more on Gonzales Questions Habeas Corpus

[David Farber <dave () farber net>]

Begin forwarded message:

From: Thomas Lord <lord () emf net>
Date: January 24, 2007 12:37:27 PM EST
To: dave () farber net, br2 () u washington edu
Cc: ip () v2 listbox com
Subject: Re: [IP] Gonzales Questions Habeas Corpus

“You may be treading on your interdiction of violating common sense,”  
is a rather wry statement when made from one legal scholar to another.

Why isn't what Gonzales said there common sense -- it is almost  
tautological.   It is quite right that the Constitution does not  
claim to construct a "right of habeas corpus".  That power of the  
court, as far as I can tell, was simply recognized, by the time of  
the drafting, as part of the essential nature of any sovereign court  
-- it is the court's foundational claim to sovereignty.   The culture  
still widely remembered, then, that there had been a time before  
habeas -- that it emerged in the process of constructing the very  
concept of a modern court and that it survived in spite of (or  
because of) perpetual tension with competing claims of sovereignty.    
By the time of the founding of the US, habeas was already, by then, a  
concept "owned" by the court:  law could modify or to a degree  
regulate its practice (because judges are citizens, too) but,  
fundamentally, its detailed meaning has always been and will always  
be an emergent property of the professional field of jurisprudence:   
try to take away the court's ownership of habeas and lots of  
important judges will start challenging your claim to sovereignty.

It's no accident that habeas, of all principles of jurisprudence, is  
given such central attention in the constitution.    The social  
engineering hack is:  (step 1) create judgeships and place widely  
respected, learned scholars in those seats;  (step 2) acknowledge  
that those seats are sovereign courts and, therefore, should a  
citizen be deprived of liberty, these courts (those scholars) have  
the power to demand the matter of that citizen (including the citizen  
himself) be brought before them and transfered to their  
sovereignty.   The court is the perpetual last resort for protecting  
individual liberty -- they have an infinite right to look into any  
matter where someone is deprived of liberty and they have an infinite  
(on paper and in public acclaim) capability to rescue any citizen  
from a deprivation of liberty.   Habeas is basically a declaration,  
by sovereign courts, that says: "We are free to look into any matter  
we like and free any citizen who is kept prisoner.   If you refuse us  
in such matters, we will declare your government illegitimate."

None of that means, as Gonzales correctly explains, that habeas writs  
are an entitlement.   None of that means, as he implies, that a wise  
court will hand out writs automatically, or in any particular case.    
These are learned scholars, the hope goes.   It's always a judgment  
call.   Habeas is a right of the court and the US Constitution simply  
regulates the conditions under which it can be suspended.    And  
even, regarding those regulations, SCOTUS has already signaled  
(loudly) that it won't automatically take the legislature and  
executive's word that an insurrection or foreign invasion sufficient  
to suspend habeas exists -- habeas is the foundation of all of the  
court's operational powers and therefore isn't something judges treat  
casually.


-t


David Farber wrote:
> Begin forwarded message:
>
> From: Bradley Roberts <br2 () u washington edu>
> Date: January 23, 2007 10:45:47 PM EST
> To: dave () farber net
> Subject: Gonzales Questions Habeas Corpus
>
> http://baltimorechronicle.com/2007/011907Parry.shtml
>
>
> In one of the most chilling public statements ever made by a U.S.  
> Attorney General, Alberto Gonzales questioned whether the U.S.  
> Constitution grants habeas corpus rights of a fair trial to every  
> American.
>
>
> Responding to questions from Sen. Arlen Specter at a Senate  
> Judiciary Committee hearing on Jan. 18, Gonzales argued that the  
> Constitution doesn’t explicitly bestow habeas corpus rights; it  
> merely says when the so-called Great Writ can be suspended.
> “There is no expressed grant of habeas in the Constitution; there’s  
> a prohibition against taking it away,” Gonzales said.
> Gonzales’s remark left Specter, the committee’s ranking Republican,  
> stammering.
> “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.
> While Gonzales’s statement has a measure of quibbling precision to  
> it, his logic is troubling because it would suggest that many other  
> fundamental rights that Americans hold dear also don’t exist  
> because the Constitution often spells out those rights in the  
> negative.
> For instance, the First Amendment declares that “Congress shall  
> make no law respecting an establishment of religion, or prohibiting  
> the free exercise thereof; or abridging the freedom of speech, or  
> of the press, or the right of the people peaceably to assemble, and  
> to petition the Government for a redress of grievances.”
>
> continued.....
>
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