US law (except in Louisiana) also derives from English Common Law. Although the Constitution modifies Common Law in some respects, it is nevertheless grounded in it.
Well, that must is a bit strong. The law is what the law is, and applies to aliens as much as it says it does.
Because the traitor in the White House has not yet been impeached.
Let’s not turn this into a debate about the current political situation. We have another forum for that. Opinions are not generally verboten in the Comments forums, but here the potential for derailing the thread is too great. Facts, and only facts, about habeas corpus at it pertains to terrorism suspects can still be treated in this thread.
bibliophage
posting as (temporary) moderator of CSR
Taney wrote it, but the Constitution essentially requires it. Unlike, oh, say, Roe v Wade, pulled entirely out of the nether regions of the Justices who wrote the opinions granting the right in question. 
Eh, if it were obvious from the Constitution, then the Supreme Court would never have needed to take the case. Lincoln, at least, didn’t take it as a given that suspending habeas corpus was a purely legislative function. Anything the Court says about anything will of logical necessity be their interpretation of the Constitution (acknowledging that some interpretations might be more logical or better supported than others).
Hi Bibliophage,
Let me assure you that my only agenda is to ask a couple questions I felt was raised by the article.
Are certain rights, such as habeas corpus and the presumption of innocence, now only available to U.S. citizens under U.S. Law?
What rights does a person lose once they have been accused of terrorism as opposed to other criminal charges?
These are questions about the Law and not Politics, and I am hoping to get answers from the same viewpoint.
Thanks
Not so. Indeed, the long-established right to privacy was not even the deciding point in Roe v Wade. The real issue was whether a fetus is a person, and consequently has rights. The court ruled that in a thousand years of English and American statute and case law, the weight was overwhelmingly on the side that a fetus is not a person – a potential person at the most, and nothing at all at the least. Given that, a woman’s common-law right to privacy trumps a fetus’s non-rights.
Roe v Wade could readily have been rendered effectively moot decades ago by legal actions to make a fetus a person, without the nearly impossible effort of amending the Constitution to do it. But right-wing politicians have preferred instead to point to the absence of an explicit right to privacy in the Bill of Rights, and rely on the punters’ wholly incorrect understanding of the Constitution as a sort of set of axioms from which all law must be logically derived. One might almost think that they preferred pandering to the proles to taking the risk that they, themselves, might be inconvenienced someday by an effectual anti-abortion law. (The rich, of course, were never seriously inconvenienced in the old days, but a new law would shine a new and harsh spotlight on the topic, especially in this age of “Gotcha!” journalism.)
I disagree, which may be a matter of philosophy.
The Constitution does not say at any point that only Congress can suspend habeas corpus. That’s an interpretation of where the words fall. Two totally different things.
Similarly, the words martial law appear nowhere in the Constitution. That martial law and the suspension of habeas corpus are identical terms cannot be found anywhere in the Constitution. It is solely an interpretation of what the Constitution is supposed to mean.
Now, these interpretations may be matters of long-standing case law or holdovers from the common law or other legal practices. I can’t say. However, I find as much fault in the argument that the Constitution says directly that only Congress can suspend habeas corpus, which is identical to martial law, as the argument that states that Roe v. Wade isn’t constitutional because the words aren’t in the Constitution.
Either it’s all interpretation or it’s not. And given how few cases ever need to go to the Supreme Court without requiring an interpretation of the words, then I have to say it’s all interpretation.
Whether the interpretation is correct is a different matter. My reading of Supreme Court history tells me that practically every case [hyperbole] winds up conflicting and reinterpreting a previous decision, so even when everybody agrees and approves, the Constitution is obviously infinitely malleable. I can follow an argument that says that an interpretation is wrong, but not one that says that the SC can’t interpret.
Could the distinguished gentlemen of the bar comment?
John, I’m not going to get into an involved discussion of Roe here, but despite what you say, the MAIN requirement to the opinions establishing the “right” is the existence of a right in the first place. Such a right does not exist in the Constitution, never did exist in the Constitution, and was wholly and solely created out of thin air by liberal justices who wanted to read the Constitution as a document to protect certain behaviors of the American people from the social dictates of a relative minority with sufficient power in the legislatures of certan states to prohibit those activities.
