Con Law 101: To Whom is Due Process Due?

In response to my post yesterday about the U.S. Supreme Court’s welcome decision re-establishing the fundamental constitutional principle of habeas corpus against the Bush administration’s extraordinary challenges, some guy named Claude chimed-in to assert that the U.S. Constitution only applies to American citizens.

Ordinarily, I respond to readers’ comments as further comments in the thread to which they were originally posted. There are times like this, however, where the comments are so profoundly stupid and so characteristic of disturbing trends in public discourse that they must be addressed in a separate essay.

Where do idiots like Claude get the idea that the U.S. Constitution applies only to American citizens?

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Making Haste and Waste in Iraq

Baby we can do it
Take the time – do it right,
We can do it, Baby –
Do it tonight.
– S.O.S. Band, Take Your Time

I said, I hope you get your constitution written on time, and he agreed… He understands the need for of a timely write of the constitution.
– George W. Bush, On his conversation with Iraqi Prime Minister Ayad Allawi, 28 April 2005

It is depressing to watch the US government pressure the Iraqi Transitional National Assembly to complete the drafting of its country’s constitution. As always, the Bush administration places higher priority on partisan politics at home than the successful democratization and governance of Iraq. If constitution drafting can be checked off the to-do list, then Republicans standing for re-election in 2006 can point to a tangible accomplishment of the new Iraqi government, and try to strike a hopeful note about the abysmal situation they and their president have created.

But will a constitution created in haste really signal a positive achievement? In all likelihood, it will simply codify, in the nation’s supreme legal document, the sectarian divisions that already threaten to rip the country apart. The Sunis remain largely estranged from the process. The kind of negotiation and compromise necessary to build sufficient cohesion to avoid civil war will take time.

But now the first arbitrary deadline has been passed and the Bush administration wants the constitution done yesterday!

The drafting of a constitution is the single most important political act in the governance of a country. If America is, as our politicians like to tell us, the greatest nation on earth – and, indeed, if that phrase has any discernable meaning beyond its hollow, prideful jingoism – it is entirely down to the fact that it has an absolutely beautiful constitutional system. Sure, the US Constitution contains the quirks borne of compromise and historical context. Sure, Madison and others agreed, even at the time, that it was an imperfect document. Sure, the Constitution is more principled and noble in conception than it is in practice, given the careless disregard our politicians sometimes have for it. But no other country in the world has so ably defined the mechanisms of self-governance, finding the delicate balance between effective administration of the public welfare and curtailing the awesome power of the state over the rights of the individual.

The American experience itself shows that these things take time. The Philadelphia Constitutional Convention of 1787 commenced on 25 May. It was not until 29 September – more than four months later – that the Constitution was approved by Congress and sent to the states for ratification. This is more than a month longer than the Bush administration mandated for the drafting of Iraq’s Constitution. And let’s not forget that the work of the Constitutional Convention was preceded by the Annapolis Conference in 1786 and by weeks of crucial advance work by James Madison and the delegates of Virginia; or that the Bill of Rights, the crowning achievement of American constitutionalism, wasn’t ratified until 1791. The Iraqis were starting from scratch on 16 May, and were asked to be done by 15 August.

You may also have noticed that the Iraqi’s are working under somewhat more difficult circumstances than the American delegates to the Constitutional Convention in Philadelphia. America was enjoying peace and prosperity unheard of in a newly-minted, formerly colonial country. The delegates to the convention were all established legislators and included some of the most brilliant political minds of their day – or of any day, for that matter. The issues dividing the delegates were well-drawn, with the country having had the benefit of nearly a decade of experience with democratic self-governance under the Articles of Confederation. Iraq, on the other hand, is a shambles. It’s all the constitutional delegates can do to get themselves to the meetings alive!

It is patently unrealistic to expect an inexperienced, cobbled-together, sectarian, shell-shocked group of would-be politicians to do in three months what James Madison, Alexander Hamilton, Roger Sherman, and their colleagues could not do in four.

If only President Bush weren’t on another protracted vacation, he might be able to lend them a hand.

These Colors Don’t Burn

It has been threatened ever since the Republican party took control of all three branches of government, but the full-frontal assault on the Bill of Rights has finally begun in earnest. I’m not talking about the legislative embarrassment called the U.S. Patriot Act, pushed by the Bush (be-afraid-be-very-afraid) administration and passed by legislators who would have read it, really, had they the time. I’m talking about a full-on constitutional amendment to abolish free-speech rights granted by the First Amendment, as passed by the House of Representatives on Wednesday. It looks as though, before long, the “physical desecration” of the Amrican flag will be a criminal offense.