Common Law v. Constitutional Rights

Constitutional expectations
Washington Times, Feb. 7, 2007, at A16.

Nat Hentoff's critique of Alberto Gonzales' comments before the Senate Judiciary Committee seems to have missed the point ("Wrong on habeas corpus," Op-Ed, Monday). Mr. Hentoff criticizes the attorney general's statement that "There is no express grant of habeas [corpus] in the Constitution" by giving us a history lesson on how this right has always existed; i.e., it is a common-law right, not a constitutional one (which is exactly what Mr. Gonzales appears to have been arguing). If it is not a constitutional right, it can be taken away subject only to any limitations in the Constitution, such as Article I's mandate that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

In recent decades, with constitutional rights emanating from penumbras and elsewhere, we seem to have forgotten what an "express [constitutional] grant" looks like