A Stitch in Haste

Query: Does the Constitution apply to citizens, non-citizens, or both?

Answer: Actually, it's a trick question: The Constitution applies to the government, not to the people it governs.

A point hopelessly lost on NRO commentator Andrew C. McCarthy:

Congress cannot "suspend" habeas corpus by denying it to people who have no right to it in the first place. The right against suspension of habeas corpus is found in the Constitution (art. I, 9). Constitutional rights belong only to Americans[.]

This is, of course, utter nonsense. Indeed, it is about as flunk-the-final a statement as one could make about constitutional law.

Article I grants no rights, to citizens or anyone else. Article I instead limits Congress -- which is not the same as "conferring rights."

Article I achieves this limitation of Congress in two ways.

1. By "clearly"* enumerating the powers Congress has. If Article I does not grant Congress a specific power, then Congress does not have it.

2. By "clearly"* denying Congress certain unconditionally unjust powers: bills of attainder, ex post facto laws, direct taxes, titles of nobility -- oh, and suspension of habeas corpus when not in a state of rebellion or invasion.

The words "citizen," "alien" and "terrorist" are wholly irrelevant to either prong. There is, contrary to McCarthy, no "right against suspension of habeas corpus" to be rationed to citizens over non-citizens, or to be denied (alleged) terrorists. There are no rights at all in Article I. Article I is not about "citizens," "aliens" or "terrorists." Article I is about Congress, and about that which Congress may and may not do. To assert, as McCarthy does, that Article I (as opposed to, say, the Fifth Amendment) "does not apply to terrorists" is to reveal a fundamental and embarrassing ignorance of the basic structure of the Constitution itself.

In any case, as I blogged previously: No amount of sophistry -- even McCarthy's retarded version of it -- can change the fact that we are not now in a state of "rebellion or invasion." This is not a difficult concept, no matter how desperately McCarthy or any Bush apologist wants it to be.

And -- would it do any good to say it again? -- not all those who will be denied habeas review under the Alien and Sedition Act Military Commissions Act of 2006 will turn out to be terrorists. At least a few innocent people have already been detained in the War on Terror, including at Guantanamo, and more undoubtedly will be after the bill is signed into law -- potentially including American citizens on American soil. And -- this cannot be overemphasized -- the interplay of the Commissions Act and the Supreme Court's War-on-Terror jurisprudence will likely result in the guilty getting more justice than the innocent. Only once the government has a "slam dunk" case against a detainee will they proceed to a military commission or civilian trial. The rest, for whom the government's case is flimsy -- those precisely more likely to be innocent -- will languish indefinitely. And, again, this can potentially include American citizens detained on American soil.

Madness. Sheer madness.

(Via How Appealing.)

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*Okay, maybe not so clearly, especially to those who do not wish for them to be clear. But all efforts to cure blindness are wasted on a man who merely refuses to see.