Some time ago I conducted a sort of man-on-the-street survey of associates. I asked them what they regarded as their most important constitutional right.
There is one, and only one that in fact is overarching, protective of all others.
But before we get to that answer, we need to define exactly what a right is. Essentially, a “right” is a privilege, the exercise of which is protected by a governing entity with the authority, power, and inclination sufficient to protect it. Any diminution of any of the three proportionately diminishes the guarantee of the exercise of the right.
And so long as that governing entity retains the authority, power, and inclination, that right may be either conditional or unconditional. It can be conditioned on the circumstances and/or behavior of those under the sway of the governing entity, as determined by that entity. For example, the First Amendment right to the free exercise of one’s religious beliefs is not unconditional. For a Hasidic Jew in the US military there is not an unbridgeable right to facial and head hair length that accords with his religious norms. On the other hand, the rights enumerated in Amendments 5, 6, and 7, by their wording, are presumed to be unconditional. That is, neither the behavior nor circumstances of either the “people” or of the “person” are considered, relative to the protections afforded.
Contrary to both popular belief and what some politicians and leaders suggest, there is no such thing as a “God-given right.” If God could give the right, then that right would have been and would be universal to all persons, from all time, to all time, and that right would not be conditioned on any writing or circumstance or interpretation by any entity for its guarantee.
Clearly that has not been and is not the case. The favorite of conservatives, concerning the Constitution, is a summons to strict constructionism; if it’s not specifically in there (the Constitution), it does not exist, regardless that the right may be reasonably presumed by reference to a right that is clearly articulated. Hence, no matter that the Fourth Amendment protects “the people” against “unreasonable searches and seizures,” according to the constructionists, there is not some claimed, concomitant right to privacy. It is to the Courts, not God, to determine, and thereby grant or withhold, what is a right and what is not.
To preemptively respond to all who propose an instrument provides reference to “God-given” rights, let me insert that the only references are “. . . equal station to which the Laws of Nature and of Nature’s God entitle them . . .” and “. . . endowed by their Creator with certain unalienable Rights, . . .” Those references are not in the Constitution of the United States, they are within the preamble to the Declaration of Independence, a document that preceded by 11 years any first thought to a constitution, or even a United States.
Moreover, as precious as the Declaration is, legally it is naught but a legal brief alleging as truth and evidence the crimes committed by King George III of Great Britain that ought to entitle the colonies to a prima facie presumption of the right of independence; not so entirely different from any criminal or civil law tort brief.
One needs to be extremely careful, asserting too strongly that a legal brief — criminal or civil — contains, by the necessity merely of its being, inarguable truths. Indeed, that there is no necessity is the raison d’être for Amendment 5, Amendment 6, Amendment 7, and Amendment 8 of the United States Constitution. You just cannot have it both ways. And I don’t think you really want to.
Now to answer the question first posted above concerning the most important constitutional right. It’s at Section 9 of Article I: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” Habeas corpus — produce the body — is all that protects “persons” or “the people” from being seized in the dark of night and held incommunicado by the government, for any reason, or none, forever or for as long as the government pleases. Absence habeas corpus, all the other enumerated rights are without meaning.
In response to the recent US Supreme Court’s decision rebuffing the Bush administration relative to the administration’s selective withholding of the right of habeas corpus, Senator, and presidential aspirant, Republican John McCain called the decision “one of the worst decisions in the history of this country,” “. . . not entitled to the rights of US citizens.” And “Our first obligation is the safety and security of this nation . . .”
First, there have been a number of Supreme Court decisions that would, or should, shock the conscience much more than the one to which the good senator refers. Ruling in 1858 that Dred Scott, in Dred Scott v Sandford, was the legal property of Irene Sandford, and therefore was to be returned to her comes to mind immediately. The legitimacy of “separate but equal” in Plessy v Ferguson comes to mind as another one. More recently, the Lilly Ledbetter v Goodyear Tire and Rubber Co decision, wherein the Court found for Goodyear that, notwithstanding that Ledbetter had been a 19-year victim of Goodyear’s wage discrimination against her, or that Goodyear never argued that the discrimination was knowingly based exclusively on Ledbetter’s gender, and that said discrimination was knowingly in violation of Title VII of the Civil Rights Act of 1964, or that Ms. Ledbetter had no practical way of either knowing or discovering she had been a victim of the discrimination until, just prior to her retirement, she received anonymous notification of the fact, Ms. Ledbetter should have filed her petition within the 180-day filing window (circa 1979 – 80) stated in the Act, seems incredibly egregious on its face. I cannot speak for others.
However, I feel that there are some decisions that better fit the framework of “the worst . . . in the history of this country,” extending habeas corpus, ruling against its arbitrary denial, hardly seems to rise to the level of “worst.” That those justices dissenting — Scalia, Alito, Thomas, and Roberts — are the “Justices in the mold of those I will nominate to the federal bench when I become president,” ought to cause every American to hold his or her breath.
Here’s why McCain and Scalia, et al are not just a little wrong, they’re radically and dangerously wrong. First, Scalia’s dissent argues that will “make the war on terror more difficult” and “will almost certainly cause more American lives to be killed” is a dissent against the very spirit and constructs within the Constitution itself. Only in the instance of "rebellion or invasion" does the Constitution provide for any withholding of habeas corpus. As to who the Constitution protects, it protects "the people," a "person," and "the accused" without noting any citizenship test whatsoever! The possibility that American lives may be lost is nowhere within the Constitution noted as a legitimate reason to suspend its protections. However, being the constructionist/originalist Scalia claims he is, consistency requires he recommend that an amendment that reconciles with his opinion be proposed, passed and ratified. Until that time, we've got the Constitution we have, not the one he wants to have.
The first reference to “citizen” in the Constitution is in Section 2 of Article I. It has nothing to do with any protection, privilege, right or guarantee to a citizen, only as to the basic qualifications of those who may serve as a US representative in the House of Representatives. The same thing is true of every use of the word “citizen” until one reaches Amendment 14. Every protection enumerated prior to the 14th Amendment is to either “the people” or to the “person.” Habeas corpus within the above cited reference is absolutely silent as to people, person(s) or citizens. That’s the strict constructionist construction.
(To be accurate, Scalia prefers to consider himself an “originalist,” as opposed to “strict constructionist;” more a distinction in search of a difference, it seems to me.)
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