Thread: Constitutional Law Conversation .... Alberto Gonzales ;)

Originally Posted by Bogey

Here's the question at hand; Does the constitution guarantee the "right" of Habeus Corpus?

Here's my question; At what point did a "privilege" become a "right".
See section 1.9.2 of the constitution. "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

The Bill of rights (#6) does not address the Writ of Habeas Corpus; as some have argued. See definition of Habeas Corpus.

If it were a "right", would it not have been expressed that way? Or, not addressed at all?

It appears is that we have a question of interpretation; What is perceived and what is actually written. So could it not be that both sides are correct and we will need to see what the SC says about the issue?

Good questions.

I've not researched it much beyond my learning on this issue years ago -- or more specifically from what I REMEMBER of my learning of it years ago -- so take it with a grain of salt, but here's how it all could well be reconciled.

Yes. The constitution does indeed guarantee the writ of habeas corpus, albeit conditionally: in times of "insurrection" or "rebellion", it may be "suspended"; hence, it's a "privilege", as denoted by the use of the term "unless" preceding those two exceptions. It would indeed look silly for the founders to have named something a "right" and then quickly followed it up with a great big "unless." But I think we can take it to the bank, among sane, neutral, disinterested jurists, that when something's called a privilege because of the use of "unless", what we're left with, after the "unless" is taken into account, is a RIGHT. If that were not the case, then the "unless" is mere surplusage, meaning nothing.

It doesn't guarantee the freedom sought by the writ, but it does indeed guarantee that the questions raised by the writ shall be heard, unless those two exceptions apply.

For Alberto Gonzales to seriously argue that the constitution provides for exceptions to that guarantee, beyond those two enumerated, is sheer neoconsense, by my lights. It is Clinton-parsing at its Draconian worst. It is agenda-driven wishful thinking, but very, very, very dangerous. If Bush's "unitarian" justices gain sway on the Supreme Court, we could be in for long and miserable lives -- in places we'd rather not "disappear" to. Some of us have been warning of this long before Bush-idolotry, especially in the lead up to this ridiculous war, took hold. Thank God for the 22nd Amendment!

Perhaps the reason the right to habeas corpus is unmentioned in the Sixth Amendment is at least twofold: such a right is embodied in the pre-Bill of Rights constitution itself and the Sixth Amendment concerns itself with criminal trials. The distinction in that last clause is subtle. The writ for habeas corpus is actually a civil proceeding. That is, it's not the "state" versus Joe Lunchbucket. It's Joe Lunchbucket essentially coming back at the state. The Sixth Amendment concerns the right to counsel at trial, which trial is already presupposed to have occurred, for otherwise there'd be no need to actually petition to get out of jail. At least I hope in George Bush's America there's still room for a trial as a necessary predicate for imprisonment. But who knows?! American citizens can be "disappeared" now, all in the name of this goofy war on terror.

That's just my opinion, as I type, but it sounds about right to me for now.

Very good questions, though -- deserving of much better analysis on my part, but oh to have more time than we all get each day!

Originally Posted by Bamajdphd

Then we'll check your work. For I have the key.

Do you realize how much of an arse you sound like? Regardless if you are right or Ghost is right. He is at least keeping it civil and not bowing to your trollish attitude.

Originally Posted by Phoebe

Originally Posted by Bamajdphd

Then we'll check your work. For I have the key.

Do you realize how much of an arse you sound like? Regardless if you are right or Ghost is right. He is at least keeping it civil and not bowing to your trollish attitude.

I noticed that also, Phoebe. He does sound a little sanctimonious, doesn't he?

Originally Posted by PinestrawGuys

I noticed that also, Phoebe. He does sound a little sanctimonious, doesn't he?

Just a tad

As I explained to aother poster via PM, the problem with calling Habeas Corpus a right is that it is not a power that is commonly held. That is to say, historically the writ could only be executed by a judge or magistrate and originally only at the behest of a monarch. By the time the Writ of Habeas Corpus was incorporated into our own Constitution, the idea that the issuance of the writ was contingent upon the request of monarch was rather remote history. Nevertheless, a petition had to be made to a judge. Because a citizen could not directly issue the writ, it could not, by definition, be a common right. In order for something to be a common right, each and every citizen must have the natural power to exercise it. Any act or power whose lawful exercise is contingent upon an act of government is, by definition, a privilege and not a right.

