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July 04, 2008

July 4, 2008

July 4 is usually fun - picnic, fireworks, a day off. But it is also a time to reflect on the founding of the country - our independence from England, and, as I've written about before, some of the values that served as the foundation for the new country.

Today's lesson comes courtesy of  Boumrdiene v Bush, the recent Supreme Court case involving a detainee in Guantanamo suing the President for holding him without due process. The Court sides with the detainee and provides a nice discussion about habeas corpus, aka The Great Writ, which is the mechanism used to challenge any unjust imprisonment by the government by anybody.

From the majority opinion (slightly edited for brevity). The Suspension Clause is reference to the part of the Constitution that reads, "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."

We begin with a brief account of the history and origins of the writ. Protection for the privilege of habeas corpus was one of the few safeguards of liberty specified in a Constitution that, at the outset, had no Bill of Rights. In the system conceived by the Framers the writ had a centrality that must inform proper interpretation of the Suspension Clause. 

    The Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom. Experience taught, however, that the common-law writ all too often had been insufficient to guard against the abuse of monarchial power. That history counseled the necessity for specific language in the Constitution to secure the writ and ensure its place in our legal system.

    Magna Carta decreed that no man would be imprisoned contrary to the law of the land. (“No free man shall be taken or imprisoned or dispossessed, or outlawed, or banished, or in any way destroyed, nor will we go upon him, nor send upon him, except by the legal judgment of his peers or by the law of the land”). Important as the principle was, the Barons at Runnymede prescribed no specific legal process to enforce it. Holdsworth tells us, however, that gradually the writ of habeas corpus became the means by which the promise of Magna Carta was fulfilled.

detroit fireworks 

    The development was painstaking, even by the centuries-long measures of English constitutional history. The writ was known and used in some form at least as early as the reign of Edward I. Yet at the outset it was used to protect not the rights of citizens but those of the King and his courts. The early courts were considered agents of the Crown, designed to assist the King in the exercise of his power. Thus the writ, while it would become part of the foundation of liberty for the King’s subjects, was in its earliest use a mechanism for securing compliance with the King’s laws. Over time it became clear that by issuing the writ of habeas corpus common-law courts sought to enforce the King’s prerogative to inquire into the authority of a jailer to hold a prisoner.

    Even so, from an early date it was understood that the King, too, was subject to the law. As the writers said of Magna Carta, “it means this, that the king is and shall be below the law.” [see also 2 Bracton On the Laws and Customs of England 33 (S. Thorne transl. 1968) (“The king must not be under man but under God and under the law, because law makes the king”]. And, by the 1600’s, the writ was deemed less an instrument of the King’s power and more a restraint upon it.

    Still, the writ proved to be an imperfect check [on illegal imprisonment by public officials]. Even when the importance of the writ was well understood in England, habeas relief often was denied by the courts or suspended by Parliament. Denial or suspension occurred in times of political unrest, to the anguish of the imprisoned and the outrage of those in sympathy with them.

    A notable example from this period was Darnel’s Case. The events giving rise to the case began when, in a display of the Stuart penchant for authoritarian excess, Charles I demanded that Darnel and at least four others lend him money. Upon their refusal, they were imprisoned. The prisoners sought a writ of habeas corpus; and the King filed a return in the form of a warrant signed by the Attorney General. The court held this was a sufficient answer and justified the subjects’ continued imprisonment. 

    There was an immediate outcry of protest. The House of Commons promptly passed the Petition of Right, which condemned executive “imprison[ment] without any cause” shown, and declared that “no freeman in any such manner as is before mencioned [shall] be imprisoned or deteined.” Yet a full legislative response was long delayed. The King soon began to abuse his authority again, and Parliament was dissolved. When Parliament reconvened in 1640, it sought to secure access to the writ by statute. The Act of 1640 expressly authorized use of the writ to test the legality of commitment by command or warrant of the King or the Privy Council. Civil strife and the Interregnum soon followed, and not until 1679 did Parliament try once more to secure the writ, this time through the Habeas Corpus Act of 1679. The Act, which later would be described by Blackstone as the “stable bulwark of our liberties,” established procedures for issuing the writ; and it was the model upon which the habeas statutes of the 13 American Colonies were based.

