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Gonzales Questions Habeas Corpus
Baltimore Chronicle ^ | 19 Jan 2007 | ROBERT PARRY

Posted on 01/19/2007 10:27:44 AM PST by FLOutdoorsman

In one of the most chilling public statements ever made by a U.S. Attorney General, Alberto Gonzales questioned whether the U.S. Constitution grants habeas corpus rights of a fair trial to every American.

Responding to questions from Sen. Arlen Specter at a Senate Judiciary Committee hearing on Jan. 18, Gonzales argued that the Constitution doesn’t explicitly bestow habeas corpus rights; it merely says when the so-called Great Writ can be suspended.

“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.

While Gonzales’s statement has a measure of quibbling precision to it, his logic is troubling because it would suggest that many other fundamental rights that Americans hold dear also don’t exist because the Constitution often spells out those rights in the negative.

For instance, the First Amendment declares that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Applying Gonzales’s reasoning, one could argue that the First Amendment doesn’t explicitly say Americans have the right to worship as they choose, speak as they wish or assemble peacefully. The amendment simply bars the government, i.e. Congress, from passing laws that would impinge on these rights.

Similarly, Article I, Section 9, of the Constitution states that “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 clear meaning of the clause, as interpreted for more than two centuries, is that the Founders recognized the long-established English law principle of habeas corpus, which guarantees people the right of due process, such as formal charges and a fair trial.

That Attorney General Gonzales would express such an extraordinary opinion, doubting the constitutional protection of habeas corpus, suggests either a sophomoric mind or an unwillingness to respect this well-established right, one that the Founders considered so important that they embedded it in the original text of the Constitution.

Other cherished rights – including freedom of religion and speech – were added later in the first 10 amendments, known as the Bill of Rights.

Ironically, Gonzales may be wrong in another way about the lack of specificity in the Constitution’s granting of habeas corpus rights. Many of the legal features attributed to habeas corpus are delineated in a positive way in the Sixth Amendment, which reads:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed … and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; [and] to have compulsory process for obtaining witnesses.”

Bush's Powers

Gonzales’s Jan. 18 statement suggests that he is still seeking reasons to make habeas corpus optional, subordinate to President George W. Bush’s executive powers that Bush’s neoconservative legal advisers claim are virtually unlimited during “a time of war,” even one as vaguely defined as the “war on terror” which may last forever.

In the final weeks of the Republican-controlled Congress, the Bush administration pushed through the Military Commissions Act of 2006 that effectively eliminated habeas corpus for non-citizens, including legal resident aliens.

Under the new law, Bush can declare any non-citizen an “unlawful enemy combatant” and put the person into a system of military tribunals that give defendants only limited rights. Critics have called the tribunals “kangaroo courts” because the rules are heavily weighted in favor of the prosecution.

Some language in the new law also suggests that “any person,” presumably including American citizens, could be swept up into indefinite detention if they are suspected of having aided and abetted terrorists.

“Any person is punishable as a principal under this chapter who commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission,” according to the law, passed by the Republican-controlled Congress in September and signed by Bush on Oct. 17, 2006.

Another provision in the law seems to target American citizens by stating that “any person subject to this chapter who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States ... shall be punished as a military commission … may direct.”

Who has “an allegiance or duty to the United States” if not an American citizen? That provision would not presumably apply to Osama bin Laden or al-Qaeda, nor would it apply generally to foreign citizens. This section of the law appears to be singling out American citizens.

Besides allowing “any person” to be swallowed up by Bush’s system, the law prohibits detainees once inside from appealing to the traditional American courts until after prosecution and sentencing, which could translate into an indefinite imprisonment since there are no timetables for Bush’s tribunal process to play out.

The law states that once a person is detained, “no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever … relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions.”

That court-stripping provision – barring “any claim or cause of action whatsoever” – would seem to deny American citizens habeas corpus rights just as it does for non-citizens. If a person can’t file a motion with a court, he can’t assert any constitutional rights, including habeas corpus.

Other constitutional protections in the Bill of Rights – such as a speedy trial, the right to reasonable bail and the ban on “cruel and unusual punishment” – would seem to be beyond a detainee’s reach as well.

Special Rules

Under the new law, the military judge “may close to the public all or a portion of the proceedings” if he deems that the evidence must be kept secret for national security reasons. Those concerns can be conveyed to the judge through ex parte – or one-sided – communications from the prosecutor or a government representative.

