Splitting constitutional hair

Friday, January 26, 2007 at 14:45 | Posted in Legal, USA | 11 Comments

Robert Parry writes in Baltimore Chronicle about a bizarre statement by the US Attorney General Alberto Gonzales. According to Gonzales, the US constitution does not explicitly grant habeas corpus rights:

“There is no expressed grant of habeas in the Constitution; there’s a prohibition against taking it away,” Gonzales said.

The Attorney General was answering questions by the republican senator Arlen Specter at a Senate Judiciary Committee hearing. Specter was apparently caught by a surprise:

“Wait a minute,” Specter interjected. “The Constitution says you can’t take it away except in case of rebellion or invasion. Doesn’t that mean you have the right of habeas corpus unless there’s a rebellion or invasion?”

Gonzales continued, “The Constitution doesn’t say every individual in the United States or citizen is hereby granted or assured the right of habeas corpus. It doesn’t say that. It simply says the right shall not be suspended” except in cases of rebellion or invasion.”

“You may be treading on your interdiction of violating common sense,” Specter said.

This is not exactly the classical case of a half empty glass. Senator Specter may very well be right that Gonzales is in violation of common sense but I think he is bending something more than that. A possible interpretation of his statement could be that he does not think that constitutional rights are to be taken for granted. Once you have gotten them, they can not be taken away but you have to “earn” them first.

If that is what the Attorney General is implying, he is swimming in deep waters. As Robert Parry points out, several other constitunional rights are expressed through a negation as well:

Applying Gonzales’s reasoning, one could argue that the First Amendment doesn’t explicitly say Americans have the right to worship as they choose, speak as they wish or assemble peacefully. The amendment simply bars the government, i.e. Congress, from passing laws that would impinge on these rights.

And while we are in the business of splitting hair, would Mr. Gonzales say that freedom of religion or free speech could be taken away by another branch of government, i.e. the president, bypassing the congress? After all, the amendment explicitly forbids only congress to violate those rights.

via Declan



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  1. So, I read Mr. Gonzales doesn’t want to have the right of habeas corpus. That’s okay with me.

  2. You might change your mind about it if you were held detained without access to due process of law, such as formal charges and fair trial.

  3. I would only want Mr. Gonzales to be denied that right.

  4. Aha. But assuming that he meant what he said, he would hardly make a pretention of habeas corpus. Surely, he must have been including himself. 🙂

  5. As I already said in my Podcast: If politicians want to change rules for the bad of citizens (ie: video surveillance) they should have the changed rules in place for themselves for a time before the rules could be considered for the general public.

  6. I would be happy with 24 hour video surveillance of members of parliament only. 😛

  7. Okay, let’s do that.

  8. I am not going to release your IP if asked by BND 🙂

  9. That’s very honorable of you 🙂

  10. A matter of principle. 😉

    The BND are not likely to ask me, though. They already know all they need to know about you and much more. 😦

  11. I guess you’re right about that, yes.

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