Not that I'm entirely certain of the usage here, but given that 'Smasher isn't around:
Wooo, hook 'em Democrats!
Now this is a good way to start your Sunday.
I heard that interview; it was wonderful. I'm so glad he's following through.
See, this is exactly the kind of thing that makes the terrorists so happy the Democrats won
But.... what if a Democrat with a one-syllable first name does something cheer-worthy? What will we do then!
Apart from that: thank god!
So if one runs a google news search on Leahy, and then clicks the "all 80 news articles link," you get a UPI story discussing the legislation Leahy's writing, a Newsbusters post about the UPI story which primarily demonstrates that it's own author either doesn't know or is lying about what habeas means, and an AP story about the MCA which doesn't mention Patrick Leahy at all, but it pretty interesting. Two key paragraphs from the AP story, which it would be nice for more people (not people here, who know this, but people out in the wide world) to familiarize themselves with,
"Signed last month by President Bush, the law says no court can hear a petition of habeas corpus - a right enshrined in the U.S. Constitution - from any non-U.S. citizen determined to be an enemy combatant or held under suspicion of being one.
Habeas corpus, which has been around since the Magna Carta of 1215, obligates officials to explain in court why those arrested are being held."
6: I'd been worrying about that. Or, goodness knows, three-syllable. But there's lots that can be done with nicknames.
The signers of the Magna Carta didn't have to deal with major threats such as terrorism. They just had to deal with relatively minor threats such as plagues that killed a third of Europe's population, genuine threats of being taken over by the Islamic caliphate, continual war, etc., etc.
8: Henceforth we will only elect officials with bisyllabic names.
This will be spun as soft on terror, so I hope they have some angry faces, some quick talking points, and 'party of man-raping dogs' prepared in response.
and 'party of man-raping dogs'
I subscribe to the disquotational theory of politics, and thus advocate retaliating with actual man-raping dogs.
That would be cool, but hard on the budget.
Habeas corpus, which has been around since the Magna Carta of 1215
I have seen this claim a lot lately. Where does the Magna Carta refer to the writ of habeas corpus? The only attempts I have seen to cite the text of the Magna Carta refer to the law of the land provision, but that is the forerunner of our Due Process Clause, not anything having to do with habeas. Indeed, it is my understanding that habeas mostly was used later in reaction to the Crown's failure to obey its law of the land obligations.
The Great Writ has a long and venerable history (although not as extensive as some seem to believe), but where did the Magna Carta reference come from?
From your link, it's my understanding that this point:
+ (39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.
has been conventionally understood to refer to habeas corpus, which, as you rightly suggest, pre-existed Magna Carta.
Looking back at your comment, you explicitly make the claim that this is not the case -- I'm not clear what your basis for that claim is.
I'm not clear what your basis for that claim is.
Actually, I am not sure what the basis is for the claim that the law of the land clause refers to the writ of habeas corpus is the conventional wisdom.
I think it is accepted by legal scholars that the law of the land clause is the forerunner of the Due Process Clause; indeed many of the early state constitutions used "law of the land" instead of due process, in provisions with the same effect.
Keep it up, Ideal. Make her fight a two front war!
If you're asking about why I believe it to be the conventional wisdom, try Google. I'm not arguing for Google hits as scholarship, but the number of relevant hits you get for "magna carta" "law of the land" habeas indicates that a lot of people think they are connected.
I think it is accepted by legal scholars that the law of the land clause is the forerunner of the Due Process Clause
What this has to do with claiming that it is unrelated to habeas is a mystery to me -- the concepts of due process, and that any prisoner has a right for a court to decide whether their imprisonment is legal, are tightly connected. Habeas was a part of the common law in 1215. The Magna Carta, in the law of the land provision, made it clear that the king did not have the power to imprison, etc., any person except according to law, which law at the time included the Great Writ.
Perhaps it's the 'lawful judgment of equals' clause?
