Does John Ashcroft Understand the Constitution?

Learning that the U.S. Supreme Court had upheld the rights of habeas corpus, right to counsel, and due process of law in the Yaser Hamdi, Jose Padilla, and Shafiq Rasul cases, U.S. Attorney General John Ashcroft commented, “The Supreme Court accorded to terrorists, in a variety of cases this week, a number of additional rights.” Ashcroft’s lament raises an important question: Does the attorney general of the United States understand the nature and meaning of the Constitution?

Many Americans honestly believe that the Constitution gives them rights. A few years ago, I was invited to give a speech to a student assembly at a public high school in Virginia. I began the discussion by asking the crowd, “How many of you believe that the First Amendment gives people the right of freedom of speech?” Just about everyone in the room raised his hand.

I announced, “Well, every one of you is wrong. Can anyone tell me why?”

That threw the crowd into a frenzy. “Mr. Hornberger, everyone knows that the First Amendment gives us freedom of speech,” one student stated. “I’ve got the First Amendment in front of me and I can categorically state that you are wrong, Mr. Hornberger,” another one said.

I stood my ground: “The First Amendment does not give anyone freedom of speech. Can anyone tell me why I’m right?”

After much discussion, a young woman finally said, “Yes, Mr. Hornberger, you are right. The First Amendment does not give people freedom of speech. Instead, it prohibits Congress from abridging freedom of speech.”

That distinction is the difference between night and day. Unfortunately, it is one that all too many people fail to appreciate. People’s rights are fundamental and inherent, and they preexist government Thus, the Framers didn’t give people rights in the Constitution but rather prohibited the government from taking such rights away. That’s why the document uses the words “no” or “not” some 46 times.

Although most people understand the need for government to arrest and prosecute violent criminals, throughout the ages government officials have inevitably employed such power to punish the innocent. Thus, civil liberties pertaining to the administration of criminal justice have arisen out of centuries of citizen struggle against the abuse of governmental power. These include such rights as due process of law (which stretches back to Magna Carta in 1217), habeas corpus, right to counsel, freedom from unreasonable searches and seizures, right to confront witnesses, and trial by jury. These rights and safeguards were such vitally important aspects of liberty that our ancestors decided to enumerate them in the Constitution and the Bill of Rights.

Note, however, that as with natural rights such as freedom of speech, freedom of the press, and the right to keep and bear arms, the Constitution does not give people civil liberties but instead guarantees such liberties from government infringement.

Until the Supreme Court’s decisions in the Hamdi, Padilla, and Rasul cases, the U.S. military was claiming and wielding the most ominous power in our lifetime — the power to seize Americans and foreigners alike and incarcerate them in military brigs for the rest of their lives, denying them such rights as habeas corpus, right to counsel, and due process of law. The Pentagon had even claimed that the federal courts lacked the authority to interfere with its refusal to accord suspected terrorists these critically important rights. Even more ominous, the Pentagon was claiming the authority to put suspected terrorists on trial at its base in Guantanamo Bay before a Cuban-style, kangaroo-court military tribunal, subjecting the accused to the death penalty while denying them trial by jury and other due-process guarantees.

In a victory for freedom and the Constitution, the Supreme Court put the quietus to the Pentagon’s unwarranted assumption and exercise of such dangerous powers. By according suspected terrorists the rights of habeas corpus, right to counsel, and due process of law, the Court wasn’t giving “more rights” to terrorists, as John Ashcroft mistakenly thought. It was instead enforcing centuries-old procedural guarantees in the administration of justice that our ancestors had the wisdom and foresight to enumerate in the Constitution.

Mr. Hornberger is founder and president of The Future of Freedom Foundation. Send him email.

Faith and Patriotism

Denver — The theologian Karl Barth once said, "To clasp the hands in prayer is the beginning of an uprising against the disorder of the world."

That saying comes to mind as the election approaches and I hear more lectures about how Roman Catholics must not "impose their beliefs on society" or warnings about the need for "the separation of church and state." These are two of the emptiest slogans in current American politics, intended to discourage serious debate. No one in mainstream American politics wants a theocracy. Nor does anyone doubt the importance of morality in public life. Therefore, we should recognize these slogans for what they are: frequently dishonest and ultimately dangerous sound bites.

Lawmaking inevitably involves some group imposing its beliefs on the rest of us. That's the nature of the democratic process. If we say that we "ought" to do something, we are making a moral judgment. When our legislators turn that judgment into law, somebody's ought becomes a "must" for the whole of society. This is not inherently dangerous; it's how pluralism works.

Democracy depends on people of conviction expressing their views, confidently and without embarrassment. This give-and-take is an American tradition, and religious believers play a vital role in it. We don't serve our country - in fact we weaken it intellectually - if we downplay our principles or fail to speak forcefully out of some misguided sense of good manners.

People who support permissive abortion laws have no qualms about imposing their views on society. Often working against popular opinion, they have tried to block any effort to change permissive abortion laws since the Supreme Court's Roe v. Wade decision in 1973. That's fair. That's their right. But why should the rules of engagement be different for citizens who oppose those laws?

Catholics have an obligation to work for the common good and the dignity of every person. We see abortion as a matter of civil rights and human dignity, not simply as a matter of religious teaching. We are doubly unfaithful - both to our religious convictions and to our democratic responsibilities - if we fail to support the right to life of the unborn child. Our duties to social justice by no means end there. But they do always begin there, because the right to life is foundational.

For Catholics to take a "pro-choice" view toward abortion contradicts our identity and makes us complicit in how the choice plays out. The "choice" in abortion always involves the choice to end the life of an unborn human being. For anyone who sees this fact clearly, neutrality, silence or private disapproval are not options. They are evils almost as grave as abortion itself. If religious believers do not advance their convictions about public morality in public debate, they are demonstrating not tolerance but cowardice.

The civil order has its own sphere of responsibility, and its own proper autonomy, apart from the church or any other religious community. But civil authorities are never exempt from moral engagement and criticism, either from the church or its members. The founders themselves realized this.

The founders sought to prevent the establishment of an official state church. Given America's history of anti-Catholic nativism, Catholics strongly support the Constitution's approach to religious freedom. But the Constitution does not, nor was it ever intended to, prohibit people or communities of faith from playing an active role in public life. Exiling religion from civic debate separates government from morality and citizens from their consciences. That road leads to politics without character, now a national epidemic.

Words are cheap. Actions matter. If we believe in the sanctity of life from conception to natural death, we need to prove that by our actions, including our political choices. Anything less leads to the corruption of our integrity. Patriotism, which is a virtue for people of all faiths, requires that we fight, ethically and nonviolently, for what we believe. Claiming that "we don't want to impose our beliefs on society" is not merely politically convenient; it is morally incoherent and irresponsible.

As James 2:17 reminds us, in a passage quoted in the final presidential debate, "Faith without works is dead." It is a valid point. People should act on what they claim to believe. Otherwise they are violating their own conscience, and lying to themselves and the rest of us.


Charles J. Chaput is the archbishop of Denver.