Flutterby™! : Gonzales loses it 2007-01-24 15:44:57.326714+00

Gonzales loses it

2007-01-24 15:44:57.326714+00 by Dan Lyke 4 comments

Holy crap: Alberto Gonzales says the Constitution doesn't require habeas corpus:

"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.''

#Comment Gonzales is right, in a very limited sense made: 2007-01-24 18:16:35.41638+00 by: Jack William Bell [edit history]

Basically there is no wording in the Constitution regarding a right of habeas corpus. There is wording that supports such a right in parts of the 'bill of rights' and elsewhere (for example, the wording regarding suspending same), but nothing that clearly lays it out as a right.

However the Constitution is not the only basis of law in the USA! A goodly percentage of US court cases are decided, to some extent, on good old English Common Law; of which habeas corpus is part. This was accepted when this country was founded and was one of the excuses given as to why we didn't need to include the bill of rights into the Constitution; English Common Law already guaranteed most of them (freedom of the press and freedom of religion excepted).

If you take a look at the wording about suspending habeas corpus you see an example of this: Habeas corpus was already accepted as a right under Common Law, therefore the only need anyone saw to mention it was to clearly lay out the circumstances under which it could be suspended.

Which says to me that the core assumption of the legal system and the authors of the Constitution is that Habeas Corpus is required. As you say, law is a matter of building on precedent, and it's clear to me that the precedent that the Constitution is built on requires Habeas Corpus.

C'mon... That's the kind of logic game that my 1st grade teacher used to berate me over. Artcile 1 Section 9 clearly implies that universal habeas is assumed. That's like saying "breathing should only be suspended when under water" means you aren't actually allowed to breath otherwise.

I wonder what part of "reserved to the states respectively, or to the people" he isn't clear on.