Suspension and the extrajudicial constitution

Columbia Law Review

Volumn 107, Issue 7, 2007, Pages 1533-1616

  Morrison, Trevor W ^a,b  

^a NEW YORK UNIVERSITY SCHOOL OF LAW   (United States)

^b MIT Sloan School of Management   (United States)

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EID: 37349032822     PISSN: 00101958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (124)

1. See, e.g., Bruce Ackerman, The Emergency Constitution, 113 Yale L.J. 1029, 1041 (2004) (calling Suspension Clause "a rudimentary emergency provision");
2. David Cole, The Priority of Morality: The Emergency Constitution's Blind Spot, 113 Yale L.J. 1753, 1796 (2004) (calling it "the Constitution's only explicit 'emergency' provision");
3. Amanda L. Tyler, Is Suspension a Political Question?, 59 Stan. L. Rev. 333, 334 (2006) (calling it "one of the few express 'emergency' provisions in our Constitution");
4. see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 650 (1952) (Jackson, J., concurring) (calling it the only "express provision for exercise of extraordinary authority because of a crisis").
5. But see Stephen I. Vladeck, Note, Emergency Power and the Militia Acts, 114 Yale L.J. 149, 151-54 (2004) (discussing other constitutional provisions, including the First Militia Clause, art. I, § 8, cl. 15, as important sources of emergency power).
6. U.S. Const, art. I, § 9, cl. 2.
7. The Suspension Clause addresses the suspension of the "Privilege of the Writ of Habeas Corpus," not the writ itself. As the Supreme Court has explained, "The suspension of the privilege of the writ of habeas corpus does not suspend the writ itself. The writ issues as a matter of course; and on the return made to it the court decides whether the party applying is denied the right of proceeding any further with it." Ex parte Milligan, 71 U.S. (4 Wall.) 2, 130-31 (1866). But "suspending the writ" and "suspending habeas" are common shorthands for suspending the privilege of the writ, and I will use them here. For discussion of one short-lived attempt to assign a different meaning to "privilege, " see infra text accompanying notes 194-206.
8. The Suspension Clause does not specify which branch or branches of government have the power to suspend the writ. The dominant view is that this power belongs to Congress. See Trevor W. Morrison, Hamdi's Habeas Puzzle: Suspension as Authorization?, 91 Cornell L. Rev. 411, 428-29 (2006). I assume the correctness of that view here.
9. Literally, "that you have the body to submit to." Black's Law Dictionary 715 (8th ed. 2004); see also Preiser v. Rodriguez, 411 U.S. 475, 484 n.2 (1973) ("[W]hen the words 'habeas corpus' are used alone, they have been considered a generic term understood to refer to the common law writ of habeas corpus ad subjiciendum, which was the form termed the 'great writ.'").
10. Ex parte Watkins, 28 U.S. (3 Pet.) 193, 202 (1830).
11. INS v. St. Cyr, 533 U.S. 289, 301 (2001) ("At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest.").
12. In the words of Joseph Story, habeas is "justly esteemed the great bulwark of personal liberty." 3 Joseph Story, Commentaries on the Constitution of the United States, at 483 (Carolina Academic Press 1987) (1833).
13. By "constitutional predicates," I mean the requirements of a "Rebellion or Invasion" during which "the public Safety may require" suspension. U.S. Const, art. I, § 9, cl. 2. Congress's determination that these predicates are met could raise the question whether that determination is justiciable. The Supreme Court has never conclusively answered that question, but the conventional view is that suspension-related decisions are nonjusticiable. See Morrison, supra note 4, at 429-30 (citing adherents to that view). A recent article by Amanda Tyler quite forcefully challenges the conventional wisdom. See Tyler, supra note 1, at 336 (arguing that treating suspension as nonjusticiable "is at odds with the Great Writ's heritage and place in our constitutional structure and . . . would have troubling ramifications for the separation of powers and the institution of judicial review"). I take no position on the issue here. But even if satisfaction of the Suspension Clause's predicates is itself nonjusticiable, courts would still retain the power to determine whether the writ had in fact been suspended, and whether any such suspension covered the particular detention in question (including whether the detention complied with any substantive, geographic, or other limitations that Congress had imposed on the suspension). Cf. Morrison, supra note 4, at 431 (explaining that "in cases of partial suspension, the Court's first task is to determine whether the instant detention falls within the scope of the suspension").
