Outside the Beltway

CONSTITUTIONS

James Joyner · Monday, November 3, 2003 · 1 comment

Andrew P. Napolitano, a freqent Fox News Channel contributor, is very concerned about the extra-legal steps being taken by our government in the name of fighting terrorism.

Since the Constitution is the sheet anchor of the government’s powers, one would expect that the government would contend that it exists and subsists wherever the government wants to enforce federal law. But the government only wants to enforce part of the Constitution.

Just last year, the government successfully argued to four federal courts that the U.S. Constitution does not apply at American military facilities in Cuba and, thus, no American court has jurisdiction over the acts of the U.S. government and its personnel there. The cases in which this perverse argument was made involved litigation filed by relatives of prisoners confined at Guantanamo Bay who sought to have federal courts order the government to explain and justify the prisoners’ confinement. This right–the ancient right to habeas corpus–is guaranteed in the Constitution (except in time of war when Congress specifically suspends it) to all persons confined against their will by the government.

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Not only can the government not argue both ways, it cannot have it both ways. Either the Constitution, with all its powers to prosecute and with all its due process protections as well, applies fully or it does not apply at all.

The government knows that it cannot escape the Constitution merely by leaving the U.S. mainland because the Supreme Court has told it so. In Ex parte Milligan, the Court declared that: “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.” And, in a consistent series of cases that goes back over 100 years, the Court has ruled that federal courts have jurisdiction over acts of the U.S. military in Guantanamo Bay, Cuba. Does the government really expect Americans to believe that nothing restrains it, and it need not respect our rights, when it leaves U.S. soil? The government’s argument is nonsense. Wherever the government goes–even to the moon–the Constitution goes with it.

It is especially ironic that an administration committed to appointing judges who are constitutional “strict constructionists” is so willing to bend the Constitution to serve its policy preferences here.

(Hat tip: Howard Bashman