Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Saturday, January 20, 2007

LTG -- help!

Okay, the liberal blogs are all over attorney general Alberto Gonzales for this exchange (video at link):

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.
But a diarist at Daily Kos convincingly claims the AG is right, and after all, he is the Attorney General! So LTG or any other Constitutional experts out there -- who is right?

1 comment:

Anonymous said...

I think the diarist at Daily Kos has it wrong. Forgive me for a bit of a legal dissertation, but, er, you asked for it.

First, let us consider Ex parte Bollmann. There, the question was whether the Supreme Court could grant habeas corpus to free two prisoners confined by executive power in the District of Columbia. Both were (Bollmann and Swartwout). The facts are not recited in the clear way they would be in modern day courts, but the gist of it is that they were confined by the Jeffersonian administration for some actions in New Orleans (then only four years part of the USA). The Supreme Court issued a writ of habeas corpus and simultaneously certiorari, to hear the appeal. The SC said this was within its jurisdiction as provided by statute. It then dismissed the charges against these men. This was very much a piece of judicial activism. It was also fairly political (as Marbury had always been) in seizing power from the executive.

Ex parte Bollmann did not interpret the constitutional clause that we are discussing in this post. The case did not consider the ultimate question that the DailyKos writer claims it does: could federal law effectively eliminate the writ of habeas corpus by refusing to vest the right to grant it anywhere in the federal courts. "The inquiry therefore on this motion will be, whether by any statute, compatible with the constitution of the United States, the power to award a writ of habeas corpus, in such a case as that of Erick Bollman and Samuel Swartwout, has been given to this court." Marshall did not say that habeas corpus would not exist at all but for written law. Rather, he was employing a standard canon of judisprudence: do not reach constitutional issues unless you have to. He was also following Marbury, where he slapped Jefferson in the face by declining to exercise jurisdiction, although statutory, on the basis that the statute was unconstitutional. Here, Marshall read the statute as broadly as possible, and did not question its constitutionality.

Also, the issue was where the power to issue writs of habeas corpus lay, and its breadth. Did the Supreme Court have the power to grant habeas corpus in an appellate capacity, if the circuit court of the District of Columbia refused to do so? Would the SC be able to grant writs to those confined by states? Marshall answered yes to the first, no to the second. Again, based on statute, not the constitution.

As an aside, I should not that when it comes to the suspension of the writ of habeas corpus, Marshall writes, "If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so. That question depends on political considerations, on which the legislature is to decide. Until the legislative will be expressed, this court can only see its duty, and must obey the laws." Marshall makes it clear this issue is not for the executive. That is in keeping with his federalist, anti-Jeffersonian stance.

So, Ex Parte Bollman does not stand for the proposition that the constitution does not require that habeas corpus power be reposed somewhere. That question was not taken up by the court. I think it is impossible to read the ban on suspending the privilege of the writ of habeas corpus without concluding that this requires that the power to issue the writs be vested somewhere in the federal judiciary. The writ was not "guaranteed" per se because they wanted to have some exception for public safety. The framers made a narrow exception only cases of rebellion or "actual invasion."

The question of who may apply for a writ of habeas corpus is also one that Marshall would say was up to the legislature to define. Only if he viewed the legislation as possibly unconstitutional would he confront the issue of whether there were any constitutional limits. This is a very complicated question of jurisdiction. Jurisdiction is a multifaceted concept. At international law, we discuss the right of states to exercise the "jurisdiction to prescribe law," or the "jurisdiction to enforce" law, or the "jurisdiction to adjudicate." The latter two types of jurisdiction are put into the judiciary, which then has its own rules of jurisdiction. A federal court must have personal jurisdiction over the defendant and subject matter jurisdiction to act in any case. Gonzales is correct that the constitution does not settle these issues by a plain reading of its text, but there is no reason to conclude that, as he seems to, that the executive or legislature have the plenary authority to circumscribe the writ to exclude certain persons from it.


// posted by LTG