14. A version of this hypothetical, without the suspension, is found in Eugene Kontorovich, Liability Rules for Constitutional Rights: The Case of Mass Detentions, 56 Stan. L. Rev. 755, 757 (2004). I have used it before. See Morrison, supra note 4, at 432, 438.
15. The standard cite is to Korematsu v. United States, which announced that government actions limiting the rights of a particular racial group are "immediately suspect." 323 U.S. 214, 216 (1944). Of course, Korematsu's application of that principle was anything but robust. Moreover, Korematsu did not say which constitutional provision governed the inquiry when the government in question is the federal government. Clarification of that point came in Bolling v. Sharpe, which held that the Fourteenth Amendment's equal protection guarantee should be deemed incorporated into the Due Process Clause of the Fifth Amendment. 347 U.S. 497, 499-500 (1954).
16. McCall v. McDowell, 15 F. Cas. 1235 (C.C.D. Cal. 1867) (No. 8,673). For more on this case, see infra text accompanying notes 160-167.
17. Act of Mar. 3, 1863, ch. 81, § 1, 12 Stat. 755, 755 (amended 1866 & 1867). As is well known, President Lincoln had earlier suspended the writ without legislative authority. For a brief discussion of that action, see infra text accompanying notes 109-111. The 1863 Act's provision authorizing the President to suspend the writ raises the question whether the suspension authority is delegable in that manner. The Supreme Court has never conclusively answered that question, but every congressionally authorized suspension in U.S. history has happened pursuant to a delegation rather than a direct suspension by Congress itself. For a discussion of the post-Civil War suspensions, see infra Part II.D.
18. Proclamation No. 7, reprinted in 13 Stat. 734 (1863).
19. See McCall, 15 F. Cas. at 1237 (quoting April 17, 1865 order).
20. Id.
21. I make no claim here about the state of First Amendment doctrine at the time of the actual case. I use the case only to raise general questions about the effect of a suspension.
22. See, e.g., Rankin v. McPherson, 483 U.S. 378, 378 (1987) (holding that the First Amendment prohibited firing a clerk in a county constable's office for stating to a co-worker, after hearing of an attempt on the President's life, that "if they go for him again, I hope they get him"); Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam) ("[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."). There is no indication that the statements in the case described here were either directed at inciting imminent lawlessness or were likely to have that effect. See McCall, 15 F. Cas. at 1237.
23. See Military Commissions Act (MCA) of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (to be codified in scattered sections of 10, 18, 28, 42 U.S.C). The MCA provides that [n]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination. Id. § 7(a) (to be codified at 28 U.S.C. § 2241(e)). The government has defended that provision by arguing that to the extent it is deemed a suspension of the writ, it is a valid suspension. See Respondent-Appellee's Reply in Support of Motion to Dismiss for Lack of Jurisdiction at 40-41, al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007) (No. 06-7427), available at http://www.brennancenter.org/dynamic/subpages/ download_file_47350.pdf (on file with the Columbia Law Review). The Fourth Circuit did not directly address that argument in its recent decision holding the MCA inapplicable to the apprehension and detention of an alleged enemy combatant within the United States. See al-Marri, 487 F.3d at 168 (explaining that court need not reach constitutional issues raised by parties). But litigation in that case is ongoing. It is also possible, though fairly unlikely, that the issue could arise in the set of cases now pending before the Supreme Court involving the application of the MCA to the detention of alleged enemy combatants at Guantánamo Bay. See Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007), cert. granted, 127 S. Ct. 3078 (2007).
