Thursday, January 18, 2007

Habeas Corpus ad Subjiciendum and original intent

Kudos to Doc below.

Habeas Corpus ad Subjiciendum, also known as "The Great Writ." As the Supreme Court stated, `[t]he writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.'

Such conduct just demonstrates the lack of regard that this administration has for the constitution and their abject hypocrisy in proclaiming their love for "original intent."

The revolutionary thinkers valued the "Great Writ," and of course presumed its universal application. Another galling aspect of their hypocrisy goes to the very heart of revolutionary sentiment. No, it wasn't "no taxation without representation." That was a shibboleth, albeit one well-used by Sam Adams and the Sons of Liberty. They didn't want "representation," as the British parliament in the late 18th century was not a "representative" body in any sense of the word. Taxes on the colonies were also much lower than those levied in Britain, and here, they were almost exclusively transactional (i.e., avoidable).

No, what angered the colonists were "general writs," the right and power to forceably search without cause. You see that definitively written into the 4th Amendment, which includes elements of both cause and specificity. This administration trashes the very basis for the existence of revolutionary America as they become more invasive.

The framers would also be appalled at this war. There are libraries full of explanations of the American Revolution, dating WAY back historiographically speaking to (fellow DePauw alum) Charles Beard who wrote that the founding fathers rebelled basically to avoid paying off their debts to English merchants. You find a much more nuanced view in Bernard Bailyn's Ideological Origins of the American Revolution. In this seminal, albeit dated, work, Bailyn traces revolutionary ideology back to English opposition writers, and grounds revolutionary thought in the notion of "republicanism" and "republican" ideology. This is a political theory that in effect establishes a duality between good and evil, cast as "virtue" and "corruption." The thinkers of the day looked to the few "pure" republics, Athens and Rome (even though their historical grasp of classical Athens and the Roman republic was quite idealized, and the history was just not very good) and saw righteous states overcome by "corruption."

There were two key roots of "corruption" in the revolutionary ideologue's view. The first is selfishness. While we tend to think of our country rooted on capitalism, its revolutionary ideology was based on selflessness and the "commonwealth." According to republican (obviously with a lower case "r") theory, greed is NOT good, it is destructive.

The other great fear of republican thinkers was the mischief of "standing armies." As these 17th and 18th-century theorists saw it, and of course have been proven right time and again, standing peacetime armies are a BAD thing. The framers opposed them because hereditary rulers, often being of less than full control of their mental faculties and flush with the notion that they were God's instrument (thankfully, THAT never happens!) tended to use standing armies to make mischief.

Republican theory may not explain the revolution (I don't think it does), but it explains a lot of constitution-making. For example, the standing army fear is why you see the militia featured so prominently in the Constitution. The 2nd Amendment does not exist to allow Cooter to protect his "rahts" with his squirrel rifle. Rather, it is there to prevent the federal government from disarming the militias.


The framers also blended the war powers between Congress and the president so that this most solemn of obligations and actions would be carried out thoughtfully and deliberatively. Admittedly, the constitutional language is mushy. The Articles of Confederation vested the war power in Congress, while the constitution obviously tempers that with the Commander-in-Chief notion. However, the framers clearly expected a congressional role, as Congress is authorized to "raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years"

In other words, the framers expected congressional diligence and oversight. Simply put--do your job. At LEAST every two years. They would not be de-funding the troops. They would be following the constitution.

I would refer you to the archives over at Alternet for the brilliant writings of my pal Joshua Holland on this topic.

2 comments:

I'm Not Ned said...

Thank you Peter, this is a fantastic piece.

Peter said...

Thank you, I'm not ned. Much appreciated.