As any honest observer can see, a rather sad result arises from applying ‘American exceptionalism’ to the law. If people (insofar as lawyers can be called people) are instilled with thoughts of American greatness throughout their early years, thoughts that are only further confirmed while in law school—where students quickly learn that America is the most just nation on earth—they logically come to believe that the law should treat Americans differently from non-Americans, because Americans and non-Americans are somehow different in some meaningful, even if undefined, way. When such exceptionalism is applied to constitutional questions the consequences can be calamitous. What results is the deprivation of civil liberties, individual, and human rights. What does not result is the denial of constitutional rights. How so, you may ask. Well, a dirty little secret which constitutional scholars and politicians alike do not want us to know is that, in a very real sense ‘constitutional rights’ do not exist today, just as they did not exist in 1789. This is to say that the notion of “constitutional rights,” whenever it entered the American consciousness, is a dreadfully inaccurate and misleading concept.
The Constitution, contrary to popular belief, does not confer rights to the people; instead, it is the people who consciously, through the decisions of elected leaders or otherwise, transfer specific rights to the Government in exchange for greater security. Rather than conferring or bestowing rights, the Constitution merely “enumerates” them. That is, the Constitution is nothing more than a formal pronouncement and affirmation of rights which the people specifically hold dear. Still more importantly, insofar as the people’s transfer of rights gives the Government power, the Constitution diffuses that power by spreading it out amongst three branches, limiting the exercise of governmental power by qualifying it through various articles and a multitude of amendments. The Constitution, through enumeration, does nothing more than reaffirm what preexisting rights people have by ensuring that the Government does not infringe upon those preexisting rights. For example, the First Amendment does not award citizens a “right” of free speech; it, instead, protects an extant right of free speech from Government infringement. Likewise, the Fourteenth Amendment does not award the people a right of equal protection; indeed, it merely solidifies an understanding that the preexisting right of equal protection shall not be denied by the States.
The writ of habeas corpus and its enunciation in Article I, section 9 is no exception to this rule, notwithstanding the fact that the writ is referred to as a “privilege” within constitutional text. Habeas corpus, namely, the right of a person to challenge the legality of his detention, is a right that predates our Constitution, a right which our founders, like the British before them, no doubt viewed as a birthright of all people. Habeas corpus is not just an important right; it is a right which speaks to the very core of humanity itself. It is not a constitutional right, but a natural right. Yet in Boumediene, while the Court rightfully extended access to the writ to foreign nationals held at Guantanamo Bay, it mistakenly did so on a purely constitutional basis. Moreover, the extension of habeas rights to Guantanamo was only possible because the petitioners’ cases were seen as “exceptional” and because the Court considered Guantanamo, for all intents and purposes, to be a territorial extension of the United States. It stands to reason that but for the fact that Guantanamo Bay lies within U.S. territory in theory, if not in fact, Guantanamo detainees would not ever be entitled to challenge their being held incommunicado despite the fact that the right to challenge the legality of one's detention is guaranteed by countless international human rights agreements and is clearly a fundamental human right.
In Boumediene, both the majority and the dissenters were in the wrong. The majority was wrong because it viewed the habeas question as one of constitutional and territorial rights. Similarly, the right wing dissenters were wrongheaded (as they often are) in narrowly understanding habeas corpus as a constitutional right only available extraterritorially to U.S. citizens. Habeas corpus is not a citizen’s right or a territorial right. Nor is it a constitutional right; habeas corpus is, as previously stated, a fundamental human right that is not guaranteed, but is only reiterated by the Suspension Clause. The habeas right is guaranteed by birth, not by constitutional mandate. If the founders in drafting the Constitution had failed to mention the writ of habeas corpus, people would, nevertheless, still be entitled to its protections by virtue of their humanity. Thus, every human being on this planet: terrorist suspect or political prisoner, dissident or revolutionary has a legal right to challenge his detention in court, whether he is confined in Guantanamo Bay, Cuba or Bagram Air Force Base in Afghanistan (contrary to what the Obama administration asserts). If the Court and the legal community begin to view habeas corpus not as a right of constitutional importance but of human importance, the American Government depriving anyone anywhere of such a right is morally as well as legally untenable. The fact that natural or inalienable rights are more difficult to define than enumerated ‘constitutional rights’ does not justify the denial or, worse, complete obliteration of such rights. Rights, even when unstated, still have meaning. Indeed, many rights are simply so obvious as to not need mentioning (e.g., the right to marriage, procreation, and family—all fundamental rights which are encompassed, though not mentioned explicitly, within the Fourteenth Amendment).
The majority’s decision in Boumediene has been lauded by many as a great moment in which the Supreme Court protected the interests of Guantanamo detainees, but it did so without protecting the interests of anyone else. In that regard, the liberal majority failed miserably. In reaffirming that habeas corpus is a fundamental constitutional right, the Court (and many well-meaning constitutional law scholars) denies the existence of habeas corpus as a fundamental human right. Until law schools throughout this country start to acknowledge the existence of “extraconstitutional” fundamental rights (a fact that the Declaration of Independence recognizes through the brilliant language: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights” and in the Ninth Amendment with the great words: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”) our legal discourse will continue to drive our courts, indeed even this country’s highest court, down a misguided path. And all Americans, nay, in truth, all of humanity is worse off because of it.
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