The statement in Article I regarding suspension of habeas corpus, by comparison, cannot be read without torture to mean anything but what Taney wrote, at least as regards who can suspend it. Article I is about the Legislative functions of the federal government. Section 9 is about the Limits on Congress. Therefore, the statement that, “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” must be a limit on Congress’ power. The absence in any other portion of the document of a statement that the writ can be suspended means that it cannot be suspended in any other way. To say that this interpretation is imposed by any particular justice is torturous at best. The fact that Lincoln disagreed was not so much that he disagreed with the principal as an indication he felt it didn’t matter whether or not it was “constitutional;” he was doing what he felt necessary to protect the republic. Hence his philosophizing about how bad it was that he was violating the constitution in this matter.
It’s like saying that a court decision asserting that “the right to bear arms … shall not be infringed” means that the federal government cannot keep people from owning guns is an interpretation and, thus, the creature of the author of the decision. It is not; it is the Constitution’s obvious meaning. It’s when we start trying to read things into the document that it doesn’t obviously say that we have an ability to assert that a particular justice or set of justices have created a particular rule.
Lastly, it certainly isn’t the case that the Supreme Court only issues decisions where a reasonable difference of opinion exists regarding interpretation. Frankly, some of the decisions issued by the Court are nothing more than thinly veiled versions of, “What was the Circuit Court smoking when they said THAT??” :smack:
For what it’s worth, the opinion itself is at http://www.tourolaw.edu/patch/Merryman/, and while dated, is not impossible reading - you may want to give it a try. Aside from what’s already been said, an interesting question he raises is: what happens if the President doesn’t want to go along with the ruling? (And of course in fact he didn’t.)
And some of us over here, too.
That is a very fair question. Personally I think it is an error to consider this at all, but maybe not a totally obvious one.
Some of the protections in the Constitution are explicitly granted to “the people,” some to the States, and some are not so clear. Nowhere does the Bill of Rights mention citizens - only “people,” “persons,” etc. (The body of the Constitution does mention citizenship where it matters - eligibility for public office, for instance.) As to the rights of defendants in criminal trials specifically:
Amendment 4: search and seizure: protects “the people” and “the persons or things to be seized.”
Amendment 5: indictment by grand jury, double jeopardy, self-incrimination, due process: “no person” is subject to the prohibited acts.
Amendment 6: speedy and public trial, confrontation of witnesses, compulsory process for obtaining witnesses, assistance of counsel: “in all criminal prosecutions, the accused.”
Amendment 8: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
So at least the sixth and eighth amendments protect every accused, pretty clearly the 5th also, and very likely the fourth too. Personally I find it hard to understand how a criminal justice system could justify calling it “justice” to apply any of these rules on the basis of citizenship, legal residence, or any standard other than: this is justice, that other behavior isn’t. That is especially true when you consider that most of these rules - especially those in the 5th and 6th Amendments - are designed to protect not only the defendant but also the integrity of the system, specifically in regard to its ability to (reasonably) reliably result in truth.
No one knows but a handful of people in the Department of Justice. (And I do mean a handful.) If they are not subject to the jurisdiction of the courts, then there are only two legal statuses they could have, as far as I can tell: lawful prisoners of war, who must be subject to the laws of war, or unlawfully detained. In my opinion, the military has the legal right to hold people only as prisoners of war, or as strictly temporary detainees to be turned over to civilian authorities at the earliest opportunity.
Only on a few points; this is getting pretty far afield.
Correct.
Not really correct. There is a fairly obvious or highly probable meaning of what was intended, and there are far less likely meanings. “Interpretation” is what you do any time you read anything - even numbers, if your mathematical skills are either very poor or very advanced. Some things can only be read sensibly by putting them in context within the document; others also require putting them in historical context to make sense of them. (For instance, what does “cruel and unusual punishment” mean? You cannot interpret that phrase correctly without the correct historical and linguistic context.)
Right. What you can find is (a) the enumeration of specific powers of the President and of Congress, and then (b) Articles 5 and 6, plus Amendments 9 and 10, which give them significant context. Basically, it’s hard to find a basis to say the President or Congress has a power that is not at least fairly implied by (respectively) Article 1 or 2.
A side issue, really, but note that most of the cases the Supreme Court hears do not involve interpretation of the Constitution.
