Them’s fighting words

In Chaplinsky v. New Hampshire 315 U.S. 568 (1942) the United States Supreme Court affirmed a conviction under a New Hampshire statute prohibiting the use of offensive or annoying words when addressing another person in public. Chaplinsky had called the local constable a “damned fascist.” These are fighting words, outside the protection of the First Amendment’s protection of free speech, made applicable to the States by the Fourteenth Amendment.

I am calling Generalissimo Alberto Gonzales a damned fascist right now. I’ll get to the why in a minute, but first a little more law lessons.

The 5th Amendment to the Constitution guarantees to Americans something called “due process.” The founders were brilliant in their recognition of the fact that they were creating a republic that would last for years, and that the idea of fundamental fairness would evolve and mature, as indeed society has. Thus, they kept some things intentionally vague, confident that wise and good men would flesh out the skeleton they had created. Consider for example such phrases as “cruel and unusual punishment.”

The founders were learned in English Common Law, which serves as the basis of American law. Since the mid-12th century, anyone imprisoned has had the right to petition the court and obtain a writ, commanding the jailer to bring the prisoner to court and explain the reasons for the imprisonment. By 1305, the writ was known as Habeas Corpus, and Blackstone recorded its use.

In Harris v. Nelson, 394 U.S. 286, 290-91 (1969) the Supreme Court recognized the fact that “[t]he writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.”

Without the Great Writ, as it is known, the other freedoms are meaningless. You can have free speech, or freedom of religion, or the right to assemble and petition your government; you can have your guarantees of freedom from unreasonable searches and seizures, but it all doesn’t mean a damned thing if you have no recourse when the government snatches you up and holds you indefinitely for exercising those rights.

When the federal government deprives you of life, liberty or property, the Fifth Amendment guarantees that a certain amount of procedural safeguards are due to you. That’s what the Constitution calls “due process.” After the Civil War the Constitution was amended and the 14th Amendment imposed the requirement of due process upon the States and their political subdivisions. And for the last 700 years at least, the concept of due process has included the Great Writ of Habeas Corpus.

Do you want to know about the Original Intent of the Framers? Here’s a clue: Article I, Section 9, of the Constitution states that “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.”

All of which is background to why I am calling Generalissimo Alberto Gonzales a fascist. In today’s Baltimore Chronicle and Sentinel, I read:

Alberto Gonzales questioned whether the U.S. Constitution grants habeas corpus rights of a fair trial to every American.

Responding to questions from Sen. Arlen Specter at a Senate Judiciary Committee hearing on Jan. 18, Gonzales argued that the Constitution doesn’t explicitly bestow habeas corpus rights; it merely says when the so-called Great Writ can be suspended. “There is no expressed grant of habeas in the Constitution; there’s a prohibition against taking it away,” Gonzales said.

Gonzales’s remark left Specter, the committee’s ranking Republican, stammering. “Wait a minute,” Specter interjected. “The Constitution says you can’t take it away except in case of rebellion or invasion. Doesn’t that mean you have the right of habeas corpus unless there’s a rebellion or invasion?”

Sure, calling Generalissimo Gonzales a damned fascist is fighting words. It is a call to action: we must oppose these tyrants, while there is still time.

“… and tell ’em Big Mitch sent ya!”