As usual, our liberty is under attack by the federal government. An appeals court has just upheld a ruling that prisoners held in Guantanamo Bay are not entitled to habeas corpus, and thus, cannot challenge their detention in court.

So, once again, the federal government, through its court system, has overstepped the restrictions of the Tenth Amendment, by assailing the Constitution and its principles of limited government. What a surprise! An agent of the government upheld the actions of the government!

As reported by Reuters:

An appeals court on Tuesday upheld the part of a tough anti-terrorism law signed by President George W. Bush that took away the rights of Guantanamo prisoners to challenge their detention before U.S. federal judges.

The United States Constitution brought into being a government of limited powers, which is quite unusual in the pages of world history. This government is one in which the only powers it has are those that are listed in the Constitution itself. “Positive grant” is what this is called in Constitutional legalese.

Fearful that liberty would still be violated by politicians hungry for power, the Founding Fathers added the Bill of Rights. To ensure the principles of limited government through positive grant, the Tenth Amendment was enacted. It explains this concept quite clearly:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Thus, under the Constitution, the federal government is a government of enumerated powers rather than one of general or unlimited powers. The issue here, then, is what constitutional right the federal government has to exert such power – the limitation or elimination of habeas corpus – over people in its jurisdiction.

The only place in which habeas corpus is even mentioned in the Constitution can be found in Article I, Section 9:

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.

But, don’t just believe what you see here. I suggest you read the Constitution and the Bill of Rights, and then ask yourself this: what exactly is the power of the federal government in regards to habeas corpus?

Let’s examine this a little further:

  1. As enshrined in the 10th Amendment, the federal government operates under the principle of positive grant – meaning that it can only exercise delegated powers listed in the constitution.
  2. According to the Constitution, the only reference to limiting habeas corpus is “in cases of rebellion or invasion”

Since the qualifiers for suspension do not exist, the federal government cannot restrict, limit, or eliminate habeas corpus for anyone. Period.

Of course, there are war-lovers out there that feel the government can suspend habeas corpus because we’re at war. We must put up with invasions of civil liberties – and we must trust the politicians to make us safe.

In fact, one of the biggest reasons we even have the Constitution is to protect us from politicians, like the ones we currently have, during times of stress or danger. Yes, some constitutional provisions do mention exceptions, but there are no exceptions specified for simply being “at war.”

Anytime this issue comes up, invariably you’ll find people who claim that the Constitution doesn’t apply to foreigners – only Americans. The important point is that the Constitution doesn’t apply to Americans, it doesn’t apply to citizens, it doesn’t even apply to “people.” It applies to the federal government.

The body of the Constitution tells the federal government just what it is allowed to do. In some places it explains how the government is supposed to do things. The Bill of Rights tells the federal government what it is not allowed to do. Nothing more, and nothing less.

What you won’t find there, is the ability to restrict habeas corpus except in the specific instances mentioned above.

The essential point is that until a suspected “terrorist” receives due process – a fair and impartial trial – you can never know for sure whether or not this person even IS a terrorist! So, even if you think that foreigners shouldn’t have any rights, you still can’t be sure that they’re terrorists without due process – well, unless you trust everything your government does.

The Bush administration has now established procedures where it can lock up suspects for life without giving them access to an attorney, an appearance in court, and without the ability to tell anyone.

Now that we’ve allowed the government to have this power, the power to restrict inalienable rights when the president tells us it’s necessary, the question to ask is this: What group is next? What will be the next group that the politicians will determine to be unworthy of the Constitution and the Bill of Rights?

Consider this scenario:

You get arrested by some government agents because you’ve been misidentified as a foreigner who has worked with what the feds call a “terrorist organization.” They rush you out of the country on a CIA plane and take you to a prison in Eastern Europe. The jailers torture you endlessly to get information from you. You tell them nothing because you know nothing!

You tell them you’re an American and you’ve done nothing wrong, but this doesn’t stop the CIA torturers and the foreign thugs working for them. You’re told that you’ll never get released and you’ll never be allowed even a court hearing – because terrorists like you are just too dangerous to allow such liberties.

The big problem, though, is that you’re not able to prove that you aren’t a terrorist. You’re not even able to prove that you’re an American citizen. Why? Because you no longer have the right to challenge your detention as a foreign terrorist! You don’t get an impartial judicial hearing, you aren’t allowed an attorney, you can’t confront your accusers, and you definitely won’t get a trial by a jury of your peers.

But, as the President, the Congress, the Courts and much of the media have told us, you don’t deserve those rights because you’ve been accused of being a “terrorist” and a “foreigner.”

Fear-mongering? Sure. Call it what you’d like. But the abuse of power is not the real thing to be concerned about; it’s the power to abuse. And that power is real.

As the Founding Fathers knew so well, the greatest threat to your liberty comes from your own government. That’s the reason they wrote the Constitution. Going further, that’s the reason we have the Tenth Amendment – to limit the power of the government – to stop it from doing things that will infringe on your liberty.

Well, we shouldn’t worry about all this because your government would never do anything so awful – right? All those prisoners in Guantanamo and Eastern Europe must be horrible terrorists – and foreigners too! If they weren’t, your government would definitely let them go, right? Yeah. Sure.

If you really believe that, just go back to your TV. Go watch some sports or a fun little sitcom. You have absolutely nothing to worry about because your government is “protecting” you.

Michael Boldin

The 10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”



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