Gonzo is at it again. Read the following article and then come back when you’re done. It’s OK, I’ll wait:
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.
I think someone better check the fine print on that supposed law degree of his. We may find that there is a copyright label from Hasbro. I have elsewhere commented on this same subject, but shall reiterate again in the vain hope that Gonzales might be reading. . . .
Mr. Gonzo is quite correct on at least one level: the Constitution of the United States does not, in fact, grant the right of Habeus Corpus. It does indeed only proscribe circumstances under which that right may be suspended. But neither does the Constitution grant a right to Free Speech, to peaceable assembly, nor any other right that we as Americans enjoy. The Constitution merely states that “Congress shall pass no law restricting the right to free speech,” and so on.
That a layman on the street would miss this subtle point would be entirely understandable, if lamentable. That a sitting United States Attorney General misses it is not only unfathomable, it’s dangerous.
The Constitution is predicated on the notions, already spelled out in the Declaration of Independence (and elsewhere):
. . . that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. –That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, . . .
This meaning: the rights of men are preconditions of birth, not the grants of a state. The Constitution is, therefore, an entirely subtractive document. It assumes that our rights already exist and seeks only to spell out the rights which are *not* granted to our leaders. This is a seemingly subtle ~ but substantial ~ shift in logic from what many of us assume. The Administration further confuses this fact when it reads into the Article II rights of the presidency items for which there is no language, as I have outlined briefly before.
The Constitution takes as, well, “self-evident,” that the rights of men cannot be removed. In fact, much of the Constitution was written by men who assumed that they need not be spelled out in any document at all, particularly. That last bit was a major argument in the writing of the Constitution and led to the later adoption of the Bill of Rights over the objections of many. Among the detractors were men like Alexander Hamilton believed that spelling those rights out was superfluous and moreover dangerous.
Why dangerous? Because law is a double-edged sword, sometimes. If the language used in law to describe those rights was too vague in one fashion or too specific in another fashion, someone (like, oh, let’s say, a Texas lawyer named Alberto Gonzales) would use the letter of the law to attempt to constrain the very rights it was designed to uphold. It now seems as though Hamilton’s great fear is in the midst of being realized as I type.
** As a side note, let me point out that the single greatest failure of
almost any attempt at creating democracy elsewhere in the world where
that attempt has failed, no less the attempt to create democracy in
Iraq, is that the framers of those Constitutions invariably miss this
point also. That, and the insistence on putting short term goals such as oil rights into what should be a transcendent document. **
I still have not made my mind up whether Alberto Gonzales and the lawyers of his ilk are fools or villains, but regardless they have no business running the legal affairs of a dignified country. Certainly not the United States.
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