January 20, 2007

One of the finest legal minds of the day. Or something.

Attorney General Gonzales yesterday: `There is no expressed grant of habeas in the Constitution; there’s a prohibition against taking it away.'

Okay, I suppose he's right in at least one sense. According to Article One, Section 9, `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 specific wording is that it's a right the state is not allowed to take away, except in certain specific cases. But, if it's a right the state is not usually allowed to take away, this would seem to imply directly that it's a right people usually have. A can't be forbidden from taking X away from B if B never ever has X in the first place.

Maybe one of your lawyerly types can explain this to me?



MosBen said...

As far as I can tell this is that old chestnut conservatives like to pull out from time to time, saying, "X isn't an expressly granted right in the Constitution, therefore it doesn't exist!" They seem to ignore, of course, the 9th Amendment's specific statement that the rights enumerated in the Constitution do not preclude any other rights held by the people but not mentioned specifically. I've honestly never understood how they can fail to appreciate what that Amendment means.

Anyway, Gonzalez is straight up wrong on this issue just as he's been wrong in nearly every one of his defenses of Administration policies since he took office. I'd prefer to believe that he's just zealously defending a client who insists on breaking the law, but lawyers are also bound to not bring frivolous arguments, or those devoid of merit, to a Court of law.

Anonymous said...

In fairness to Gonzalez, I don't think his argument is frivolous or devoid of merit. It's just very, very weak.

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