Vox Libertas

School Girl vs "Professional Journalist"

nobody@vox.com(Brons) — Wed, 13 Feb 2008 22:23:50 -0500

Two news stories recently caught my eye, not only for what each one told us about the state of the Republic, but even more so, what comparing them tells us about the sorry state of journalism today. In the first story, Chris Wallace of Fox News managed to be so obsequious that it made even George W. Bush uncomfortable to accept the gesture.

Wallace: Protecting the rights...

WALLACE: I want to follow up on that. Whether it is interrogation of terror prisoners or the intercepting of surveillance among al Qaeda members, are you ever puzzled by all of the concern in this country about protecting of rights of people who want to kill us?
BUSH: That is an interesting way to put it. I wouldn't necessarily define some of the critics of my policy that way. I would say that they want to be very careful that we don't overstep our bounds from protecting the civil liberties of Americans.

In the same interview, Bush grossly misrepresented Senator Obama's foreign policy:

WALLACE: Do you think there's a rush to judgment about Barack Obama? Do you think voters know enough about him?
BUSH: I certainly don't know what he believes in. The only foreign policy thing I remember he said was he's going to attack Pakistan and embrace Ahmadinejad, which -- I think I commented that in a press conference when I was asked about it.
WALLACE: I hope not. But so you don't -- you don't think that we know enough about him or what he stands for?

Bush's summary of what Obama supposedly said is patently false. The Senator actually said of Pakistan exactly what the President himself said, that if there were actionable intelligence that Osama bin Ladin were in a known location in Pakistan he would go after him, preferably with Pakistan's support, but even over their objection. As to "embracing" the Iranian president, what he actually said that started all the brouhaha was that he would be willing to meet with the leader of Iran (and 4 other countries hostile to the US) "And the reason is this: that the notion that somehow not talking to countries is punishment to them -- which has been the guiding diplomatic principle of this administration -- is ridiculous." (Transcript available at CNN.)

Wallace did not challenge the President on this misrepresentation, but rather encouraged him. The interview was a segment on the Feb 10, 2008, edition of "Fox News Sunday with Chris Wallace" is available in pieces on YouTube, and a partial transcript is available on FoxNews.com.

The second story involves Karl Rove's recent appearance at Choate, the exclusive prep school. Rove had originally been scheduled as a commencement speaker, but was rescheduled to make a longer public appearance, dining with a group of students and giving a public speech followed by a question and answer period.

The article describing the event in the February 12, 2008 Hartford Courant contained the following account, which was picked up by a number of other journals, including Rolling Stone, who hailed the student as a hero.

Then there was Marla Spivak.
Spivak, a senior from Hamden, was one of the students invited to have lunch earlier with Rove. That left her somewhat emboldened as she stood before the crowd and asked Rove to explain how giving gay people the right to marry would endanger other people.
Rove took issue with the way the first gay marriages came about, through the Massachusetts Supreme Court. An issue as important as the definition of marriage should be resolved by a legislature or a referendum, not a court, he said.
Gay couples could gain the legal rights of married couples through legislation without actually getting married, he said.
But wouldn't creating a separate body of legislation for gay people be creating a separate but equal system, a step back?, Spivak asked.
Rove replied with an answer about Mormons changing their views on marriage to conform with the nation's laws.
Spivak kept pressing. "You never actually answered, how does it threaten anyone?" she asked.
Rove asked, what's the compelling reason to throw out 5,000 years of understanding the institution of marriage as between a man and a woman?
What, Spivak countered, was the compelling reason for society to allow interracial relationships when they had once been outlawed.
Then Rove invoked the Declaration of Independence before Spivak interjected that its reference to "life, liberty and the pursuit of happiness" seemed to support her claims.
Their verbal pingpong match tapered off after Rove brought up polygamy and Spivak acknowledged that she did not know enough about polygamy to answer. Rove later asked when she planned to run for political office.

