Posted on 01/19/2007 10:27:44 AM PST by FLOutdoorsman
You wrote all of this:
"The 'due process' you speak of is a collective due process while the document unique to America is steeped in the individual. It is the individual that must be given due process, not the collective Vicomte or we are no better or worse than any other collectivist failed nation.
Words mean what they say. I don't really care what the 'founders' meant or didn't mean, I care about the words 'the people' ratified and those words make it quite clear that the people intended a right to life unless due process done individually found that a person had forfeited that right.
I also understand that my view on that is not the common one here at FR since I don't happen to agree that states can abridge that right any more than the federales can absent due process to the individual. But I'm set in my ways and I won't be changing my mind any time soon.
A free country has to have at it's base a Supreme Law that treats all of it's citizens equally, our Constitution does just that and the people made it a document that can evolve but not at the whim of activists interpreting emanations from penumbras. That way lies danger witnessed by the murder of full term babies almost totally delivered from the birth canal and the never ending and always escalating internecine culture wars."
I understand precisely what you are worried about, and why, and I agree that the concerns are very real, and the effects of the current crop of "judicial activism" are very toxic. The problem I have with your viewpoint lies here:
"I don't really care what the 'founders' meant or didn't mean, I care about the words 'the people' ratified and those words make it quite clear..."
I end up having the same debate, for the same reason, with Biblical literalists on creationist/evolutionist threads. In both the case of the Constitution and the Bible, I am always willing to agree to go by the exact text, the specific words, as written, in trying to figure out what it means. But in the case of the both the Constitution and the Bible, it becomes apparent within the first sentence that the words are very loose. Any particular word has multiple meanings in the dictionary, even. Now, I know you think that this is "activism", that activists try to "redefine" words to mean what they want. But I think you assume far too much. I think you assume that the words EVER had a clear, single meaning. One of the reasons the Constitution is so vague and general is precisely because the drafters could not agree on any SHARP and CLEAR divisions of power. They covered over their disagreements by generalities. Truth is, one side wanted one thing, another side wanted a different thing, and neither could agree. So they chose words, quite deliberately, that each could colorably argue meant what they wanted it to mean. In this way they got out of conference. When they argued the Constitution to the People, who ratified it, the regional interpretations were striking. The drafters, in arguing for (or against) the Constitution argued that the words MEANT what they wanted them to mean. In this way, Massachussetts and South Carolina ratified the same language, but there was never agreement on any of it.
Let me take the most stark of all possible examples, the very one you are referring to. You say: the words the People ratified make "it quite clear that the people intended a right to life unless due process done individually found that a person had forfeited that right".
I say they absolutely, positively do not and did not, not ever.
Nobody in 1789 argued that black people were not people. Nobody argued that they were not human. Nobody argued that they were not men, or women. Some argued for their rights, but most didn't give a fig about them. The Constitution never refers to black people, never exempts black people from the right to life, the definition of person, anything. But black people had no right to life: they were killed by their owners by summary orders, a man destroying his property because he no longer wants it. Now, one can argue that the 14th Amendment (and 13th) overwhelms all of that, and that's true, that's history, but THE WORDS THE PEOPLE RATIFIED, the Constitution itself, didn't allow slavery or the killing of black slaves in the first place. A slave was a person, even legally, until the Dred Scott decision made it clear he was not. But he could be killed without due process, or any process. He could be made to do anything. He was treated as a piece of property. Nowhere does the Constitution say that's ok, or carve out an exception to itself in the case of black people. But that exception was universally understood and applied.
In short: the text does not matter. What the courts and Congress and Executive DID with the text is what always mattered.
Moreover, colonial law, continued into the federal period, did allow the use of abortifacients before "the quickening".
I think, truly, that the answer does not lie in hearkening back to some sort of Golden Age of American law, when people respected the text. They never respected the text as written. The Constitution has never been applied textually. It's always been a Common Law document. The early ages in America were as ugly and black in terms of national evil as today, in many ways uglier.
I think that the abortion argument can't be won on legalism, that the text "prohibits" it, without some pretty strong judicial activism that chooses to interpret the vague "due process" clauses to apply to unborn persons, thereby protecting them from abortion. Pick a text, any text, and read it literally. There's not much there. To appeal to what "the People" ratified in 1789 is to appeal to history, and to run smack into the problem that the text is vague precisely because even THEY didn't agree on fundamental things.
