Last week, there was controversy at dKos over whether AG Gonzales was justified in his claim that "There is no expressed grant of habeas in the Constitution". There were many diaries, but perhaps the most prominent were mcjoan's call for Gonzales's impeachment "for his willfully obtuse interpretations of the Constitution" and neoperiapt's, which came to Gonzales's defense and purported to "debunk" mcjoan's post.
Well, now John Dean has chimed in. neoperiapt based his argument on a 1980 book on the Constitution and habeas corpus. Dean on the other hand bases his argument on a 2001 book on the same subject. It thus appears that the reason neoperiapt thought Gonzales was right is that neoperiapt was using outdated scholarship.
I am not a lawyer, and John Dean is a very clear writer, so I will be brief, and suggest you go directly to Dean's post. The basic issue turns around the problem that the Constitution does not directly assert the right of habeas corpus, but merely "implies" it. That allows Gonzales to claim that the right is not really in the Constitution.
Using Eric Freedman's 2001 book Habeas Corpus: Rethinking the Great Writ of Liberty, Dean is able to show that Gonzales relies "on arguments rejected in the 18th Century when offered by those who opposed the adoption of our nation's founding charter". The best way to see the fallacy of Gonzales's line of thinking is to realize that if Gonzales is right, then other rights specified in the Bill of Rights don't really exist, either.
Following ratification of the Constitution, a Bill of Rights was added - protecting freedom of the press and religion and other rights. Under Gonzales's reading of the Constitution, however, the fact that several of these amendments are stated in the negative means the Constitution failed to expressly grant these rights as well.
Consider, for example, the First Amendment's prohibitions that "Congress shall make no law respecting..." the free exercise of religion, freedom of speech, or freedom of the press. Following Gonzales's view, these provisions only say what Congress cannot do - they are silent on whether any rights to free exercise, free speech, or a free press ever existed in the first place.
So, presumably, if Gonzales is correct, the President could do away with any or all of these rights; since they were not expressly granted by the Constitution, he is free to do so. After all, if Gonzales' view were correct, the right of habeas corpus has not been expressly granted, suggesting it does not really exist. Why would not the same result occur for other rights referred to, but not established in so many words, in the Constitution? Fortunately, the Attorney General's approach is wrong.
I hope this will settle the matter once and for all. It turns out that common sense and constitutional law are not so far apart after all.