I Don't Think So

In perhaps the most astonishingly narrow read of the Constitution I've heard since the infamous "cruel and unusual" take on the Eighth Amendment, Attorney General Gonzales has suggested to the United States Senate that there is no Constitutional right of habeas corpus. How he can on the one hand admit that this is one of our most cherished rights, going back through a thousand years of Anglo-American jurisprudence, and at the same time insist that it cannot be found in the Constitution (which explicitly indicates that the right shall not be suspended) is beyond me.

His argument is based on the idea that the explicit words of the Constitution do not grant such a right. In other words, unless there is an affirmative grant of the right to individuals, the right does not exist. If that's the right way to read it, there is no right free speech either; only a limitation on the Congress' right to restrict it. But obviously that's wrong. If you're not a fan of free speech, maybe you're a fan of the free exercise of religion or of gun ownership. All of those rights are framed negatively, in terms of restricting the ability of government to regulate the exercise of those rights, rather than positively, in terms of indicating that these are individual rights.

This, of course, is what the Ninth Amendment was written to avoid. It explicitly states that unenumerated rights are reserved to the people. Since we know from the text of the original Constitution that the writ of habeas corpus exists, we can also know from the Ninth Amendment that it is a reserved right that individuals do indeed hold.

Gonzales' toadying and sophistry makes me wish for a return to the days of John Ashcroft. (Well, no, not really.)

UPDATE: A follow-up analysis from Eugene Volokh puts the exchange in a broader perspective and provides a partial (but not complete) defense of Gonzales. Certainly it's worth it to take the remarks in context, but it still looks like the AG got flustered while fencing with Arlen Specter and made a statement that appears to indicate a very narrow view of the Constitution. Certainly I can understand getting flustered and misstating something, but one would hope that, particularly under these circumstances, a "clarification" would be forthcoming.