And in any case, it's in the Constitution, right? The Anglo-American tradition is nice and all, but if it's not strictly the case that something exactly like our modern form of habeas is delineated, so what. Big important signed document with American signatures. Trumps English kings. Roar.
Yeah, my understanding of Ideal's comment was that it wasn't so much addressed toward any particular political outcome as sniping at what he perceives as ignorant or erroneous left-wing rhetoric on this point. Is that right, Ideal?
The Magna Carta, in the law of the land provision, made it clear that the king did not have the power to imprison, etc., any person except according to law, which law at the time included the Great Writ.
I think this has the analysis backwards. The writ of habeas corpus is not substantive law, and has nothing to do with whether someone has been imprisoned according to the law of land. As I note above, it certainly (in some circumstances and with varying degrees of scope and effectiveness) was used as a remedy where someone was imprisoned not in accordance with the law of the land. It was for a long time a common law writ, I do not think it had real teeth until the 1600's.
My point here is the sort of narrow one often described as trolling here, so I will re-lurk. All I'm saying is that the fact that Magna Carta affirmed the right not to be imprisoned except by the law of the land does not necessarily mean that it said anything (and I think it is clear that it does not actually say anything) about the writ of habeas corpus, which had been, and after Magna Carta was, used as one way to enforce the law of the land rights.
The writ of habeas corpus is not substantive law, and has nothing to do with whether someone has been imprisoned according to the law of land.
That's an expansive concept of 'nothing to do with' you've got there, dude. If an authority has the right to imprison you and deny you access to any means of testing the legality of your imprisonment (which is the case in the absence of habeas) it has the power to imprison you in violation of 'the law of the land', whether or not it is given that power by the substantive law.
Are you getting this idea that the Magna Carta is unconnected to habeas from anywhere, or did you come up with it all on your own? I'd be interested in links, if the former.
10: So do we chant "Hen-ry, Hen-ry" or "Wax-man, Wax-man?"
Or we can be Cameron Crazies and go with Hen-ry Wax-man (clap-clap-clapclapclap). I like that one best...
Well, no one seems interested in talking about George Bush's nickname for Perv Musharraf, so I'd just like to mention that LAlly Weymouth is Tina Weymouth's ex-sister-in-law, Alexander Cockburn's ex-gf, George Will's ex-gf, and the sister of Donald Graham who runs the Post. She is reputed to treat the Post's reporting and commentary staff as personal servants of the Graham family, which may account for the quality of the Post's work. Brad deLong will be notified about this.
Waxman has been ready to investigate since about 2001. He must have a file already assembled, because he writes stuff from time to time.
As far as I understand it (which is admittedly not very far): Seventeenth-century English jurists (e.g. Sir Edward Coke) and parliamentarians and various others who wanted to limit the power of the Crown argued (probably erroneously) that habeas corpus derived from Magna Carta, which then became accepted fact. More broadly, they tended to attribute anything they liked, maybe even the rule of law in general, to the Magna Carta.
I have no cites.
During and before the Glorious Revolution (1688 and all that) the anti-Royalists put together all kinds of justifications for cutting off the Papist monster's elegantly-coiffed head. The Magna Charta was part of it, and so were the pre-1066 Anglo-Saxons, and so were science and reason, and so was the Bible. Among them were the Ranters, who were much like Rastafarians except for the herb.
I don't know how much of this crept into law, but I doubt that there ever has been or will be a clear understanding of what the actual foundations were.
The writ of habeas corpus is not substantive law
I don't know how much more "substantive" than the Constitution you want, Idealist.
I doubt that there ever has been or will be a clear understanding of what the actual foundations were.
The glory of the common law tradition!
31: Well, he meant 'substantive' as opposed to 'procedural'. He's perfectly right that habeas is a procedural matter, it's just that without that bit of procedure, all the substantive rights in the world won't help you much.
Alexander Cockburn's ex-gf and George Will's ex-gf
This hardly seems possible. Unless one is entirely content-free.