That’s extreme hyperbole; actually, I’d say, just plain wrong.
I have yet to see anyone suggesting that.
P.S. - Yes, I am a lawyer - and one that works for the Federal Government and formerly the military (but, I hasten to add, with no official responsibility whatsoever for any of these issues).
I’m not a lawyer, but there are US laws which apply differently to Citizens(Nationals), Residents and “generic aliens”. Actually this is true for most countries: I’d bet that Australia has different requirements for disembarking off a plane from Thailand depending on whether you’re an Australian citizen, someone from another country with no Visa, someone with a tourist Visa… Spain has different procedures for “EU citizens” and “rest of the world.”
Apart from the letter of the law sometimes stating that it applies to certain groups but not to others, there is also the matter of the interpretation of the law. In Spain the only judges whose interpretation of the law is more important than the letter is the Tribunal Supremo and the Tribunal Constitucional, both of which can order that a law be rephrased for clarification. In the US it sometimes seems as if precedent can be as important or more as what the letter of the law says, yet the law itself doesn’t get “updated” (remember I said I’m not a lawyer).
Right, but the ones you refer to (on immigration) naturally would have to be different. Criminal procedure possibly could be different for non-citizens, but there’s no logical reason why it must be.
It doesn’t just seem that way; it is. That’s the key difference between “civil law” countries like Spain (and France and Germany), where the written legal code governs everything, and “common law” countries (like UK and USA) where development of the law is also by judges. The written law does get updated too, but usually if Congress changes its mind – or if Congress decides the courts’ interpretation, even if the most obvious and logical, is not what they really wanted.
What does it matter if a right isn’t explicitly put forth in the Constitution? I quote: “IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Constitution itself says that the line of reasoning that a right not enumerated in the Constitution doesn’t exist is spurious.
Not the UK, but rather England (and, as far as I know, Wales and Northern Ireland, too). Scotland is Civil Law. And the USA must also be qualified, as Louisiana is Civil Law, too, though the federal government and the other 49 states are Common Law.
Good point, or at least good nitpick; if I were trying to be that precise, I should have said “Great Britain.” But actually Scotland has a fairly unique system; unlike many European countries, their civil law is largely uncodified, and they do use precedent for some purposes (although not binding precedent, which is relevant to this discussion).
Right; Louisiana does have a code, and precedent is of little importance in forming the state’s law.
Not so. Scotland is also part of Great Britain.
Great Britain: England, Wales, & Scotland
United Kingdom: England, Wales, Scotland, & Northern Ireland
British Isles: England, Wales, Scotland, Northern Ireland, the Republic of Ireland, & the Isle of Man
The problem is that the Roe decision claims the Constitution DOES provide such a right.
Now hearken to your reasoning:
ACTIVIST JUDGES: The Constitution forbids states from restricting abortion!
PEOPLE WHO CAN ONLY READ ACTUAL WORDS AND NOT VAPOR TRAILS: It does? Where?
AJ: That’s not important! The Constitution says that just because it doesn’t mention a right doesn’t mean it’s not there!
PWCORAWANVT: So… if the Constitution says it’s there, it’s there. And… if the Constitution doesn’t say it’s there… it’s there, too?
AJ: Yes.
PWCORAWANVT: Clearly we made the wrong career choice.
Then your position is that the actual words of the Ninth Amendment don’t mean what they clearly say, because only the actual words of the Constitution mean what they say?
You continue to confuse the heck out of me in this thread.
No. My position is that the Ninth Amendment is not itself a source of substantive rights. It is simply a a rule of construction, showing that merely because these rights are listed in the Constitution does not mean that the federal government gets powers in areas not listed. This is consistent with Madison’s expressed intent upon introducing the language. The Ninth Amendment is not a positive source of rights.
And, indeed, how could you claim it to be? You say it provides a federal power to prevent states from restricting abortion. I say it compels Helen Hunt to come over to my place and give me a nice back rub tonight, and it further compels my wife to not divorce me following such a visit. Who gets to decide which of us is right?
If your answer is The Supreme Court, then you concede to nine unelected judges with lifetime appointments the ability to create new law out of whole cloth, rather than simply interpret the law crafted by elected legislators. That is unwise, and a slap in the face to our notions of self-government.