Another great moment in democracy, brought to you today by Attorney General Alberto Gonzales:
[T]he Constitution doesn’t say that every individual in the United States or every citizen has or is assured the right of habeas corpus. It doesn’t say that. It simply says that the right of habeas corpus shall not be suspended.
I saw that on C-Span last night. This guy makes me want to upchuck. He had a very skeptical audience response.
He doesn’t sound qualified to be a lawyer, let alone the AG.
I agree with some who say he should be impeached.
…what.
Actually, what the Suspension Clause says is that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended . . . .” Art I, sec. 9.
Bear in mind that the “privilege” in the Suspension Clause is not the individual’s privilege to petition, but the courts’ privilege to grant.
A writ of habeas corpus ad subjiciendum is an extradordinary common law writ. 3 William Blackstone, Commentaries, at *131-32. It is always within the power of the legislature to derogate common law by statute–in this case, to circumscribe the power of the judiciary to grant a common law writ. The Suspension Clause is a restraint upon Congress’s power to derogate by statute the judiciary’s power to grant a writ of habeas corpus, not a restraint upon Congress’s power over an individual petitioner.
The right of an individual to petition, if there is such a thing, is protected by the Ninth Amendment.
Therefore, Mr. Gonzales was literally correct in his statement. The extent to which there is an individual right to petition for a writ of habeas corpus is not expressed in the Constitution, but rather turns on whether the individual had a right to petition outside of the perimeter of the Constitution that the Ninth Amendment subsequently reaffirms.
But, Cory, would he not also be literally correct in interpreting the constitution as failing to grant to any individual the right to free expression? After all, it states only that “congress shall make no law,” not that individuals possess such a right. Isn’t it fair to say that the incorrectness of such a statement would be on par with the incorrectness of his statement on habeas corpus?
Damnit, Waldo, you let the cat out of the bag. We have no rights. Liberals were able to deceive the American public for 220 years, but now at last the truth will be known, and the lawyers will win.
Why Waldo, why do you hate freedom? Why?
Mr. Jaquith,
I have to deny your premise. You and I could talk colloquially about a First Amendment right to freedom of speech (I’ve taken liberties with your phrase “freedom of expression” to more closely conform to the text of the First Amendment and avoid a problem of semantics) because the overbroad vernacular construction of the First Amendment accommodates such inaccuracy. But I would never assert in a legal setting a First Amendment right to freedom of speech without first defining what it was I meant by that phrase.
For example, in a legal setting, not only would the Attorney General be literally correct that there is no right to freedom of speech, but prior to the Court’s jurisprudence that the Fourteenth Amendment incorporated the First Amendment to apply against the states (and certainly before the Fourteenth Amendment had been ratified), he would have been absolutely correct because states could abridge speech in whatever manner they wanted. If you want to expand the First Amendment beyond Congress to the states, you have to have a hook to hang that hat on. Likewise, if you want to extend that restriction beyond Congress to the other federal branches, you’re going to need a hook to hang that hat on.
The hook I would use for the second hat is that the Executive is prohibited from making a law that abridges speech not by the First Amendment, but by Article I, Section 1, which vests all federal legislative power in the Congress. However, to the extent that the president has non-legislative, executive power to abridge speech (I’m not saying whether he does or not; I’m only inviting you to consider abstractly the possibility that he could), there is no right to freedom of speech because neither the First Amendment nor Article I would prohibit the exercise of that power. (I could also analyze the Judiciary, but I think you get the point.)
Similarly, I would never assert in a legal setting that an individual has an Article I right to petition for habeas (though I might argue that a court has an Article I right to consider a habeas petition filed in it).
But the difference between right to freedom of speech and right to petition for habeas is even wider, in the abstract. If there is a First Amendment right to freedom of speech, it operates to restrain the government from acting against the rights of the people. Whatever the Suspension Clause does, it only operates to restrain one part of the government from acting against the prerogative of another part of the government. Only through the Ninth Amendment could the Constitution restrain any part of the government from acting against the rights of the people when it comes to petitioning for habeas.
I appreciate that this is all abstract and hypertechnical. But the fundamental difference between our views of Mr. Gonzales’s statement is our disagreement over whether Mr. Gonzales was speaking in a vernacular sense or a legal sense. Beyond that disagreement, I would still say that there is a difference between what Mr. Gonzales said about habeas and your hypothetical about speech. The Court has been very generous in its interpretation of the First Amendment. The Court has been miserly in its interpretation of habeas. There’s a swath of precedent where the Court has restricted the availability habeas as a constitutional remedy running from Ex Parte McCardle and Tarble’s Case. So, I think that precedent on this issue moves the AG closer to the correctness side of the spectrum on habeas than it would on the speech spectrum.
So in other words, the only thing we have standing between the liberties we now enjoy and a greatly expanded power on behalf of the legislative and executive branches to arbitrarily limit those liberties is the respect the nine justices du jour of the SCOTUS hold for the principle stare decisis et non quieta movere.
We’re screwed.
Thank heavens Gonzalez’s interpretation is not the interpretation that the majority of legal scholars (now and through the years) embrace.
I’ll be so happy when Gonzalez and the few neocons that embrace this view are placed back into the extreme fringe from which they crawled out of….and where they belong.
I have heard some say that Gonzalez will probably be a Mafia lawyer when he leaves public service. He should fit in nicely there with his “interesting” legal interpretations…..
Thank heavens even this conservative Supreme Court has departed from Gonzalez’s interpretation on the cases presented thus far….
Buzz….
Mr. Sharp,
That the the Supreme Court of the United States has the final word on interpreting the Constitution is settled. Marbury v. Madison, Martin v. Hunter’s Lessee, and Cooper v. Aaron pretty much make that clear, through process of elimination, if nothing else.
Of course, there are non-judicial remedies, like rebellion. That didn’t work well for the Cherokee Nation in the 1830s, for the South in the 1860s, or Timothy McVeigh in the 1990s.
Gonzalez is a neocon?
I think that word has devolved to the point where it has no real meaning left. Like “fascist,” it’s been reduced to a nonspecific pejorative.
Judge
. . . . or like the words liberal, elite? or agenda?
Judge Smails,
Gonzalez might be a neocon for all I know, but I’m with you that in this context, it wouldn’t make sense to call him one. I can’t tell whether or not Mosquito had intended to label him one, but in the abstract, it is often tossed around in much the same way as “fascist” (I wonder how many people who use the term “islamofascism” can even tell me what “fascism” means), liberal, “activist judges”, etc., thus muddling our discourse.
It’s really a pet peeve of mine.
Anyway, very interesting discussion.
Both sides use phrases and buzzwords that poll well to describe themselves (and that poll poorly to describe the other side.)
It’s been going on for a lttle while now. I can remember from a US History course I took that a key rhetorical advantage possessed by those who wanted to adopt a new constitiution in the late 18th-century was that they were the “Federalists.” They managed to hang the term “anti-Federalists” around the necks of those opposed. The rest is history.
As long as we’re clearing the air of stupid word usage…could we include all that “dead lanuguage” used by lawyers. It always leaves me with the feeling that I have arrived at someone’s fraternity house without the secret handshake.
Let me start. Alberto Gonzales is a danger to my liberties, and I have the right to see the evidence which may be used to against me. In Virginia, we are sworn to do so with sword in hand, and foot on neck, if necessary.
Bubby,
Amen.
I’m a little confused. By “dead language,” do you mean the latin terms used in legal jargon? Or do you mean the jargon itself?
I mean Latin. As in, my lawyer saying, “Oh yeah, my client is innocent, show me the dead man!”