Sometimes officials of the Bush Administration have me wondering who really won the Cold War.
Such was the case when Attorney General Alberto Gonzales testified before the Senate Judiciary Committee on January 18th, in his conversation about habeas corpus with Senator Arlen Specter (R-Penn.):
Gonzales: The fact that the Constitution — again, there is no express grant of habeas [corpus] in the Constitution. There is a prohibition against taking it away. But it’s never been the case, and I’m not a Supreme —
Specter: Now, wait a minute. Wait a minute. The Constitution says you can’t take it away, except in the case of rebellion or invasion. Doesn’t that mean you have the right of habeas corpus, unless there is an invasion or rebellion?
Gonzales: I meant by that comment, the Constitution doesn’t say, "Every individual in the United States or every citizen is hereby granted or assured the right to habeas." It doesn’t say that. It simply says the right of habeas corpus shall not be suspended except by —
Specter: You may be treading on your interdiction and violating common sense, Mr. Attorney General.
Of course, Gonzales is partly right. There is no specific "grant" of habeas corpus in the Constitution, because inalienable rights are not doled out by government. America’s founding fathers didn’t believe governments grant rights. Instead, they believed (to quote Thomas Jefferson) that "all men … are endowed by their Creator with certain unalienable rights; that among these are life, liberty and the pursuit of happiness." God, not government, grants rights according to the thinking and language of the founders. That’s why George Mason wrote — when framing the Bill of Rights — that "Congress shall make no law" abridging our rights rather than "Every individual is granted" such-and-such a right. The difference is key, because anything government has the legitimate power to give you, it also has the power to take away. The founders said that our rights were unalienable, unable to be removed by the power of government.
And nothing — other than life itself — is more essential than the right to liberty. Habeas corpus simply says that government must produce some proof of a crime before locking up a man and taking away his liberty.
Gonzales: No freedom of speech, press and religion
Gonzales’ candid remarks reveal the totalitarian worldview of the evil men who currently infest the White House. Gonzales is saying that unless the Constitution explicitly grants all citizens a right, these rights can be taken away by the president — or perhaps even that these rights never existed in the first place.
Let’s take Gonzales’ philosophy to its logical conclusion. Americans would therefore enjoy no right to freedom of speech because there is, to use Gonzales’ language, no language in the Constitution that says: "Every individual in the United States or every citizen is hereby granted or assured the right to free speech." After all, the Constitution’s First Amendment simply says that "Congress shall make no law … abridging the freedom of speech." It never claimed to grant a right; all it said was that congress can’t abridge it. So that leaves the president and the courts free to do whatever they want in taking our rights away.
The same exact thing could be said of most rights protected by the Constitution: the right to freedom of the press, assembly, religion, the security against unreasonable search and seizure, the guarantee of a jury trial, and so on. None of these, according to Gonzales’ new legal theory, exist as rights for Americans because the Constitution has not "granted" them.
It’s not difficult to find a clear example of a constitution where government — not God — "grants" rights to citizens: The constitution of the old Soviet Union did that. The 1977 Soviet Constitution "granted" many rights (here are two examples):
"Article 54: Citizens of the USSR are guaranteed inviolability of the person. No one may be arrested except by a court decision or on the warrant of a procurator….
"Article 56: The privacy of citizens, and of their correspondence, telephone conversations, and telegraphic communications is protected by law."
The communist Chinese Constitution of 1982 has virtually identical language:
"Article 37: the freedom of person of citizens of the People’s Republic of China is inviolable. No citizen may be arrested except with the approval or by decision of a people’s procuratorate or by a decision of a people’s court, and arrests may be made by a public security organ….
"Article 40: The freedom and privacy of correspondence of citizens of the People’s Republic of China are protected by law."
Gonzales is about as serious about protecting the U.S. Bill of Rights as the Soviets of the old USSR were about protecting the rights of citizens there.
No, scratch that. Gonzales is worse than the Soviets and the Chinese.
The Chinese and the Soviets at least said the rights existed, even if they regularly violated them. Gonzales denies their existence. Moreover, agents of the Soviet state bear less moral culpability because they feared for their own lives and safety if they didn’t violate the rights of citizens. Gonzales has no such pressure on him to violate our rights.
Gonzales doesn’t even have the luxury of lying his way out of his statement that habeas corpus isn’t in the Constitution. The Bush Administration has fought three habeas cases all the way to the Supreme Court, including two on American citizens (Jose Padilla and Yaser Hamdi) and one foreigner (Hamdan). Gonzales was only articulating the policy the Bush Administration has followed for the past five years.
The Bush Administration has openly challenged the American people, and said that we have no rights.
These evil men need to be impeached. After that, we should perform a fumigation and an exorcism at the White House to clean it out fully.
If we remain inactive, the abuses will escalate and they will eventually come after you, dear reader.
Thomas R. Eddlem [send him mail] is a radio talk show host and freelance writer, and writes for LewRockwell.com, The New American magazine and AntiWar.com. He is a graduate of Stonehill College and resides in southeastern Massachusetts. Oh, and he hates tyranny — especially in his native land.