Whereas Wallace was a disgrace to journalism, young Marla did her school proud. Having Rove on campus was somewhat controversial, but this exchange shows why it was a good idea. Marla and her classmates as well as the readers of the Courant, Rolling Stone and the others who covered it all learned a valuable lesson. Ignorance, bigotry, hypocrisy and their like will always be with us, but the light of truth, reason and justice can be shone upon them by youngsters who haven't even finished school. It is about time that journalists and Congressmen learned to have the backbone and persistence that Marla showed. Where is the threat? Where is the danger in same-sex marriage? Where is the justice in denying it? These are questions worth asking, be they asked by school girls, journalists, comedians or Supreme Court justices.

Chris Wallace, a second generation journalist should know better than to suck up to the President with such drivel. He should know enough to press when the President lies during an interview. He should not be shown up by a high school student. Shame on him! Shame on Fox for letting him! And shame on us for putting up with all of them. Marla Spivak should put them and us all to shame.

Feel free not to agree with the disdain I feel for the man who lies from the Oval Office. Feel free to not share my pride in my Commonwealth that its Supreme Judicial Court recognized the conflict between our Constitution and our laws and forced us to reconcile them. This is a free country and each of us should be a free voice. Each of us should raise that voice and ask the questions that we have, and make power answer those questions. Hard questions, honest questions, voiced freely and persistently is what keeps this country free, and keeps our voices free.

Thank you, Marla Spivak. You are a free voice, one that should make us proud.

Vox Libertas

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Alberto Gonzalez: “There is no expressed grant of habeas in the Constitution"

nobody@vox.com(Brons) — Fri, 26 Jan 2007 12:57:58 -0500

In my last posting, I made a last minute reference to an exchange between Attorney General Gonzales and Arlen Specter during Senate hearings on January 18th wherein Gonzalez denied the existence of a Constitutional right of habeas corpus. At that time, I suggested that Attorney General might be right as suggested in a posting over at the Daily Kos. The whole issue came up after I already posted my first version to Vox, and so I didn't have a lot of time to research and contemplate the issue.

With time to consider it, I believe that at best the Attorney General is mistaken and at worst he was using rhetorical trickery in a deliberate attack on the fundamental freedoms guaranteed in the Constitution.

To recap, the exchange went as follows. I have added a bit of what led up to the comment. A fuller transcript and video are available at Think Progress.

Specter: Where you have the Constitution having an explicit provision that the writ of habeas corpus cannot be suspended except for rebellion or invasion, and you have the Supreme Court saying that habeas corpus rights apply to Guantanamo detainees [... text elided]
Gonzales: A couple things, Senator. I believe that the Supreme Court case you’re referring to dealt only with the statutory right to habeas, not the constitutional right to habeas.
[further exchange elided]
Gonzales: “[...] there is no expressed grant of habeas in the Constitution; there’s a prohibition against taking it away,”
Specter: “Wait a minute... 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: “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.”

The key claim here, of course, is that "there is no expressed grant of habeas in the Constitution". And of course that's correct, but very misleading. The thing that you have to remember is that—and this is critical—the Constitution does not grant rights to the people. The constitution has no expressed grant of habeas corpus, because it has no grants whatsoever!

Perhaps the most important thing in the whole constitution is its first three words: "We, the People". The US Constitution is a groundbreaking document because unlike previous charters and constitutions, it derives its authority and power from the people, and not a grant from King or other "greater power". What makes it different is that in it the people grant the government certain powers. The most radical and important statement in the whole document is that "We, the People of the United States, ... do ordain and establish this Constitution for the United States of America."

This sentence and its wording are important. We not only establish the constitution and the government that it defines, we "ordain" it, which means "To order by virtue of superior authority; decree or enact", and carries the connotation of "invest with ministerial or priestly authority; confer holy orders". English law, on the other hand originates with the granting of rights by the King who ruled either by divine right or by right of conquest. We in America, on the other hand, "hold these truths to be self-evident, that all men are created equal, that they are endowed, by their Creator, with certain unalienable Rights", and that "to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed".

So, when Attorney General Gonzalez says. "there is no expressed grant of habeas in the Constitution" he is telling the absolute truth, but his statement doesn't mean what it sounds like. It doesn't mean that there is no such right and it doesn't mean that the Constitution doesn't protect that right. When he says "“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 mean a thing. The Constitution doesn't grant or assure us the rights of Life, Liberty and the Pursuit of Happiness either. It doesn't have to. It assumes them.

