A New Understanding
Outpost of Freedom
June 19, 2012
The Constitution provided for a separation of powers both within the federal government, and, between the federal government and the state governments (Republican Form, Art I, Sec IV, clause 4, Const.). There were limitations of, and grants of, authority given to the federal government. And, by the Tenth Amendment, those powers not granted were retained by the states or the people.
There is also a rather obscure provision that provided the means to protect the states and the people from encroachment by federal authority. When I say “obscure”, I do so because I am at a loss for the proper word. After all, nearly everybody in the country knows that “The Privilege of the Writ Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it” (Art. I, Sec. 9. Clause 2, Const.). Most people also understand that Habeas Corpus is also known as the “Sacred Writ”, however, I would suggest that only a small handful really understand exactly what Habeas Corpus ad subjiciendum, really is. After all, the last time the United States Supreme Court heard a case on Habeas Corpus ad subjiciendum was in 1876 (EX PARTE PARKS, 93 U.S. 18), yes, 136 years ago — long before any practicing attorney or judge ventured into law school to learn the “law of the land”. Given the number of generations between that last occurrence, is it any wonder that the concept, and the understanding of the significance, of Habeas Corpus has been lost?
Just a few historical quotations regarding the Sacred Writ:
“The sovereignty to be created was to be limited in its powers of legislation, and if it passed a law not authorized by its enumerated powers, it was not to be regarded as the supreme law of the land, nor were the State judges bound to carry it into execution.”. [Abelman v. Booth, 62 U.S. 506 (1858), at 519]
“This judicial power was justly regarded as indispensable, not merely to maintain the supremacy of the laws of the United States, but also to guard the States from any encroachment upon their reserved rights by the General Government. And as the Constitution is the fundamental and supreme law, if it appears that an act of Congress is not pursuant to and within the limits of the power assigned to the Federal Government, it is the duty of the courts of the United States to declare it unconstitutional and void. The grant of judicial power is not confined to the administration of laws passed in pursuance to the provisions of the Constitution, nor confined to the interpretation of such laws; but, by the very terms of the grant, the Constitution is under their view when any act of Congress is brought before them, and it is their duty to declare the law void, and refuse to execute it, if it is not pursuant to the legislative powers conferred upon Congress” [Abelman v. Booth, 62 U.S. 506 (1858), at 520,521]
“Rights and immunities created by or dependant upon the Constitution of the United States can be protected by Congress. The form and the manner of the protection may be such as Congress, in the legitimate exercise of its legislative discretion, shall provide. These may be varied to meet the necessities of the particular right to be protected”. [U S v. REESE, 92 U.S. 214 (1875), at 215, 216]
“A remedy the more necessary, because the oppression does not always arise from the ill-nature, but sometimes from the mere inattention of government“. [William Blackstone, Commentaries (1768)]
“Reasons will be given hereafter for considering many of the restrictions, contained in the amendments to the Constitution, as extending to the states as well as to the United States, but the nature of the writ of habeas corpus seems peculiarly to call for this construction. It is the great remedy of the citizen or subject against arbitrary or illegal imprisonment; it is the mode by which the judicial power speedily and effectually protects the personal liberty of every individual, and repels the injustice of unconstitutional laws or despotic governors“. [“A View of the Constitution of the United States”, William Rawles (1829)]
“The national code in which the writ of habeas corpus was originally found, is not expressly or directly incorporated into the Constitution.
If this provision had been omitted, the existing powers under the state governments, none of whom are without it, might be questioned, and a person imprisoned on a mandate of the president or other officer, under colour of lawful authority derived from the United States, might be denied relief. But the judicial authority, whether vested in a state judge, or a judge of the United States, is an integral and identified capacity; and if congress never made any provision for issuing writs of habeas corpus, either the state judges must issue them, or the individual be without redress.” [“A View of the Constitution of the United States”, William Rawles (1829)]
“It is at any rate certain, that congress, which has authorized the courts and judges of the United States to issue writs of habeas corpus in cases within their jurisdiction, can alone suspend their power, and that no state can prevent those courts and judges from exercising their regular functions, which are, however, confined to cases of imprisonment professed to be under the authority of the United States. But the state courts and judges possess the right of determining on the legality of imprisonment under either authority. [“A View of the Constitution of the United States”, William Rawles (1829)]
“§ 1333. In order to understand the meaning of the terms here used, it will be necessary to have recourse to the common law; for in no other way can we arrive at the true definition of the writ of habeas corpus. At the common law there are various writs, called writs of habeas corpus. But the particular one here spoken of is that great and celebrated writ, used in all cases of illegal confinement, known by the name of the writ of habeas corpus ad subjiciendum,” [“Commentaries on the Constitution”, Joseph Story (1833)]
Though we have seen that the state legislatures have failed at nullification of unlawful enactments of Congress, perhaps, however, we can see that there is a remedy within the Constitution that, if properly applied, will achieve such end. Unless, of course, the “Sacred Writ has been suspended — without the requisite act of Congress and the Constitutional conditions met.
To understand more about Habeas Corpus, and, the apparent suspension (not enacted suspension, as required), go to Habeas Corpus 2012
For the current status of the Habeas Corpus before the Supreme Court, see Habeas Corpus Suspended