Even then, the text meant what the customs and organs of government interpreted it to mean.
To end the scourge of abortion, legalism won't do it.
The moral argument has to be made, and won on persuasion. Then the law will be interpreted to make it so.
I fear the day when we have a heavily liberal government, and being a member of a group like the NRA would be defined as being a member of a terrorist organization.
Everyone should consider this before blindly supporting the infringement of ANYONE'S constitutional rights when there is an administration in power that you perceive to be friendly to you. It won't always be that way. Imagine if Hillary were president looking for some of the powers that the Bush Administration has gotten since 9.11. Most folks here on FR and other conservatives would be raising hell.
Yes, but rights are like sand on a beach. Do you have the right to go to the bathroom when you need? Should that right be articulated or be assumed non-existant unless it is. It is much easier (and more prudent), to list what rights the government CAN take away (your right to CONTINUE swinging your fist even where my nose begins) than attempt an all-inclusive list of what rights we have.
That is, everything you would endevor to do, unless specifically mentioned as a right the government may remove, is a God given right. That is the default the government had in mind.
So, not only does the government not have the right to remove your cloak when you don't have one, but when you DO acquire one, they still do not have the right to remove your cloak. That is true freedom.
hmmm... what do you think about comment 3?
No. In terms of U.S. constitutional and common law Gonzales got it WAY wrong. The power to issue a writ of habeas corpus is vested as a right of the judiciary by the constitution. This is an affirmative power, not something they simply prohibited the government from denying. John Marshall explained habeas corpus' status in the 1808 decision of Ex Parte Bollman:
"It may be worthy of remark, that this act was passed by the first congress of the United States, sitting under a constitution which had declared 'that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety might require it.' Acting under the immediate influence of this injunction, they must have felt, with peculiar force, the obligation of providing efficient means by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation, they give, to all the courts, the power of awarding writs of habeas corpus....Whatever motives might induce the legislature to withhold from the supreme court the power to award the great writ of habeas corpus, there could be none which would induce them to withhold it from every court in the United States; and as it is granted to all in the same sentence and by the same words, the sound construction would seem to be, that the first sentence vests this power in all the courts of the United States; but as those courts are not always in session, the second sentence vests it in every justice or judge of the United States."
This is all basic stuff from the single most important habeas decision ever made by the Supreme Court. Quite frankly, Gonzales is an embarrassment of a constitutional lawyer and an embarrassment of an Attorney General for not knowing it.
History will not judge Gonzales kindly. He'll probably rank slightly better than Janet Reno and Ramsey Clark - the bottom of the bottom as far as AG's are concerned.
Ping.
This is awesome! I'm in awe that some people here are actually defending someone who questions a persons right to habeas corpus.
Agreed. Sadly, there are folks here who would defend Stalin if Bush decided he would be a good addition to the team.
Habeas Corpus is one of the most fundamental - and necessary - rights that prevent our country (or any English common law country) from tyranny.
It guarantees that if the executive (the cops) grab your behind, you have a right to go before the judiciary (a different branch of government) to make a determination if you are being held legally.
And by involving two branches of government, and because of the separation of powers clause, it is one of those "checks and balances" that so often gets touted but too often are not understood.
I have had a bad feeling about Gonzales for a while. This doesn't ease my conscience.
The Constitution applies Laws and Rights only to Citizens.
Non-Citizens are Non-Citizens. They are not Covered.
Not true.
When the Constitution wishes to limit a right only to citizens, it uses the word “citizen” (like when discussing the right to vote in federal elections). Elsewhere, it uses the word “person”. That relates back to the Declaration’s assertion that it is self-evident that man as man is endowed with unalienable rights by the Creator.
So, in the Fifth Amendment:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor ... shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law”
This is pretty plain. All persons, whether citizens or not, are entitled to due process, unless they are in service in the military or the National Guard in time of war or public danger.
I’m a non-citizen with a green card. Are you seriously suggesting that I can be imprisoned without trial just because of that?
What's the difference?
If you have to ask, you wouldn't understand.
The difference is quite clear. And quite important.
In this case, it would appear to be the Constitution...
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