The judge also can exclude the accused from the trial if there are safety concerns or if the defendant is disruptive. Plus, the judge can admit evidence obtained through coercion if he determines it “possesses sufficient probative value” and “the interests of justice would best be served by admission of the statement into evidence.”

The law permits, too, the introduction of secret evidence “while protecting from disclosure the sources, methods, or activities by which the United States acquired the evidence if the military judge finds that ... the evidence is reliable.”

During trial, the prosecutor would have the additional right to assert a “national security privilege” that could stop “the examination of any witness,” presumably by the defense if the questioning touched on any sensitive matter.

In effect, what the new law appears to do is to create a parallel “star chamber” system for the prosecution, imprisonment and possible execution of enemies of the state, whether those enemies are foreign or domestic.

Under the cloak of setting up military tribunals to try al-Qaeda suspects and other so-called “unlawful enemy combatants,” Bush and the Republican-controlled Congress effectively created a parallel legal system for “any person” – American citizen or otherwise – who crosses some ill-defined line.

There are a multitude of reasons to think that Bush and advisers will interpret every legal ambiguity in the new law in their favor, thus granting Bush the broadest possible powers over people he identifies as enemies.

As further evidence of that, the American people now know that Attorney General Gonzales doesn’t even believe that the Constitution grants them habeas corpus rights to a fair trial.

Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Secrecy & Privilege: Rise of the Bush Dynasty from Watergate to Iraq, can be ordered at secrecyandprivilege.com. It's also available at Amazon.com, as is his 1999 book, Lost History: Contras, Cocaine, the Press & 'Project Truth.'


TOPICS: Constitution/Conservatism; Editorial; Government; War on Terror
KEYWORDS: constitution; gonzales; habeascorpus; wot
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To: mugs99
It boggles my mind that anybody could consider the Witch of Chappaqua for any elective office.

But if enough anybodies are stupid enough to nominate her, the money and people to work against her are going to materialize out of nowhere, like mad.

Rest assured that I would come out of political action retirement in that case . . .

51 posted on 01/19/2007 1:07:13 PM PST by AnAmericanMother ((Ministrix of Ye Chase, TTGC Ladies' Auxiliary (recess appointment)))
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To: Cincinnatus

"The Writ of habeas corpus come from the English Common Law "

This, of course, is why Specter is stammering ... he is only familiar with Scottish law.

:)


52 posted on 01/19/2007 1:07:48 PM PST by No.6 (www.fourthfightergroup.com)
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To: AnAmericanMother

You have a fan here. I agree with your take. Any government that grants rights can take those rights away just as well. Moreover they use the word "Privilege" for a reason. Congress can suspend privileges, they certainly should not be able to suspend what the DOI called inalienable rights. Although the courts seem to have that power, see Kelo, Roe and Doe v Bolton.


53 posted on 01/19/2007 1:17:23 PM PST by jwalsh07 (Duncan Hunter for President)
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To: AnAmericanMother

The Constitution is what the Supreme Court says it is, because every organ of American government, and the American people themselves, make it so by obeying every act of the Supreme Court.

The actual Constitution itself is a vague muddle that doesn't spell out much in detail, other than a few procedures. Powers are broad, undefined, and "understood" within the context of their times, then and now. It's very much a "Common Law" Constitution.

And anyway, if being "in the Constitution" is the issue, there's no right to life in there. There is merely the right to not be deprived of life without due process of law. Due process of law is not defined anywhere in the Constitution, and was assumed to be (and is) defined by whatever the Courts, Congress and the Executive between them say due process of law is.

Sola Scriptura doesn't work all that well with the Bible, and it collapses totally when one tries to apply it to the US Constitution!


54 posted on 01/19/2007 1:25:51 PM PST by Vicomte13 (Aure entuluva.)
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To: ChurtleDawg
I agree with Spector on this one.

Would you not also agree with Gonzales when he said “There is no expressed grant of habeas in the Constitution?

55 posted on 01/19/2007 1:29:56 PM PST by MosesKnows
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To: Vicomte13
And anyway, if being "in the Constitution" is the issue, there's no right to life in there. There is merely the right to not be deprived of life without due process of law. Due process of law is not defined anywhere in the Constitution, and was assumed to be (and is) defined by whatever the Courts, Congress and the Executive between them say due process of law is.

