The American Civil Liberties Union is right when it says that last week’s Senate Judiciary Committee vote in favor of the restoration of habeas corpus protections “signals to the White House and the Republican minority in Congress that this is a real issue.”
But that does not mean that renewal of the most basic of our Constitutional guarantees is just around the corner.
The frustrating fight to restore habeas corpus has reached an important milestone. Democrats appear to have signed on for the struggle. But Republicans, for the most part, remain wrong or silent.
That creates a calculus that must be understood by serious constitutionalists. This fight is about more than gaining partisan advantage or “sending a message.” A fundamental of the republic is at stake. Thus, it is essential to recognize that, even though Democrats control the Congress, GOP control of the White House means that this constitutional restoration project must now focus attention and energy on those congressional Republicans who call themselves “strict constructionists.” Only if the Senate votes overwhelmingly for the restoration of habeas corpus will there be any chance of forcing the hand of a president who has not distinguished himself as an enthusiast for the Bill of Rights.
Is it reasonable to think that grass-roots activists might succeed in forcing a significant number of Republicans to do the right thing?
Absolutely, especially when we recognize the progress that has been made thus far. And even more so when we consider that this progress is a direct reflection of the fact that the passion for restoring habeas corpus has always been greater at the grass roots than in Washington. People were shocked when a Republican-controlled Congress moved to undermine an essential check in the American Constitution — a protection the U.S. Supreme Court has described as “the fundamental instrument for safeguarding individual freedom against lawless state action.”
After Democrats won control of the U.S. House and Senate last November, the popular Internet site www.democrats.com asked people to identify the first action the new Congress should take. The online survey listed 140 possible changes. The top response? “Restore habeas corpus.”
Of course, it was not just Democrats who were worried about the kick in the teeth that the Constitution had taken. Earlier this year, the conservatives and libertarians associated with the Liberty Coalition and the right-wing legal scholars at the Rutherford Institute signed onto a letter outlining 10 steps the new Congress could take to restore U.S. moral authority in the world. The first step was: Restore habeas corpus.