Habeas Not a Right Pt II

Our Attorney General, ladies and gentlemen:

GONZALES: There is no express grant of habeas in the Constitution. There is a prohibition against taking it away. But it's never been the case, and I'm not a Supreme --

SPECTER: Now, wait a minute. 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?

GONZALES: I meant by that comment, the Constitution doesn't say, "Every individual in the United States or every citizen is hereby granted or assured the right to habeas." It doesn't say that. It simply says the right of habeas corpus shall not be suspended except by...

Gonzales is technically correct - the best kind of correct. Our Constitution does not explicitly grant the right of habeas corpus to its citizens. It does guarantee that the right to habeas corpus - which apparently no one actually has - shall not be suspended except during times of insurrection or invasion, but that doesn't mean that we the people actually retain the right. I've seen full arguments articulating this position, and they rely on congressional authorization of scopes of habeas corpus.

Gonzales' reading is exceedingly convenient, isn't it? The Bush Administration doesn't believe in the right to challenge your detention, so it's head lawyer contorts himself thusly. Perhaps he should be reminded of the 9th Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

That seems clear enough, eh? The really radical thing about America, you see, was that the government of the United States doesn't grant us rights, but rather guarantees them. Our rights are granted by our creator, or by virtue of our shared humanity if you prefer. Rather than our citizens having a set number of rights, it is our government whose powers are enumerated and thereby constrained. We the people retain all the rights not explicitly given to our government, which, at the time of its inception, made America a radical nation indeed.

Just to drive home how scandalous we should view Alberto Gonzales' statement, the following quote from James Madison is useful:

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system...

Alberto Gonzales is the avatar of Madison's concern. Yoo's theory of the Unitary Executive is the founder's worst nightmare.

Finally, we have the following comment, via Kevin Drum:

There is indeed no bottom to this Administration's sophistry. So here's something to wonder about. Amendment IV to the US Constitution says "no warrants shall issue, but upon probable cause." It doesn't explicitly say only the courts can issue warrants. Nor does Article III say "only courts can issue warrants" in so many words. The word warrant does not appear in the main text of the constitution. I assume this is because we inherited a common-law practice from England that nobody thought needed to be written down. But I don't see why the Gonzales-Yoo school would not declare at some point that the executive branch can issue "warrants" too. Presto! Instant Fourth Amendment compliance! Of a kind.

I've grown into a hearty dislike of Alberto Gonzales. Who could have thought that we'd be nostalgic for Ashcroft?