Actually the right to life is "in there" several times. Each time it is modified by the phrase "due process of law". And whatever "due process of law" is, unborn babies sure the hell ain't getting it.

Abortion, otoh, is nowhere to be found. Which is exactly the point that Justice White made in his dissent on Roe.

56 posted on 01/19/2007 1:41:08 PM PST by jwalsh07 (Duncan Hunter for President)
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To: jwalsh07

"Actually the right to life is "in there" several times. Each time it is modified by the phrase "due process of law"."

Cite them, please.


57 posted on 01/19/2007 2:10:15 PM PST by Vicomte13 (Aure entuluva.)
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To: FLOutdoorsman

This is a non issue. The constitution and bill of rights don't say what rights we have. He is correct.

What it says is what rights the Government can take away, and when. Rights are literally assumed, except where specifically mentioned as removeable.

Take the right in question here. In a court of law if someone was not granted this right, and it was not under one of the tow conditions where it is allowed, they could merely say they have the right until someone can show where the right is not in effect.

Bluntly put, you don't have to specify which rights citizens have. The list would be billions of entries. No, what you have is a constitution and bill of rights that say you have the right to ANYTHING that is not specifically spelled out as NOT a right.


58 posted on 01/19/2007 2:17:57 PM PST by RobRoy (Islam is a greater threat to the world today than Nazism was in 1938.)
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To: AnAmericanMother

The night Hillary was first elected I watched her very carefully. As the tally was counted in the Districts she was holding her own but not pulling ahead of the other person. (I have forgotten who that was)

The Announcer on CNN (IIRC) that night said, "Well now it is up to the Jews to decide who they want to send to the Senate."

(I was puzzled by that statement. Then about an hour later, he was talking about the tally in NYC again and he said that the area that has not been counted yet is primarily Jewish residents. I was glad he explained it for me because I had no idea what he'd meant.

Then he said, "Tonight, it is looking as if the Jewish Democrats want Hillary. We'll know for sure, shortly."

Sure enough within the next two hours they announced that she had pulled ahead sufficiently to declare her the winner. So, my conclusion was that Jewish Democrats in NYC must like her for whatever reason and they voted for her in sufficient number to bring her the victory.

Perhaps you know why they like her. I sure don't.


59 posted on 01/19/2007 2:23:32 PM PST by B4Ranch (Press "1" for English, or Press "2" and you will be disconnected until you learn to speak English.)
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To: All

The second amendment does not say we have a right. It says the right shall not be taken away.

All rights are assumed, unless explicitly mentioned as falling under the category of "not a right".


60 posted on 01/19/2007 2:31:19 PM PST by RobRoy (Islam is a greater threat to the world today than Nazism was in 1938.)
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To: B4Ranch
Well, a Hasidic community (New Square?) voted for her because she pardoned 4 criminals from that community.

As for the rest of 'em, they must be deluded, she's anti-Semitic and no friend of Israel.

61 posted on 01/19/2007 2:37:26 PM PST by AnAmericanMother ((Ministrix of Ye Chase, TTGC Ladies' Auxiliary (recess appointment)))
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To: jwalsh07

It's also hard to secure the blessings of liberty to our posterity if they are continually being aborted. The preamble does an excellent job of stating why the Constitution was written. I believe the Constitution addresses abortion in this way. Tt's great stuff, unless it's used as toilet paper by some activist judge.


62 posted on 01/19/2007 2:39:19 PM PST by MinstrelBoy (If you're a Republican today, you're a hero.)
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To: FLOutdoorsman
"Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Secrecy & Privilege: Rise of the Bush Dynasty from Watergate to Iraq,"

I see. So, that's why he didn't mention the 2nd Amend.

63 posted on 01/19/2007 2:50:32 PM PST by spunkets
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To: Vicomte13
That's why we have to get those judicial appointments.

But would the "I'll take my ball and go home" folks here listen . . . no!

64 posted on 01/19/2007 2:50:50 PM PST by AnAmericanMother ((Ministrix of Ye Chase, TTGC Ladies' Auxiliary (recess appointment)))
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To: AnAmericanMother

>she's anti-Semitic and no friend of Israel.<

That was my opinion also.


