I think habeas corpus is a core centrist issue. It should be the foundation of any discussion about the law, the basis on which the center can bring together left and right. Habeas corpus was suspended by the previous administration to deal with the post-9/11 emergency, and has been restored by the current administration.
Some people argue that habeas corpus is a right of citizens, but does not apply to anyone else we capture and call an enemy. Some even want to strip citizens of their legal rights if the government calls them an enemy.
Last night I got to ask the Chief Justice of the Kentucky Supreme Court something that has been bothering me: is habeas corpus a fundamental human right, or a right granted by the state that applies only to citizens? Justice Minton had no better answer than I did; fundamental human rights is not an issue that state courts rule on. But the discussion led in interesting directions afterwards.
On the one hand, I think that suspending habeas corpus is about the most dangerous habit any government could get in to. If the government can imprison anyone without even a chance to establish their right to a charge and a trial, the rule of law is destroyed. On the other hand, I am reluctant to declare that there is such a thing as a fundamental human right, absent an authoritative body to make it stick. Rights are rights against the state, and ultimately the state or a state-like body (like the International Criminal Court in the Hague) has to enforce rights to make them real.
Mrs. G., who is a lawyer, suggested a helpful middle position: habeas corpus has been a state-made right that applies to all English-descended states since Magna Carta, which applies to all people within that state. This means all the people under the hand of American law, whether citizens or not, have a right to habeas corpus. This seems to me a sensible position - not simply at the whim of the current government, but not unrealistically universal.
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"Rights are rights against the state, and ultimately the state or a state-like body (like the International Criminal Court in the Hague) has to enforce rights to make them real."
Rights are not just rights against the state. Rights include (among other things) justifiable insistence on trespassers leaving your land or justifiable self-defense against assault.
The more pressing question here is whether a state body is required to make rights "real". Most fundamentally, the question can be posed as whether what human beings can insist on from one another arises out of the intrinsic nature of man or out of an exercise of will (or power, in the Nietzschean sense).
Contractarians believe in the latter, that rights arise out of the agreement between citizens, and between citizens and the state. Rights are brought into being by a social contract, a particular act of will. The moral and philosophical disadvantage of this view is that it does not do justice to human nature; the only aspect of human nature it can recognize as essential is the will. Those outside the social contract are not recognized as having certain things they can justifiably insist on, such as a recognition of their dignity as human beings. This view leads straightforwardly to the brutalities of colonialism, because social contract theory can provide no ground upon which outsiders can insist on even the most basic human rights. A society might choose to treat others well, or it might choose to treat them very poorly; but with the implicit rejection of essentialism there's no compelling reason to do either other than an arbitrary choice.
If rights are grounded in a contract such as the Magna Carta, it is quite reasonable to view those who are not a part of the contract as "naked lives" (as Hannah Arendt said), who cannot insist that their innate human dignity be recognized.
When this is fully realized in the law, we get someone like Richard Posner (a federal court of appeals judge, and far and away the most cited legal thinker in American history) who said in the Harvard Law Review that the Holocaust was not intrinsically immoral.
I am alive to the danger of a contractarian view of rights. But I am equally conscious of the danger of simply making up "rights" and asserting a claim with them. Rights to be real do need some kind of backing. In a democracy the legitimate institution to back a claim of right is the state.
Even in your trespassing example, the difference between my insisting that you get off my land and my insisting that you get out of my neighborhood is that the state will back me in the first instance and not in the second.
I would think the difference between insisting that one get off your property and insisting that one leave your neighborhood is that you can justifiably insist on the former but not the latter. The state can either recognize that right and act accordingly or not.
If wife beating were legalized as a constitutionally protected private activity, this would not change whether a woman can justifiably insist on her bodily integrity, it would whether the government recognizes the truth of her claim. The government may not back her up, but it would not be acting in accordance with the moral reality of the situation.
Of course, some rights arise out of a contractual relationship, but I cannot see how habeus corpus would be one of these rights. Habeus corpus secures the right to not be indefinitely imprisoned without some reckoning with justice. If human beings cannot justifiably insist on not being deprived of their bodily liberty and psychological health on the basis of their human nature, it's hard to see what nature rights human beings could possibly have.
The fact that a government does not enforce such a right does not make it unreal. The question of the existence of rights is not primarily whether a government enforces a particular right, but whether a government should enforce a particular right. Contractarian theory is useless on this score, except as a mechanism for realizing rights that are already there.
"I would think the difference between insisting that one get off your property and insisting that one leave your neighborhood is that you can justifiably insist on the former but not the latter."
Doesn't this beg the question of what foundation justification rests on, if not the law itself? Habeas corpus is more clearly a right against the state than, say, no trespassing. It only makes sense if we are talking about imprisonment by the state - otherwise, imprisonment is prohibited by kidnapping laws.
How does Mrs.G. feel or think about terrorist captured abroad and brought here? Should they enjoy rights afforded to American citizens?
I think everyone under American jurisdiction deserves habeas corpus. We can argue about giving foreigners some other citizen rights, but that one is bedrock.
We are the good guys. We don't torture, and we don't imprison indefinitely without charge. This policy pays many more good dividends than it costs us in exotic cases.
"Doesn't this beg the question of what foundation justification rests on, if not the law itself?"
I think it gets to the important question. If what makes my insistence justifiable is simply that I have the state behind me, then what is justifiable is determine by who has power. If my insistence is justifiable because moral claims are true, then the role of the state is either to recognize my insistence as justifiable, or to fail to do so.
I don't see how there can be any middle ground between the two. There are moral truths independent of acts of will, or there aren't.
The government might be necessary in order to provide a foundation for moral rights to be effective, but if moral truth exists in the nature of things, then state power can't ground moral rights as such.
To put it more concretely, we might ask the question: during the Nuremberg trials, were the acts of the Holocaust wrong because those with power declared it to be so, or was the Holocaust wrong because it was an assault on the intrinsic moral value of human beings? If moral rights are fundamentally grounded by the state, we'd have to say the former; if moral rights are truths belonging to the nature of things, we'd have to say the latter. I don't see a third option.
"The intrinsic moral value of human beings" means different things in different cultures.
I don't know if that argument really settles anything. It's kind of like saying " Let's just all use common sense".
"'The intrinsic moral value of human beings' means different things in different cultures."
The fact that cultures understand the moral value of human beings differently does not necessarily entail that the moral value of human beings has no objective meaning any more than saying the objective the laws of physics would be disproved by showing that cultures understand the laws of physics differently. In both cases the proper way to get at the truth is not to survey different cultural understandings and then summarily accept a form of naive relativism; rather, you ought to approach the problem itself by the exercise of reason.
"...problem itself by the exercise of reason."
Who referees this exercise? You? God? I don't think things are as cut and dry as your argument implies.
I don't know what refereeing could possibly mean in this context other than judge as true or false. We judge things as true or false based on how compelling the arguments are, and we do this all the time. If you reject that possibility, you can't even argue for your own position.
"We judge things as true or false based on how compelling the arguments are, and we do this all the time."
Thomas, that is my point. Simply because you can convince someone doesnt mean you are correct. You seem to have no standard except the power of argument.
In order to debate, you have to presume that reason has the potency to get at the truth. If you don't impliedly accept that, then I have no reason whatsoever to be accept your argument.
In other words, it is your position that entails there is no standard other than the power of argument.
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