Ted the Penguin

Ignorantia Iuris Neminem Excusat

Alberto Gonzalez and Arlen Specter today in a Senate Judiciary Committee hearing,

Specter: Now wait a minute, wait a minute. The Constitution says you can’t take it away except in the case of invasion or rebellion. Doesn’t that mean you have the right of habeas corpus?

Gonzales: I meant by that comment that the Constitution doesn’t say that every individual in the United States or every citizen has or is assured the right of habeas corpus. It doesn’t say that. It simply says that the right of habeas corpus shall not be suspended.

Habeas Corpus was a part of British common law in 1679; which became part of U.S. law when the constitution was written. Almost every state’s existing common law, except for Louisiana which was derived mostly from the French, is based off of British common law at the time of the nations founding. (To summarize common law, statutes, or formal written laws, are generally understood always to be interpreted in light of the common law tradition, and so may leave a number of things unsaid because they are already understood from the point of view of pre-existing case law and custom.)

Many people, see above, will say that the constitution doesn’t expressly grant the writ of habeas corpus; that’s because it was considered to be a part of common law; and didn’t need to be expressly stated.

Eisenhower,

Why are we proud? We are proud, first of all, because from the beginning of this Nation, a man can walk upright, no matter who he is, or who she is. He can walk upright and meet his friend–or his enemy; and he does not fear that because that enemy may be in a position of great power that he can be suddenly thrown in jail to rot there without charges and with no recourse to justice. We have the habeas corpus act, and we respect it.

Churchill,

Nevertheless, this short-lived legislature left behind it a monument. It passed a Habeas Corpus Act which confirmed and strengthened the freedom of the individual against arbitrary arrest by the executive Government. No Englishman, however great or however humble, could be imprisoned for more than a few days without grounds being shown against him in open court, according to the settled law of the land. Wherever the English language is spoken in any part of the world, wherever the authority of the British Imperial Crown or of the Government of the United States prevails, all law-abiding men breathe freely. The descent into despotism which has engulfed so many leading nations in the present age has made the virtue of this enactment, sprung from English political genius, apparent even to the most thoughtless, the most ignorant, the most base.

Jefferson,

Let him say what the government is, if it be not a tyranny, which the men of our choice have conferred on our President, and the President of our choice has assented to that the men of our choice have more respected the bare suspicion of the President, than the solid right of innocence, the claims of justification, the sacred force of truth, and the forms and substance of law and justice. In questions of powers, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.

And yes, habeas corpus has been suspended in the past. That doesn’t mean it was right then, or is right now.

This all coming from the man who is the chief law enforcement officer of the United States government. What did we do to deserve this?

Via