65 posted on 01/19/2007 2:53:27 PM PST by B4Ranch (Press "1" for English, or Press "2" and you will be disconnected until you learn to speak English.)
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To: dirtboy
"I'm sorry, but since the Bush Adminstration claimed they had the power to declare an American citizen to be an enemy combatant with no recourse for the accused to confront the evidence used to make that declaration, I am not inclined to give Gonzales the benefit of a doubt on his views here - that he was being simply technical in his reading. That kind of technical reading, when done with bad intent, is how clearly-defined aspects of the Constitution are circumvented."

MEGA BUMP!


66 posted on 01/19/2007 3:15:49 PM PST by KantianBurke
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To: FLOutdoorsman

Gonzales may be technically correct, but that just makes it sound like legal double talk being used to justify the expansion of government powers...you know, something conservatives are supposed to be against. If this is OK then Freepers shouldn't complain about the IRS, eminent domain, what happened at Waco, or "Stormtrooper" cops busting into people's homes.


67 posted on 01/19/2007 3:29:29 PM PST by WestVirginiaRebel (I'm pretty sure the phrase life is too short doesn't exist in Islam-Dennis Miller)
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To: AnAmericanMother
We don't see them much around here because "you can always take MARTA."

Back when I was a car dealer in Atlanta I saw them all the time. And the worst part about Ga. was that none of the mandatory insurance laws were enforced alway. Everybody and his brother in those day's had a fake insurance card and I'd say it's the same today.

68 posted on 01/19/2007 5:00:00 PM PST by org.whodat (Never let the facts get in the way of a good assumption.)
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To: Vicomte13
Cite them, please.

Fifth and Fourteenth Amendments.

69 posted on 01/19/2007 5:09:15 PM PST by jwalsh07 (Duncan Hunter for President)
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To: MinstrelBoy
It's also hard to secure the blessings of liberty to our posterity if they are continually being aborted.

Very good, you mind if I borrow it from time to time?

70 posted on 01/19/2007 5:11:00 PM PST by jwalsh07 (Duncan Hunter for President)
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To: org.whodat
Well, the governor and the general assembly actually have done quite a lot over the last few sessions to tighten things up.

New feature is an instant computer system to check to see if people really have insurance. As soon as somebody cancels (the usual scam being to buy a policy and then cancel it once you have the card) the agency or insurer notifies the GCIC which puts it on the computer.

We're certainly seeing a number of prosecutions . . . so apparently with that "enforcement tool" things are somewhat better.

71 posted on 01/19/2007 5:32:26 PM PST by AnAmericanMother ((Ministrix of Ye Chase, TTGC Ladies' Auxiliary (recess appointment)))
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To: AnAmericanMother

exactly. And it also means that the executive branch has no authority to remove the habeus corpus provisions of the law.

When Lincoln tried to suspend habeus corpus in 1862, SCOTUS overruled him and said that the suspension clause applied to Congress, because only congress can suspend that fundamental liberty


72 posted on 01/19/2007 6:13:52 PM PST by ChurtleDawg (kill em all)
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To: RobRoy
The second amendment does not say we have a right. It says the right shall not be taken away.

If you will indulge an old fool for a moment.

I'm quite sure that those who wrote the Constitution were intelligent enough to know that you can't take away something that didn't exist. Therefore, I think I can safely assume that they believed that the right of Habeas Corpus did exist and therefore it was their intent to protect that right.

How can one take away my cloak when I do not have a cloak? To assume that one could take away from me something I did not have is just plain stupidity.

73 posted on 01/19/2007 6:23:39 PM PST by jerry639
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To: jwalsh07

I hate to have an argument with you, because you and I actually AGREE that abortion is an abomination that has to be stopped.

Where we part ways is that you sincerely believe that the Constitution actually protects life generically, provides a right-to-life. Presumably this means that the current law of the land, with judicial activism and all, is subverting the REAL Constitution, which is a good thing.

I think the Constitution is a piece of old parchment. A political deal struck a long time ago, by men living in their times facing the specific issues of their times. I don't think that there is extraordinary wisdom incorporated in the document, I don't think that it ever was very protective of human rights. To the extent that it works, it works because from generation to generations Americans have been largely common-sensical and done what they thought they needed to do, stretching and contracting the vague and imprecise language of the Constitution itself to basically authorize whatever they wanted authorized and reject whatever they wanted to reject. I think the real glue that held the country together was not this old and inadequate and vague political deal, this Constitution, but rather, the fact that everybody shared just about the same moral code due to universal Christianity. Once Christianity ceased to be quasi-universal, national unity ended. Thus, today, there is less unity between Americans of the same race and social class on moral issues than there was between white plantation owners and freed former slaves, who were both believing Protestant Christians!

