Why’d We Have That Revolution Thing?

The Alabama Democrat highlights this recent exchange at a Senate Judiciary Committee hearing between  U.S. A.G. Alberto Gonzalez and Senator Arlen Specter:

“There is no expressed grant of habeas in the Constitution; there’s a prohibition against taking it away,” Gonzales said.

Gonzales’s remark left Specter, the committee’s ranking Republican, stammering.

“Wait a minute,” Specter interjected. “The Constitution says you can’t take it away except in case of rebellion or invasion. Doesn’t that mean you have the right of habeas corpus unless there’s a rebellion or invasion?”

Gonzales continued, “The Constitution doesn’t say every individual in the United States or citizen is hereby granted or assured the right of habeas corpus. It doesn’t say that. It simply says the right shall not be suspended” except in cases of rebellion or invasion.

“You may be treading on your interdiction of violating common sense,” Specter said.

AlDem seconds Specter, saying:

This is utter stupidity.

I agree that as a matter of interpretation, AlGonz’s statement is Troy King worthy. Saying the right can not be taken away obviously presupposes the right is there in the first place. AlGonz’s argument to the contrary would get laughed out of even a conservative court. 

But his statement is not just stupid, for two reasons it’s very scary

First, it reveals quite a bit about AlGonz’s views of the relationship between government and governed. If you think the governed live and move and have their being at the pleasure of the government, well, then AlGonz’s statement makes perfect sense. The people only have those rights and privileges that the government explicitly gives to them. Hence, if the government does not explicitly give them, for example, the right to habeas corpus, than they have no right to habeas corpus. Can you say totalitarian?

Second, given AlGonz’s view that government is omnipotent (unless, I’m sure, good conservative that he is, it tries to protect minorities or the environment) it is no surprise that he detests habeas corpus. People exist at the pleasure of the government anyway, so who are they to complain if the government takes away their existence?

Here’s why this stuff bugs me.

Anyone who puts a high value on freedom would think habeas corpus is a great idea. Sure, terrorists are bad, but so is taking away a person’s liberty. Requiring proof of bad activity is the way we balance liberty and security. We want the bad guys, and only the bad guys, in jail. So we require evidence, and confrontation, and neutral decision makers. That way we can be relatively sure that we do not unnecessarily take away a person’s freedom. Things like habeas corpus are how we separate the wheat from the chaff. AlGonz, though, would just burn it all up.

All habeas corpus does is provide a means whereby someone whom the government has arrested can force the government to justify the arrest. That is an inherent right; not, contrary to AlGonz’s belief, a privilege granted to us by some omnipotent beneficient state. To someone who thinks like AlGonz, the idea of a single person forcing the government to stand before a neutral judge and prove its case is repulsive. To me, it’s beautiful.

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Explore posts in the same categories: National Politics, War on terror

4 Comments on “Why’d We Have That Revolution Thing?”


  1. What strikes me is that this was the only worry Jefferson had about a Bill of Rights in the first place. Also, when examining the history of habeas corpus, one can see that it was meant to be a fundamental right except in very extreme circumstances. I felt the same worry you are no doubt feeling when I read this. HOW can this man be our AG? Maybe him and Troy should get together at an Atlanta Braves game and discuss judicial philosophy.

  2. Kathy Says:

    This exchange is worthy of a Twilight Zone episode.

  3. JPW Says:

    I posted about AbuGonzales remark the other day. Wouldn’t his logic apply to life, liberty, guns, free speech……

    Amazing. Absolutely amazing.


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