The key, meaningful claim that he makes in the controversial passage is "It simply says the right shall not be suspended except in cases of rebellion or invasion". And what that means is that when we, the people, created the government, specifically the legislature, as this is Article I, we ceded Congress the right to suspend habeas corpus only in certain specific circumstances. By mentioning the right (or privilege) and ceding the power to suspend it in certain circumstances we also assured ourselves that it could not be taken away in any other circumstances.

And here is part of the tragedy I wrote of in my first posting. We allow phrases like "Constitutional right" to trick us into thinking that this country is like a monarchy or other authoritarian state wherein rights are granted to the people. That's not the case. We are born with them and we reserve them. In some limited and specific circumstances we cede some of them to the state, but barring the explicit relinquishing of our rights, they are ours by nature or by the grant of our Creator. If we lose our rights because we allow ourselves to be convinced that they were never granted to us then that is truly tragic.

This brings us to the passages I added to the quotation above, the ones that make me wonder at the Attorney General's motives. Senator Specter starts out by talking about the Constitution the way it actually works. He speaks of the explicit provision that habeas may not be suspended. Gonzalez responds by drawing the distinction between the "constitutional right" and "statutory right" to habeas, and says that SCOTUS was dealing only with the "statutory right". Specter then responds that he is wrong that they deal with the "constitutional right", and then after they differ on that, which depends on Specter accepting the usage and concept of a "constitutional right", Gonzalez points out that there is no "express grant" of the "constitutional right". Please note that he was the one who introduced the term "constitutional right to habeas", which he now says the Constitution doesn't grant, and implies doesn't exist. If it doesn't exist, why did he even speak about it?

As I was searching the Internet for a transcript that included Specter's question, I came across the following on Jeff Strabone's blog:

Gonzales: I was just simply making an observation that there isn't an expressed grant. My understanding is that in the debate during the framing of the Constitution there was discussion as to whether or not there should be an expressed grant, and a decision was made not to do so. But what you see in the language is a compromise. I think the fact that in 1789, the Judiciary Act, that they passed statutory habeas for the first time, may reflect -- maybe -- I don't want to say a concern, but why pass a statutory right so soon after the Constitution? Perhaps, because it wasn't express grant of habeas.

Up until I read this, I might have believed that the whole bait and switch introduction of the "constitutional right of habeas" for which there was "no express grant" wasn't deliberate trickery, but then he pulls this stunt! First of all, there was no suggestion that there should be an "express grant". The founders knew that the state doesn't grant rights to the people. What was proposed was that the passage should read as follows, based on the Massachusetts and New Hampshire constitutions:

The privileges and benefit of the writ of habeas corpus shall be enjoyed in this government in the most expeditious and ample manner: and shall not be suspended by the Legislature except upon the most urgent and pressing occasions, and for a limited time not exceeding ___ months.

After about a week, this was changed to:

The privilege of the writ of Habeas Corpus shall not be suspended; unless where in cases of rebellion or invasion the public safety may require it.

The original New England version did not attempt to grant a right. Rather it tried to insure that its implementation be full and timely and that any suspension have a specific time limit.

As to why the Judiciary Act was passed immediately, first off the Constitution ordained that there should be a federal judiciary, but it didn't define the details. The Act determined the number of Supreme Court justices, defined the federal district and circuit courts and defined their jurisdictions, powers and responsibilities. Until it was passed there were no actual courts. Thus it needed to be passed as soon as possible.

As to why it addressed habeas corpus, Chief Justice John Marshall explained that in Ex parte Bollman, the case which established Supreme Court's habeas corpus jurisdiction. First off, he points out that in a country with "courts which are created by written law ... the power to award the writ by any of the courts ... must be given by written law". To this he added the observation that,

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.

It is hard to believe that the Attorney General is unaware of these facts. You could learn them easily from The Founders Constitution web site or FindLaws' Annotated Constitution, or even the Wikipedia, all using Google. For him to speculate the way he has, consigning the right to the Great Writ to the maybe/perhaps world of dubious rights never expressly granted is reprehensible.

We must not let Orwellian Double Speak and rhetorical trickery deceive us about our most fundamental rights.

Don't believe me. Inform yourself. Protect your freedom. Vote. Write your representatives. Inform your family and friends.

JimB.

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