Saturday, January 20, 2007

You Really Can’t Prove A Negative, Can You?

I’m sure you’ve heard by now that Attorney General Alberto Gonzales has, in a terrifying bit of hair-splitting, said that Americans have no explicit right to habeas corpus: the Constitution doesn’t grant us the right to habeas corpus, says he, but merely says such a right can’t be suspended.

Forget for a moment the obvious question of how the government can be forbidden to suspend a right which doesn’t exist. What frightens me the most is that by Gonzales’ reasoning, Americans have almost none of the rights we take for granted.

Think we have freedom of speech and the press? Read what the first amendment in the Bill of Rights says:

Congress shall make no law respecting an establishment of religion,or prohibiting the free exercise thereof; or abridging the freedomof speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
This does not say Americans have freedom of speech; it merely says Congress can’t pass a law abridging it. Same goes for the right to a free press, the right to peaceably assemble, or to petition the government for the redress of grievances: nowhere does the Constitution say we have those rights; it merely says Congress can’t take them away.

Nor does the Constitution grant the explicit right to bear arms; it merely says such a right shall not be infringed.

Think you have the right to vote? Not according to the fifteenth amendment (and a Gonzales-style interpretation thereof):

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color,or previous condition of servitude.
Got that? It doesn’t say you have the right to vote; it merely says such a right can’t be denied on account of your color or race.

When you get right down to it, there are very few rights which the Constitution explicitly says people have; there are mostly rights which the government can’t take away. And according to Gonzales, such rights aren’t really rights at all.


Blogger Anne O'Neimaus said...

"We hold these truths to be self-evident..."

Sure, it's not part of the Constitution. But the Declaration of Independence pretty much established the groundwork for the founding of this country. Once the government bureaucracy strays too far from that seminal conception, it runs an ever-increasing risk of getting the treatment King George got from the early Americans.

That is, after all, the ultimate reason for the right to bear arms. The power to reform the government by force, if necessary.

Hopefully, things will never get that bad. I had hopes for changes with a non-Republican congress, but it seems the Democrats are just as spineless and wishy-washy as ever.

8:10 PM  
Anonymous Brad Warbiany said...

I don't exactly think I agree with any of the reasoning for why Gonzales said what he said (i.e. I think he was saying that the Executive can do whatever the f*** he wants).

But the Constitution doesn't grant you any rights. Rights are inherent, and the Constitution just tells the Government what powers it does and doesn't have.

Granted, Gonzales and this administration don't seem to believe there is a limit on government power, so we've got a lot of reasons to criticize what they're doing...

8:31 PM  
Blogger Jennifer said...

In context, it sounds to me like Gonzales is claiming that since there's no Constitutionally granted right to habeas corpus, the government need not concern itself with it in regard to certain people it has imprisoned.

8:37 PM  
Blogger Anne O'Neimaus said...

Of course, the right of Habeus Corpus was assumed by the framers to be a part of existing law, that predated the Constitution. The Constitution explicitly states that the government (and, by extension, the Constitution) cannot suspend it. Presumably, they meant cannot supercede it, either.

12:26 PM  
Anonymous Anonymous said...

Clearly you are missing the point here.

The Constitution says that Congress can't do anything to take those rights away.

Gonzales is the Attorney General. It's like, totally different if he does it.

[/gallows humor]

Seriously, the only thing I find scarier than an AG of the US saying such a thing is the fact that I find it completely unsurprising.

BTW, Gonzales needs a remedial course on the 9th Amendment.

3:17 PM  
Blogger Jennifer said...

What's really sad, Brian, is that your statement, if taken seriously, is no more fundamentally dishonest than Gonzales'.

6:30 PM  
Blogger Jody McAllister said...

You all make excellent points. We have only ourselves to blame for allowing this administration to do whatever it wants. What's really.... (insert your own adjective here) is that there are many of us who recognize the absurdity of such things, and are doing nothing about it. Besides posting in blogs, of course. And I certainly mean to include myself when I say "us".

9:39 PM  
Blogger Gothamimage said...

Gonz is very weak.

9:58 PM  
Anonymous TC said...

A very general observation,

Seems out constitutional rights have indeed been trampled over the last 20 years, even more so over the last 10!

The 4th amendment, I think that has been completely overturned by SCOTUS right? They have allowed any SWAT team to invade your home at any time using of course excessive force!

The 5th is damaged, split scotch all over Teddy it did!

We condone "Nifonging" from the top attorney in the land, oh all mike did was give us a real name to call it. It's not just in NC that such happens.

10:47 PM  
Anonymous Shem said...

And why exactly didn't the Democrats immediately start procedings to impeach Gonzales? The only way he could disrespect the Constitution that he swore to protect and uphold more than this would be to use it to wipe up after his most recent wet dream about locking away brown peop--uh, "terrorists" without a trial.

2:58 PM  
Anonymous Crusader AXE of the Lost Causes said...

Jefferson said something about the blood of martyrs and the tree of liberty. The inherent rights claimed in the Declaration of Independence were based on English Common Law, the unwritten English constitution and so on going back to the Magna Carta -- which basically denied the monarch absolute power.

George W. Bush is an excellent parallel to George III. He's ignorant, petulant and a great example of our in-bred Eastern Establishment. His cabinet members are great exemplars of the sort of people who got Georgie Boy all screwed up. Perhaps a better example is Charles I --as you'll recall, things went badly for him.

Anyway, I think we are about 16 votes short of the impeachment numbers. However, Cheney and Gonzo would look lovely in the well of the Senate, explaining the meaning of the word is...

Still, we can dream. It's not impossible if a few Rs find some cojones. As we advocate at The Defeatists, Peolosi in '07...

6:41 PM  
Blogger Anne O'Neimaus said...

A thoughtful article about a scary new trend in jurisprudence:

It would be interesting to see your commentary on this, Jennifer

(I'd email it to you directly, instead of preempting your 'blog, but I don't know and can't find your email address.)

9:38 AM  

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