most stringent curb that ever legislation imposed on tyranny.
Thomas Babington Macaulay, commenting on the importance of habeas
corpus in his first volume of History
of England, in 1848. That makes sense. After all, freedom
of speech, press, petition, religion and assembly are meaningless
if the government is able to lock up someone and throw away the
key. And all of those wonderful ideas about a fair and timely trial
are meaningless if the government is not compelled to "produce
the body" in court.
That may be
obvious to most of us, but apparently when one becomes recognized
as a "constitutional expert," all rules are off. This
was demonstrated on November 5, 2007 when Professor Daniel A. Farber
was given an opportunity to comment on Pakistan President General
Pervez Musharraf's justification of the imposition of emergency
powers in his country. Musharraf had referred to Lincoln's similar
actions during our War between the States and Farber was commenting
on National Public Radio's All Things Considered. Farber's
defense of Lincoln included the following statement:
most controversial action was suspending habeas corpus
at the outset of the war. While the Constitution does not speak
directly to this point, many legal scholars think only Congress
could suspend habeas.
This was a
shocking statement for anybody familiar with the Constitution, but
even more shocking coming from a Professor
of Law at the University of California at Berkeley and the author
of Lincoln's Constitution. I brought the following to the
attention of NPR management through its ombudsman, Lisa Shepard,
December 6, 2007, and when I received no response, to the 17 board
members of NPR:
due process of law, is referenced in both Amendment 5
and Amendment 14 of the Constitution.
corpus is generally considered to be associated with
due process. Many believe it is the keystone to due process
since without it, the other parts of due process (right to speedy
trial, presumption of innocence, et cetera) are meaningless
if the executive authority has the power to arbitrarily seize
a person and incarcerate him or her (see Brown
v. Vasquez and Jacob
I, Section 9 of the Constitution specifically states:
of the Writ of Habeas Corpus shall not be suspended, unless when
in cases of Rebellion or Invasion the public Safety may require
I further commented
in that letter to the NPR Board members,
will rush to claim that his suspension of habeas corpus
was consistent with the Constitution because the South was "in
rebellion." They miss the point. Suspension of habeas
corpus is NEVER within the authority of the executive branch
of the federal government. Article I was intended to describe
the powers and responsibilities of the legislative branch. Article
II, on the other hand, describes powers and responsibilities of
the executive branch. This is no minor technicality, but the essence
of the Constitution which is based upon five themes (see Introduction
by Garry Wills to The
Federalist Papers) — (1) Federalism, (2) Checks and Balances,
(3) Separated Powers, (4) Pluralism, and (5) Representation.
of separated powers applies to the question of suspension
of habeas corpus by the executive branch.
of Professor Farber's comment was to presume that "experts"
were divided on the question of the legitimacy of the executive
suspending habeas corpus, thus justifying Lincoln's actions.
In doing so, he was rationalizing the suspension of what Thomas
Babington Macaulay believed was the most fundamental individual
right and the most severe constraint on tyranny.
(or lack of action, to be more precise) superficially appear to
be unexplainable. We are led then to speculate about the motives,
first of Professor Farber and then NPR management and its directors.
Certainly ignorance must be discarded in all cases. One can suspect
that Professor Farber's enthusiasm for Lincoln at least temporarily
overwhelmed his love of the truth. We are all human, and that could
easily have been excused with a quick retraction. NPR, however,
consciously chose to avoid that path, and has demonstrated, once
again, that the initial infraction is often minor by comparison
with the magnitude of the cover-up.
Why would NPR
become complicit when getting to the source of the truth was so
easy? One could suspect that the culprit is culture. NPR is a child
of Big Government. According to Wikipedia
it was "created in 1970, following congressional passage of
Broadcasting Act of 1967, signed into law by President
Johnson." Today only 2%
of NPR's funding comes from governmental sources. However, while
the umbilical cord with Big Government has been severed, the DNA
remains. Culturally NPR is overawed with the credentials of "experts,"
and it finds it difficult to independently search for the truth.
Perpetuating the myth that Lincoln did no wrong is essential to
maintaining the respectability of Big Government. When a certifiable
bad guy like Musharraf questions the Lincoln myth, he must be countered
at all cost, even the truth.
explains Professor Farber's bizarre comments on the Constitution,
and NPR's unquestioning acceptance of them on All Things Considered,
but once Farber had "misspoken" and been detected, why
circle the wagons around his indefensible statement? Never underestimate
the power of culture. There still was hope that by stonewalling
an ordinary listener, this issue would go away quietly.
reminds us that we must be eternally vigilant, not just of our liberties,
but of the information we receive from sources that we believe are
respectable. The best that could be observed of Professor Farber
and NPR in this matter is that NPR has been used as a propaganda
transmission belt. The incident teaches us the importance of critical
thinking exercised by well-informed individuals.
Duffy [send him mail]
is a life-long student of history. He is currently a software
developer in West Chester, Pennsylvania.