15 December 2007
Habeas Corpus Offshore
The adoption by our founding fathers of certain Anglo-Saxon rights, especially the Writ of Habeas Corpus, traced its roots to the Magna Carta. That was a charge imposed upon a medieval king by his nobility. All of them derived their status from their control of property. By the time of the American Revolution, however, secular positions of influence had been separated from control over land. The individual rights that men of influence insisted on in forming a republic now had a life of their own. They were not tied in the Constitution to ownership of property but to wealth-free qualification as a citizen.
The Supreme Court is about to hear arguments about whether the writ of habeas corpus affects the actions of the U.S. government outside the country’s territorial boundaries. It is hard to believe that a lawyerly interpretation of the origins of the Writ would be used to justify linking its applicability to the location in which it might be invoked. Surely, such an interpretation would never be used to exempt the government from the 14th Amendment prohibition against racial discrimination.
America proudly distinguishes itself from other democracies whose governments devolved from the administrations of hereditary royalty. Ours is a republic that does not derive its authority from control over the land, but by designation from the intellects of its people. That authority carries with it its limitations, including the Writ of Habeas Corpus, wherever it is exercised. The Supreme Court will certainly recognize that as an instrument of the people the government of the U.S. cannot disregard the rules under which it operates on their behalf. If the Bush Administration feels strongly enough about its need to suspend the rights of its captives abroad, it has the option to seek a formal declaration of war against them and, consistent with the Constitution, hold them as long as necessary until that war is won.
The adoption by our founding fathers of certain Anglo-Saxon rights, especially the Writ of Habeas Corpus, traced its roots to the Magna Carta. That was a charge imposed upon a medieval king by his nobility. All of them derived their status from their control of property. By the time of the American Revolution, however, secular positions of influence had been separated from control over land. The individual rights that men of influence insisted on in forming a republic now had a life of their own. They were not tied in the Constitution to ownership of property but to wealth-free qualification as a citizen.
The Supreme Court is about to hear arguments about whether the writ of habeas corpus affects the actions of the U.S. government outside the country’s territorial boundaries. It is hard to believe that a lawyerly interpretation of the origins of the Writ would be used to justify linking its applicability to the location in which it might be invoked. Surely, such an interpretation would never be used to exempt the government from the 14th Amendment prohibition against racial discrimination.
America proudly distinguishes itself from other democracies whose governments devolved from the administrations of hereditary royalty. Ours is a republic that does not derive its authority from control over the land, but by designation from the intellects of its people. That authority carries with it its limitations, including the Writ of Habeas Corpus, wherever it is exercised. The Supreme Court will certainly recognize that as an instrument of the people the government of the U.S. cannot disregard the rules under which it operates on their behalf. If the Bush Administration feels strongly enough about its need to suspend the rights of its captives abroad, it has the option to seek a formal declaration of war against them and, consistent with the Constitution, hold them as long as necessary until that war is won.
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