suspended except by —
Alberto Gonzales

In a way Alberto Gonzales is quite right: the Constitution does not explicitly grant Habeas Corpus.

The 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.

Of course, by that same logic Amendment I does not grant freedom of assembly, Amendment II does not grant the right to bear arms, Amendment IV does not grant protection from search and seizure, Amendment VII does not grant trial by jury and Amendment XV does not grant voting rights. (It's true -- read 'em!)

The completely naive defense against this clever rules-lawyering is that it sure seems strange to include passages in the Constitution with no meaning. But we are not completely naive. The Constitution is written the way it is for good reason. And if you aren't sure what that reason is Amendment IX provides a hint:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The Constitution does not grant rights to the people as much as it grants rights and places restrictions on the government. When the Constitution was written the right to Habeas Corpus had already existed for at least 500 years, having been formally written-up in the Magna Carta of 1215.

The fact that the Constitution does not expressly grant certain rights (shorthand I am guilty of using) makes a powerful statement about the nature of those rights: that they exist before and outside of our modern government. Rights granted by the government can be repealed; intrinsic rights can not be. The government does not grant us poor peasants rights as it sees fit, instead we force the government to keep it's hands off our pre-existing rights.

You don't have to take my word for it. Federalist Paper #84 explains why the original Constitution did not include a Bill of Rights at all.

The establishment of the writ of habeas corpus, the prohibition of ex post facto laws, and of TITLES OF NOBILITY, to which we have no corresponding provisions in our constitution, are perhaps greater securities to liberty and republicanism than any it contains.
[...] The observations of the judicious Blackstone in reference to the latter [Habeas], are well worthy of recital. "To bereave a man of life (says he) or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person by secretly hurrying him to goal, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government." And as a remedy for this fatal evil, he is every where peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls "the BULWARK of the British constitution."

Gee, Habeas sounds kinda important. But we continue:

It has been several times truly remarked, that bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince.
It is evident, therefore, that according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations. [...]
I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?

Here we see exactly why Alberto Gonzales' words were a purposeful misrepresentation of the truth that should have gotten him impeached on the spot. The Constitution does not grant certain rights because the government cannot grant that which all people naturally already have. Nor can the government restrict rights it has no power to restrict. As we see above, Hamilton believed that including rights in the Constitution only allowed for the plausible fiction that the government decides what rights we possess at all, when it is the people who grant the government its rights, not the reverse.

Sadly the Bush Administration has an antagonistic view of the Constitution and the Justice Department works not to enforce it but to actively undermine it by purposely interpreting it as exactly opposite the intended meaning. Once again the familiar question arises: are they ignorant or dishonest?

Gonzales thought (or pretended) he was on to something when he pointed out that the Constitution does not explicitly grant Habeas Corpus, as if that justified the denial of Habeas rights. Nothing could be further from the truth, a self-evident fact for any good-faith actor with a basic understanding of the Constitution and its history.


Anonymous said...

Very interesting points. Their logical is flawed.

Autumnal Harvest said...

This is a pretty old post, so I'm not sure if you'll read this, but your post brings up a general issue I've been thinking about.

Your post is well reasoned, and entirely historically accurate, and I ask the following not as a criticism, but as an honest question that I'm unsure about: does it serve any purpose? Is there a value in making these meticulous and well-reasoned arguments? The idea that U.S. citizens don't have the right to habeus corpus, and that there's this apparently meaningless clause in the Constitution, is so ludicrously bad and nonsensical, that it seems like the appropriate response is to snort derisively and call Gonzalez an idiot (or perhaps begin impeachment proceedings for incompetence). To begin discussing the natural rights philosophy of the Framers, citing the Federalist papers, and so on, seems to give Gonzalez's argument more respect than it deserves.

I have mixed feelings, because the internet already has too much ad hominem and poorly-reasoned attacks, and I really am generally very much in favor of laying out careful and meticulous arguments. But it seems to me that in recent years, people with common sense have spent way too much time refuting arguments that are not just wrong, but completely insane. Cheney says that the invasion of Iraq was justified because Hussein was a killer android from the future, and people spend great amounts of time explaining how this is untrue, how time travel is impossible, how Hussein's autopsy showed a human body, etc. . . Then, the next day, Cheney says that, actually, Hussein was allied with cyborg bug-men from Venus, and the cycle repeats. It's an endless game of bad-argument-Whack-a-Mole. Or, to take only slightly less fantastical arguments, if someone thinks that a massive wiretapping program spying on every American, without use of warrants, meets the standards of the 4th Amendment, or that drowning someone, but stopping just before they die, isn't really torture, I'm not sure that this person has any reasoning abilities that can be reached by rational argument.

Margalis said...

I get e-mailed whenever comments are posted, so I read everything eventually.

I agree that some of this stuff is so plainly stupid that the only people who buy into it are either idiots or acting in bad faith. However I do think it's nice to build up a semi-permanent set of resources that people can point to to refute these notions.

I try to write stuff like this here rather than in comments on other websites for that reason. Those comments are transitory and have to be repeated week after week, whereas I can just point to this and be done with it.

There is overhead in producing these but I enjoy writing them and also the research and learning that is involved. (Which is often quite substantial)

With a lot of destructive ideas, such as the notion that some kinds of taxes are "double taxation", I think they start as purposely bad-faith arguments but then people who are less informed buy into them. I can certainly see people eventually, after enough repetition, buying into the logic that the Constitution doesn't technically grant certain rights. So while those initial bad-faith actors can never be swayed maybe some of the hangers-on can be.