Posted on 01/24/2007 7:45:58 AM PST by SmithL
"The Constitution doesn't say every individual in the United States or every citizen is hereby granted or assured the right of habeas,'' Gonzales told Sen. Arlen Specter, R-Pa., during a Senate Judiciary Committee hearing Jan. 17.
Gonzales acknowledged that the Constitution declares "habeas corpus shall not be suspended unless ... in cases of rebellion or invasion the public safety may require it.'' But he insisted that "there is no express grant of habeas in the Constitution.''
Specter was incredulous, asking how the Constitution could bar the suspension of a right that didn't exist -- a right, he noted, that was first recognized in medieval England as a shield against the king's power to dispatch troublesome subjects to royal dungeons.
Later in the hearing, Gonzales described habeas corpus as "one of our most cherished rights'' and noted that Congress had protected that right in the 1789 law that established the federal court system. But he never budged from his position on the absence of constitutional protection -- a position that seemingly would leave Congress free to reduce habeas corpus rights or repeal them altogether.
(Excerpt) Read more at sfgate.com ...
Don't be too hard on yourself... well, considering your FR name maybe you should be very hard on yourself!
It's not "word games", the Writ predates the Constitution and is neither defined nor granted by it but only recognized. It's scope is a matter of (pre-Founding) English law and (post-Founding) American statutes- not the Constitution.
Justice Scalia mentioned these very points in his Hamdi opinion, and some of the limits of the Writ for citizens:
"...To be sure, certain types of permissible noncriminal detention–that is, those not dependent upon the contention that the citizen had committed a criminal act–did not require the protections of criminal procedure. However, these fell into a limited number of well-recognized exceptions–civil commitment of the mentally ill, for example, and temporary detention in quarantine of the infectious. See Opinion on the Writ of Habeas Corpus, 97 Eng. Rep. 29, 36—37 (H. L. 1758) (Wilmot, J.).
...Several limitations give my views in this matter a relatively narrow compass. They apply only to citizens, accused of being enemy combatants, who are detained within the territorial jurisdiction of a federal court."
this is old news.
Fact is, he is correct. That is because the constitution grants the citizens no rights whatsoever. They are too many to list.
What it does it say what rights the government cannot take away. Which is what he is saying.
>>...Alberto Gonzales testified that habeas corpus -- the right to go to federal court and challenge one's imprisonment -- is not protected by the Constitution. <<
BS. He said no such thing. They are interpreting his testimony to MEAN that, which it clearly does not. I am seeing no quotes around that part of the article. The part that IS within quotes says something completely different.
He isn't playing with words. On the contrary, he is being very precice. It is the editorializing in the article it self that is playing with words.
As Rush used to say, words have meaning. In fact, it has stirred no small amount of debate about what the constitution actually says. That is a good thing.
>>Well, we now have a new boilerplate question for all future nominees to the post of Attorney General: "Does the U.S. Constitution grant the right of habeus corpus?" Anyone who fails to answer "Yes" to that question will not be confirmed by the Senate. <<
Actually, the proper answer to the question should be "Is it true you've stopped beating your wife?"
>>Well, we now have a new boilerplate question for all future nominees to the post of Attorney General: "Does the U.S. Constitution grant the right of habeus corpus?" Anyone who fails to answer "Yes" to that question will not be confirmed by the Senate. <<
Actually, the proper answer to the question should be "Is it true you've stopped beating your wife?"
A lawyer's worst nighmare: Being lectured on the Constitution by Arlen Specter.
This particular right is yours courtesy of our clinging to the English common law. It was meant to keep the nasty old king of england from sending you on a one way journey to the dungeon.
If we should ever decide to amend the constituion it could be extinguished. Contrast that with the right to life, liberty and to the pursuit of happiness. There is a difference.
Semper Fi
An Old Man
As for your comment regarding the "granting" of the right, that is where I think the bulk of the disagreement lies. In the minds of some thinkers, the recognition of the Writ as a pre-existing right is the equivalent of it being granted by the Constitution. In their minds, it is indeed a matter of "word games" to squabble over the issue of recognition vs. granted. I realize you disagree with that, and I will admit publicly that those authors are not generally thought of in other areas as being on the "right" side of things, but it's a far grayer area than I think you are suggesting.
No. Alberto got it wrong. John Marshall demonstrated this in the 1808 ruling of Ex Parte Bollman and Swartwout. According to Marshall, a constitution that merely prohibits the writ's suspension without obliging its exercise among the powers of the courts would effectively permit a state of suspension to exist though none had been enacted. This would render the clause moot and meaningless.
True, but the right to a fair trial or hearing follows almost immediately from the basic principles of the natural law or basic notions of justice.
He isn't playing with words. On the contrary, he is being very precice. It is the editorializing in the article it self that is playing with words.
Playing with words is often very precise - he has to choose his words carefully to be technically correct on a minor point in order to shore up his larger, incorrect point.
Alberto is saying that, because habeas corpus is not explicitly stated in the Constitution, it is not a protected right. It is the very crux of his confrontation with Specter. Are you denying that?
Three things here.
One, you missed the entire point of my post.
Two, Heroic revolutionaries are not always traitors, either.
Three, there was never any attempt to destroy any Union. There was the war to destroy the Confederacy.
These points will be lost on you, as you never, repeat, never are open to any discussion other than your own limited understanding of the history of this country. So, keep it to yourself.
More denial. -- States were infringing on the rights of freed slaves to own & carry arms. -- That is why the 14th was passed. [Anyone can see your Lie. If Marshall were "rebuked" there would have been no need for the 14th. However, knowing he was correct about what the Constitution meant required them to AMEND the Constitution. What fool would have amended it if there was no need?]
-- Your anti gun POV is becoming ever more evident justshutup. [Your lying is becoming ever more evident. Why would I join the NRA if anti-gun?]
Whatever. - The fact remains, - Marshall backed the slave states in 1833. [Yet another Lie. Barron v Baltimore had nothing to do with slavery. Marshall would have NEVER supported secession either.]
Yes, well I'm not sure what he is doing or why he is trying to make the distinction. It seems to me a distinction without a difference as a practical matter. It is clearly protected by the constitution whether it is granted there or not.
Maybe I'm missing something.
No I got the point of your post which was an attempt to justify destruction of the Union by the Traitors of 1860.
The Insurrection was put down as the Constitution specifies may be done. NONE of the Founders supported the idea that secession was legal. Washington EXPLICITLY warned of the danger in his Farewell Address.
Had the Slavers tried a legal means of changing the Constitution they might have a leg to stand on but they did not preferring to attack US forces and plunge the South into a century of unnecessary destruction and poverty. All because they preferred slavery to the Union.
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