Christianity is gone as a glue. A full quarter, at least, of the population are not Christian at all, in anything but the most nominal sense. Another quarter are nominal Christians who do not feel constrained by the old moral teachings of the Church. Half the population, perhaps, are actual believing Christians, but half the population is only enough to make a good faction, not enough to settle rules. So today, we settle everything through law, because law and government are the only things left that have any real enforcement power, the fear of God being largely gone.

And now that ALL of the weight of decision and orderly society falls on the law and the Constitution, we are discovering just how inadequate, patchy, weak, vague and unsatisfactory our Constitution and Common Law system really are. It worked back in the day when the real glue holding everyone together was a commonly believed moral rule set providing the rules by which people lived, with the courts merely adjudicating disputes. Today, government and law are all we have to impose a common rule set. And the Constitution we have is utterly inadequate for that task. Unfortunately, it worked so long (BECAUSE it was Christianity that was working) that folks have a superstitious reverence for it's "Wisdom" and "Foresight".
In truth people should be praising the moral power of Christianity to have held society together so well WITHOUT a clear political or legal code.

Anyway, that's where we end up fighting. You think the Constitution has embedded into it the rights and powers and protections we all want. It is clear to me that not only doesn't it, but that the system we have IS the Constitution brought to life. The Constitution is a weak and messy muddle. The terms themselves aren't defined. Ergo, they MEAN whatever officials can get them to mean and still be obeyed.

So, turning to this which you wrote:
"Actually the right to life is 'in there' several times. Each time it is modified by the phrase 'due process of law'. And whatever 'due process of law' is, unborn babies sure the hell ain't getting it."

I answer, respectfully but firmly, that there is no "Right to life" in the Constitution, and that "Due process of law" never meant anything other than the customs of the court and government. So, unborn babies ARE getting "due process of law" under the American system. Why? HOW? Because "due process of law" doesn't MEAN anything other than what the court system says it does. Morally, it SHOULD mean that babies can't be killed in utero, but that's a moral and political judgment. It's not in the Constitution. The Constitution isn't a Christian document. It's a political deal. When the people operating under the deal cease to be Christians, then the rules of the deal mean whatever the new people do under the institutions which remain.

So, let's look at the actual language of the two amendments, reproduced here. You will see that "due process of law" isn't defined. And you'll see that the only "life" protected is the life of a CRIMINAL accused of a CAPITAL CRIME. That's it. That's all. Nothing else is mentioned. To the extent that there is any further rights that come from this language, it's because judges have made the law through cases. The Constitution simply provides a framework, Judges and Congress actually give the words whatever meaning they have.


Amendment V
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 any person be subject for the same offence to be twice put in jeopardy of life or limb; 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; nor shall private property be taken for public use, without just compensation.

Amendment XIV.
Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section. 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.


74 posted on 01/20/2007 6:31:04 AM PST by Vicomte13 (Aure entuluva.)
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To: FLOutdoorsman

This is awesome! I'm in awe that some people here are actually defending someone who questions a persons right to habeas corpus.

Good Lord


75 posted on 01/20/2007 7:03:25 AM PST by JNL
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To: FLOutdoorsman

Habeas Corpus has been... "ignored" by the government when it felt it needed to before. The fact that people in the government believe what Gonzales has said openly should be no surprise to anyone.


76 posted on 01/20/2007 7:09:19 AM PST by ColdSteelTalon
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To: Vicomte13
Your view is not a unique one my friend, it is the view embraced by activist judges the country over. The result of that view is a never ending culture war inflamed by judges who embrace your view of the Constitution, the view that the words mean nothing except what the current appointed judge wants them to mean.

You're correct in that I don't embrace that view and I don't embrace it because I think it simply leads to animus between those with differing views and an inevitable split in this country somewhere down the road.

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.

Regards.

77 posted on 01/20/2007 9:54:56 AM PST by jwalsh07 (Duncan Hunter for President)
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To: Vicomte13; jwalsh07
nor deny to any person within its jurisdiction the equal protection of the laws.

Assuming fetuses are "persons" within the meaning of the Constitutional text (which is jwalsh07's contention, and one with which I disagree), cannot a reasonable contention be make that a law which legalizes the killing of fetuses but does not legalize the killing of other persons, is a denial of the equal protection of the laws?

