We seem to have reached a meaty bit of the Constitution. After the long list of powers of Congress, there was the Necessary and Proper Clause. This was followed by the Constitutional right of states to import slaves for 20 years following the adoption of the Constitution. Today we’re talking about the Suspension Clause, which suspends Habeus Corpus. Who says politics is boring?

Article 1 §9.2

Here’s what the clause says:

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.

I think we need to start with some definitions.

Habeus Corpus: Latin for “you have the body” or “to produce the body”

Writ of Habeus Corpus: A writ (aka court order) that commands an individual or a government official who has restrained another to produce the prisoner at a designated time and place so that the court can determine the legality of custody and decide whether to order the prisoner’s release.

Habeus corpus is sometimes called “The Great Writ” and there’s a pretty good summary of its history going back to the Magna Charta on the Free Dictionary.

Suspended in Thin Air

The really weird thing is that the Constitution only mentions habeus corpus once, in the Suspension Clause. We think of it as a fundamental right. But the Constitution only defines it in negative terms. A thicket of case law determines its application. So, some defining features. In 1917, Gasquet v. Lapeyre determined that only the federal government (not the states) is limited by the clause. The clause is also vague about who gets to do the suspending. President Lincoln suspended the privilege in the Civil War. He got so much blowback that he went back and got congressional authorization.

Cases of Rebellion or Invasion

Nowadays the technicalities of the clause get less attention than possible causes of suspension. When anyone with brown skin or a prayer rug counts as a threat to public safety, habeus corpus is at risk. Now it seems to me that in cases of rebellion or invasion there would be sufficient legal grounds for arrest. No unconstitutional arrests, no need for habeus corpus, no need to restrict it. Apparently, my opinion is not the dominant one.

Both the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) have placed restrictions on the use of habeus corpus to question the legality of detention. Because immigration is totally the same the same thing as invasion. eye roll

Habeus Corpus Today

According to Cornell’s Legal Information Institute:

Today, habeas corpus is mainly used as a post-conviction remedy for state or federal prisoners who challenge the legality of the application of federal laws that were used in the judicial proceedings that resulted in their detention.…The writ of habeas corpus primarily acts as a writ of inquiry, issued to test the reasons or grounds for restraint and detention. The writ thus stands as a safeguard against imprisonment of those held in violation of the law, by ordering the responsible enforcement authorities to provide valid reasons for the detention. Thus, the writ is designed to obtain immediate relief from unlawful impeachment, by ordering immediate release unless with sufficient legal reasons and grounds.

As a fundamental instrument for safeguarding individual’s freedom against arbitrary and lawless state action, the writ of habeas corpus serves as a procedural device, by which executive, judicial, or other governmental restraints on personal liberty are subjected to judicial scrutiny.

Yeah. So, not a thing you want to suspend lightly.