Wrong on Habeas Corpus

By Nat Hentoff

Published February 5, 2007

This is an astonishing dismissal by our chief law enforcement officer of the oldest fundamental right in Anglo-Saxon law that even precedes the Magna Carta of 1215.
Alberto Gonzales is dead wrong.

The Magna Carta has resonated for centuries and states: "No free man shall be taken or imprisoned... except by... the law of the land." In 1679, Parliament passed the Habeas Corpus Act that also extended the "Great Writ" to any citizen arbitrarily imprisoned "beyond the seas." In our country, as the Constitution was being proposed and debated, Thomas Jefferson, then our envoy to Paris, wrote to James Madison insisting that habeas corpus be imbedded in the body of the Constitution as it was. Jefferson even objected that habeas could be suspended during an insurrection or invasion. He didn't want any tampering with habeas corpus. He lost on that clause.

Alexander Hamilton, in the Federalist Papers, wrote that "the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny." Hamilton cited the 18th-century English jurist, William Blackstone, whose commentaries are still referred to in courses on the law: "Confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten... is a... dangerous engine of arbitrary government," said Blackstone.

Hamilton was convinced that habeas corpus was such a strong anchor of our rights that he claimed a separate Bill of Rights (the first 10 amendments to the Constitution) would not be necessary. Madison and George Mason overruled him on that.

I would recommend urgently that Mr. Gonzales read the chapter on habeas corpus in professor Leonard W. Levy's "Origins of the Bill of Rights" (Yale University Press, 2001). For many years, Mr. Levy's many books and articles gave given me a continuing graduate-school course on why we are Americans. In "Origins," he also summonsSir William Blackstone into the 21st century, noting that in his 18th-century "Commentaries": "Blackstonedescribed habeas corpus as 'the most celebrated writ in the English law' and available to 'every subject of the kingdom that superseded all other proceedings and should not be evaded or delayed.' " Surely, Mr. Gonzales must have heard of Blackstone during his law-school years as well as our celebrated Chief Justice John Marshall, who rooted habeas corpus into American law. In the 1807 case, Ex Parte Bollman, Marshall congratulated Congress for enacting a system of federal courts that thereby gave judges the authority to issue writs of habeas corpus "this great constitutional privilege." It could be that Mr. Gonzales is critical of Justice Marshall as "an activist judge" because he established the power of the Supreme Court to declare acts of Congress unconstitutional through judicial review. But Justice Marshall's opinions on this and habeas corpus remain the law of the land. Accordingly, habeas is indeed guaranteed to every individual in the United States, contrary to the attorney general's statement to the Senate Judiciary Committee.

I would also suggest to Mr. Gonzales that he look into the chapter on habeas corpus in the four-volume "Encyclopedia of the American Constitution" (Macmillan 1986) of which Leonard Levy was the editor in chief. The chapter emphasizes that "a measure of the state of liberty in the United States is that so much of our constitutional liberties can be taken for granted." It continues: An essential definition of our freedom "from arbitrary authority" is habeas corpus and "the existence of the Great Writ precisely in its taken-for-granted quality plays a major role in supporting and reinforcing the conditions of freedom."

It is a pity that the chief law-enforcement officer of the United States not only does not take habeas corpus for granted, but says that it is not guaranteed to all of us. If our attorney general doesn't know that, consider how many students throughout our school systems may also be uneducated in the Great Writ -- and its history. How would the president do in an unannounced quiz on habeas corpus?