Friday, January 19, 2007

Let's Review the Bill of Rights, Shall We?

Think Progress » Gonzales: ‘There Is No Express Grant of Habeas Corpus In The Constitution’

Chilling words from Alberto Gonzales, and some props earned by Arlen Specter:

Yesterday, during Senate Judiciary Committee hearings, Attorney General Alberto Gonzales claimed there is no express right to habeas corpus in the U.S. Constitution. Gonzales was debating Sen. Arlen Specter (R-PA) about whether the Supreme Court’s ruling on Guantanamo detainees last year cited the
constitutional right to habeas corpus. Gonzales claimed the Court did not cite such a right, then added, “There is no express grant of habeas in the Constitution.”
Specter pushed back. “Wait a minute. The constitution says you can’t take it away, except in the case of rebellion or invasion. Doesn’t that mean you have the right of habeas corpus, unless there is an invasion or rebellion?” Specter told Gonzales, “You may be treading on your interdiction and violating common sense, Mr. Attorney General.”

As Article I, Section 9, Clause 2 of the Contitution says: “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.”

I tend to prefer reading the language of the Constitution as plainly as possible. This isn't like the Bible, which has gone through so many translations and interpretations that anyone cann read anything into it. We have the Constitution with the exact language the Founding Fathers used in 1787. All I see here is a prohibition against government suspension of habeas corpus--how can the government be expressly prohibited from suspending a right if that right does not actually exist? Is this really how Mr. Gonzales sees the Constitution: that the People have no express rights unless such rights are specifically granted to them by the Constitution?

It may be instructive to take another look at the Bill of Rights--all emphases and bracketed additions are mine.


  • Article I. 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.
  • Article II. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed [by the government].
  • Article III. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
  • Article IV. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated [by the government], and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
  • Article V. No person shall be held to answer for a capital, or otherwise infamous crime [by the government], unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
  • Article VI. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
  • Article VII. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
  • Article VIII. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted [by the government].
  • Article IX. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
  • Article X. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.


See where I'm going with this? The Bill of Rights does not grant rights to the People. It withholds rights from the government.

1 comment:

Todd said...

Alberto Gonzales brings shame to the name of "Lovetteer". I think every time he debases the Constitution, he should be forced to say ten Lovett cheers as penance. Or maybe he could try actually doing a decent job, since I really don't want to hear such things from him.

Also, unless I am remiss in my Googling skills, the Lovett cheer appears in its entirety maybe once on the whole internet. As a Dave Wells once said, "Za?"