78 posted on 01/20/2007 11:00:05 AM PST by Torie
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To: FLOutdoorsman
The writer is a clueless moron. OF COURSE the Constitution doesn't "grant" a right to habeus corpus - - in fact, the Constitution doesn't "grant" any rights at all. The Constitution tells the federal government what it can and cannot do. Period.

(At least, that was the original idea.)

79 posted on 01/20/2007 11:06:29 AM PST by Lancey Howard
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To: Torie

"Assuming fetuses are "persons" within the meaning of the Constitutional text (which is jwalsh07's contention, and one with which I disagree), cannot a reasonable contention be make that a law which legalizes the killing of fetuses but does not legalize the killing of other persons, is a denial of the equal protection of the laws?"

Of course!
Absolutely!
But my point is that what constitutes "person" within the meaning of the Constitutional text isn't defined by the Constitutional text. It's defined by the Courts and Congress and Executive agencies that operate under the Constitutional text.
The Constitution protects "persons".
What a "person" is, is defined by the Courts and Congress, and the Executive agencies.
Whatever they define a person as is then protected...insofar as the protection is understood to be granted by the Constitutional text by the Courts and agencies that enforce it and decide what "protection" means, and what limits it has.

I suppose an easier shortcut to all of this is to just say "Words mean what the Supreme Court say they mean".


80 posted on 01/21/2007 3:12:01 PM PST by Vicomte13 (Aure entuluva.)
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To: jwalsh07

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.


81 posted on 01/21/2007 3:50:03 PM PST by Vicomte13 (Aure entuluva.)
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To: traviskicks

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.


82 posted on 01/21/2007 4:04:18 PM PST by KoRn
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To: jerry639

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.


83 posted on 01/22/2007 10:15:03 AM PST by RobRoy (Islam is a greater threat to the world today than Nazism was in 1938.)
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To: KoRn

hmmm... what do you think about comment 3?


84 posted on 01/22/2007 1:34:41 PM PST by traviskicks (http://www.neoperspectives.com/Ron_Paul_2008.htm)
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To: FLOutdoorsman
well let's ask Hitlery about the second amendment.
85 posted on 01/22/2007 1:36:25 PM PST by Tarpon
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To: Cincinnatus
What The AG said is an exact and precise statement of the law, something I am happy to hear from a lawyer

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.

86 posted on 01/22/2007 8:25:04 PM PST by lqclamar
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To: lqclamar

Ping.


87 posted on 01/23/2007 9:20:58 PM PST by Jo Nuvark (Those who bless Israel will be blessed, those who curse Israel will be cursed. Gen 12:3)
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To: JNL

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.


88 posted on 01/23/2007 9:42:19 PM PST by djf (Democracy - n, def: The group that gets PAID THE MOST ends up VOTING THE MOST See: TRAGEDY)
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To: FLOutdoorsman

The Constitution applies Laws and Rights only to Citizens.

Non-Citizens are Non-Citizens. They are not Covered.


89 posted on 01/23/2007 9:50:43 PM PST by Prost1 (Fair and Unbiased as always!)
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To: Prost1

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?


90 posted on 06/19/2007 7:47:11 PM PDT by alexzion
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To: HaveHadEnough
It's a privilege of free men, not a right.

What's the difference?

If you have to ask, you wouldn't understand.

91 posted on 06/19/2007 7:56:59 PM PDT by okie01 (The Mainstream Media: IGNORANCE ON PARADE)
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To: okie01
That's an easy way to avoid having to explain your position.

"A privilege of free men." What does that mean?
92 posted on 06/20/2007 4:02:45 AM PDT by HaveHadEnough
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To: HaveHadEnough
Do you have a dictionary?

The difference is quite clear. And quite important.

93 posted on 06/20/2007 6:54:36 AM PDT by okie01 (The Mainstream Media: IGNORANCE ON PARADE)
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To: okie01
I understand what privilege means, but a "privilege of free men"?

If we are free, who the hell is granting the privileges around here?
94 posted on 06/20/2007 6:57:32 AM PDT by HaveHadEnough
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To: HaveHadEnough

In this case, it would appear to be the Constitution...


95 posted on 06/20/2007 7:01:55 AM PDT by okie01 (The Mainstream Media: IGNORANCE ON PARADE)
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