    This history was known to the Framers. It no doubt confirmed their view that pendular swings to and away from individual liberty were endemic to undivided, uncontrolled power. The Framers’ inherent distrust of governmental power was the driving force behind the constitutional plan that allocated powers among three independent branches. This design serves not only to make Government accountable but also to secure individual liberty. Because the Constitution’s separation-of-powers structure, like the substantive guarantees of the Fifth and Fourteenth Amendments, protects persons as well as citizens, foreign nationals who have the privilege of litigating in our courts can seek to enforce separation-of-powers principles.

    That the Framers considered the writ a vital instrument for the protection of individual liberty is evident from the care taken to specify the limited grounds for its suspension: “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.” Art. I, §9, cl. 2. The word “privilege” was used, perhaps, to avoid mentioning some rights to the exclusion of others. (Indeed, the only mention of the term “right” in the Constitution, as ratified, is in its clause giving Congress the power to protect the rights of authors and inventors.)

    Surviving accounts of the ratification debates provide additional evidence that the Framers deemed the writ to be an essential mechanism in the separation-of-powers scheme. In a critical exchange with Patrick Henry at the Virginia ratifying convention Edmund Randolph referred to the Suspension Clause as an “exception” to the “power given to Congress to regulate courts.” A resolution passed by the New York ratifying convention made clear its understanding that the Clause not only protects against arbitrary suspensions of the writ but also guarantees an affirmative right to judicial inquiry into the causes of detention. See Resolution of the New York Ratifying Convention (July 26, 1788), in 1 Elliot’s Debates 328 (noting the convention’s understanding “[t]hat every person restrained of his liberty is entitled to an inquiry into the lawfulness of such restraint, and to a removal thereof if unlawful; and that such inquiry or removal ought not to be denied or delayed, except when, on account of public danger, the Congress shall suspend the privilege of the writ of habeas corpus”). Alexander Hamilton likewise explained that by providing the detainee a judicial forum to challenge detention, the writ preserves limited government. As he explained in The Federalist No. 84:

“[T]he practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone … are well worthy of recital: ‘To bereave a man of life … or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.’ And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls ‘the bulwark of the British Constitution.’ ”

    Post-1789 habeas developments in England, though not bearing upon the Framers’ intent, do verify their foresight. Those later events would underscore the need for structural barriers against arbitrary suspensions of the writ. Just as the writ had been vulnerable to executive and parliamentary encroachment on both sides of the Atlantic before the American Revolution, despite the Habeas Corpus Act of 1679, the writ was suspended with frequency in England during times of political unrest after 1789. Parliament suspended the writ for much of the period from 1792 to 1801, resulting in rampant arbitrary imprisonment. Even as late as World War I, at least one prominent English jurist complained that the Defence of the Realm Act, 1914, effectively had suspended the privilege of habeas corpus for any person suspected of “communicating with the enemy.”

    In our own system the Suspension Clause is designed to protect against these cyclical abuses. The Clause protects the rights of the detained by a means consistent with the essential design of the Constitution. It ensures that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the “delicate balance of governance” that is itself the surest safeguard of liberty. The Clause protects the rights of the detained by affirming the duty and authority of the Judiciary to call the jailer to account. (See Preiser v. Rodriguez“[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody”). The separation-of-powers doctrine, and the history that influenced its design, therefore must inform the reach and purpose of the Suspension Clause.

As I noted in the inaugural post of this blog on another July 4:many may like the rhetoric, but feel it's idealistic in a time of terrorist threats. President Bush, among many others, has made this case: wanting to curtail a range of liberties and expand presidential power in the name of protecting freedom. But Justice Douglas, writing in his Almanac of Liberty, reminds us:

Short cuts are always tempting when one feels his cause is just. Short cuts have always been justified on the ground that the end being worthy, the means of reaching it are not important. Short cuts, however, are dangerous. If they can be taken against one person or group, they can be taken against another. Our greatest struggle has been to provide procedural safeguards that will protect us against ourselves and make as certain as possible that reason and calm judgment will not be swept away by passion and hysteria. (1954, p 69)

Happy 4th of July...

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