That said, the idea of the expansion of the conditions under which a Writ of Habeas Corpus may be issued is troubling, as was the expansion of the conditions under which the Executive could call up the militia and the expansion of federal powers under the so-called Patriot Act. None of this is new, however, but is rather a steady progression of the usurpation of powers that started under Lincoln and then took off in earnest under FDR. Disdain for our rights is not a trend that is determined by partisan politics, but rather is endemic to the federal system. The only difference from one party to another is the specific rights against which the hostility exists.

Originally Posted by PinestrawGuys

Originally Posted by Phoebe

Originally Posted by Bamajdphd

Then we'll check your work. For I have the key.

Do you realize how much of an arse you sound like? Regardless if you are right or Ghost is right. He is at least keeping it civil and not bowing to your trollish attitude.

I noticed that also, Phoebe. He does sound a little sanctimonious, doesn't he?

Originally Posted by Bamajdphd

Originally Posted by PinestrawGuys

Originally Posted by Phoebe

Originally Posted by Bamajdphd

Then we'll check your work. For I have the key.

Do you realize how much of an arse you sound like? Regardless if you are right or Ghost is right. He is at least keeping it civil and not bowing to your trollish attitude.

I noticed that also, Phoebe. He does sound a little sanctimonious, doesn't he?

I guess I'd posted to myself without typing the words!

But yeah, I'll try to keep your notes in mind as a check on the energy of my rebuttals.

Originally Posted by CrocketsGhost

As I explained to aother poster via PM, the problem with calling Habeas Corpus a right is that it is not a power that is commonly held.

As discussed in Dean's article, the United States Supreme Court disagrees:

In Hamdi v. Rumsfeld, the Court's opinion, written by Justice O'Connor, stated - citing the Constitution itself - that "[a]ll agree that absent suspension, the writ of habeas corpus remains available to every individual detained within the United States[.]''

Originally Posted by Bamajdphd

Originally Posted by CrocketsGhost

As I explained to aother poster via PM, the problem with calling Habeas Corpus a right is that it is not a power that is commonly held.

As discussed in Dean's article, the United States Supreme Court disagrees:

In Hamdi v. Rumsfeld, the Court's opinion, written by Justice O'Connor, stated - citing the Constitution itself - that "[a]ll agree that absent suspension, the writ of habeas corpus remains available to every individual detained within the United States[.]''

While you're quoting part of the Supreme's ruling, why not include it in entirety? Also, it would be beneficial to your argument to include the desenting opinions.

After all, we ALL have come to realize that there are several Supremes that have bowed at the alter of INTERNATIONAL LAW and NOT the US Constitution.

.

Originally Posted by 2ndamendsis

Originally Posted by Bamajdphd

Originally Posted by CrocketsGhost

As I explained to aother poster via PM, the problem with calling Habeas Corpus a right is that it is not a power that is commonly held.

As discussed in Dean's article, the United States Supreme Court disagrees:

In Hamdi v. Rumsfeld, the Court's opinion, written by Justice O'Connor, stated - citing the Constitution itself - that "[a]ll agree that absent suspension, the writ of habeas corpus remains available to every individual detained within the United States[.]''

[1] While you're quoting part of the Supreme's ruling, why not include it in entirety?

[2] Also, it would be beneficial to your argument to include the desenting opinions.

[3] After all, we ALL have come to realize that there are several Supremes that have bowed at the alter of INTERNATIONAL LAW and NOT the US Constitution.

.

[1] Because the excerpt provided succinctly and accurately made the point I wanted made. If you want more, if you have a further point you want to make, why not include it in a post of your own?

[2] The "desenting" (sic) opinions were not included because dissenting opinions are not the law of the land. I'm not today interested in losing visions of what the law says, but in this limited point I'd made above.

[3] "Bow at the alter"? That's a little shrill, but my question is: do you think some of the justices' opinions are invalid, "don't really count," somehow?