Weymouth is now a hard-core conservative, but she went through (ta-dum!) a Trotskyist period in her youth. While it seems hardly possible that George Will might ever have had a sexual relationship with anyone, he was willing to put up with a bit of grief in order to get closer to Katherine Graham, Lally's mother (and publisher of the Washington Post). It worked for him.
I don't know enough latin to be sure, but it looks like Blackstone attributed to Coke, who relied on the Magna Carta, the principle that any person injured may take his claim to a court of law - that is, seek a writ like a writ of habeas.
http://press-pubs.uchicago.edu/founders/documents/amendV_due_processs8.html
I didn't bring my copy of Coke on the MC on my roadtrip, but the way I think of it is that the writ is the procedural means of enforcing the substantive right enshrined in the MC. I'm not sure whether there were writs of hc prior to Edward I -- not being a scholar of the point -- I am sure that Yoo-ism was positively forsworn at Runnymede.
The amicus briefs recently filed in Al Odah cover the point, I think. I can send them to you Idealist, via LB, if you are interested.
I recall Coke talking in a footnote about a specific case dealing with due process that involved an English nobleman accused of collaborating with foreign, and barbaric, invaders.
I'm reading about the difference between Substantive Law and Procedural Law and I'm having trouble understanding the difference. Might one of the laweryly provide an example of each in-action?
Also: re #2, "Fuck 'em, Bears" is the usage you're looking for.
A reasonable shorthand would be that substantive law governs the behavior of everyone regardless of whether there's any lawsuit or other legal action going on; procedural law only comes into play governing what happens in the courtroom.
The law that prohibits you from shooting your boss is substantive; the law that gives you a right to a speedy trial once you've been arrested for it is procedural.
"one must keep one's pants on in the museum" -- substantive.
"one must keep one's pants on in the courtroom" -- procedural.
Stanley: I'm not lawerly, and hope one of them will quickly point out if I am wrong, but as I understand it structural law covers people and their inter-relationships (and corporations, and the state, etc.) whereas procedural law governs how all this is applied.
In this light, what LB was arguing is that without some sort of guarantees procedurally (to wit, habeus corpus) structural law can be made irrelevant in some cases because there is no mechanism to force the system to address it.
40: Oh, thanks. Do people specialize in one or the other, or is there some other reason for the distinction? It seems maybe trial lawyers would have to know the ins and outs of procedural law, in order to throw lots of blue pieces of subpoena paper around.
41 helps, too, thanks.
42: "structural"? Is this a synonym for "substantive", in lawspeak?
42: bah. no, that is what I get for typing a quick message at the same time as working on a document --- I was reworking a sentence with `structural' in it. The mind is a funny thing.
Litigators, which isn't an exact synonym for trial lawyers, (most litigators push stacks of paper around and spend an awful lot of time doing research. Trial lawyers are the few litigators who specialize in standing on their hind legs in a courtroom) know procedure as well as substantive law. Everyone else mostly sticks with substantive law.
It would strike me that habeus corpus is pretty close to substantive law, since it stands right at the border where a policeman translates substantive law into procedural law, i.e., when he transforms someone walking around doing things into a defendant. It's not purely internal to the legal process, but right at the initiation of the process.
Or, as Schmitt and Agamben would say, the state of exception. (Not really -- I just like to say things like that to make a certain erson named Craig mad).
Er, I guess "john 'craig' erson". Boy did I botch that joke. [/John Kerry]
I've been plagued by ersons throughout my troubled life.
Or we can be Cameron Crazies
Over my dead body.
Yes. Yes I am. And even though it was an exhibition game against a Division II school, UNC scored 140 points in 40 minutes this weekend. We are going to run teams ragged this season. It will be a thing of beauty.
Best day of every year is the day that Roy Williams loses in the NCAA tourney and cries like Clint Eastwood in "Million Dollar Baby"
(note, that predates his Carolina tenure - the coming together of the two neatly allows me to focus all hatred in one spot. Though Bobby Huggins is back to dilute it a wee bit)