24. In addition to those flagged above in notes 4, 9, and 13, the questions include whether the Clause implicitly requires that habeas be made available or simply establishes limits on its removal; what the extent of any required availability is; what the difference is between a suspension of the writ and a permissible adjustment of the writ's reach; whether the guarantee of the writ extends to detentions outside the United States; and whether and how a detainee's citizenship affects the applicability of the habeas guarantee. See David L. Shapiro, Habeas Corpus, Suspension, and Detention: Another View, 82 Notre Dame L. Rev. 59, 60, 72 n.54 (2006) (identifying these questions).
25. 542 U.S. 507, 554-79 (2004) (Scalia, J., dissenting).
26. See Morrison, supra note 4, at 415.
27. Hamdi, 542 U.S. at 554, 564, 578 & n.6 (Scalia, J., dissenting).
28. This is evident from Justice Scalia's identification of the Due Process Clause as the principal constitutional barrier to extrajudicial detention of U.S. citizens. See id. at 556-58. Suspension of the writ, on his understanding, removes that ground of unconstitutionality. See id. at 578 n.6 (referring to suspension as "justify[ing] indefinite imprisonment without trial").
29. David Dyzenhaus, Schmitt v. Dicey: Are States of Emergency Inside or Outside the Legal Order?, 27 Cardozo L. Rev. 2005, 2006 (2006).
30. See Morrison, supra note 4, at 426-42; Dyzenhaus, supra note 25, at 2031-33.
31. Morrison, supra note 4, at 432-37.
32. Id. at 435-37; see also Dyzenhaus, supra note 25, at 2032 (stating that suspension is not "a total derogation from law, but a temporary denial of access to certain parts of the law").
33. Morrison, supra note 4, at 440-42, 448-51.
34. Shapiro, supra note 20.
35. Id. at 86-88.
36. Id. at 89-90.
37. Id. at 89; see also id. at 86 ("Detention [w]ithin the [s]cope of a [v]alid [s]uspension [i]s [n]ot [u]nlawful.").
38. Id. at 86 (emphasis added).
39. Dyzenhaus, supra note 25, at 2006. Professor Shapiro stresses, however, that his argument applies only to the discrete question of the legality of the detention itself, not to related matters like treatment during detention or military trials. See Shapiro, supra note 20, at 90-95.
40. See Richard H. Fallon, Jr. & Daniel J. Meltzer, Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror, 120 Harv. L. Rev. 2029, 2045 n.53 (2007) ("reject[ing]" in one sentence my argument in Hamdi's Habeas Puzzle, supra note 4, on the ground that it had been "persuasively rebutted" by Professor Shapiro); Tyler, supra note 1, at 387, 408 n.394 (expressing at least qualified agreement with Professor Shapiro's argument by opining that "core due process rights" are "[i]n effect . . . displaced by the suspension" and that "with such rights, perhaps additional constitutional safeguards [are] suspended as well").
41. Cf. Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv. L. Rev. 1731, 1780 n.249 (1991) [hereinafter Fallon & Meltzer, Constitutional Remedies] (proposing an approach to constitutional remedies that, while "not intended to be strictly 'originalist,'" does look to doctrinal evolution from the Founding through the late nineteenth century as evidence of "our early legal or constitutional 'tradition'").
42. For Professor Shapiro's recognition of this obligation, see, for example, Shapiro, supra note 20, at 90 (referring to executive officials' "oaths to support the Constitution and laws").
43. See generally Mitchell N. Berman, Constitutional Decision Rules, 90 Va. L. Rev. 1 (2004) [hereinafter Berman, Decision Rules]. For further citations to the literature, see infra note 319.
44. See generally Daniel John Meador, Habeas Corpus and Magna Carta: Dualism of Power and Liberty 3-13 (1966) (discussing early development and uses of writ). Interestingly, as Meador describes, although the origins of habeas corpus are often traced to the Magna Carta, in fact "the two were unrelated in origin." Id. at 5.
45. Id. at 4; see also Robert S. Walker, The Constitutional and Legal Development of Habeas Corpus as the Writ of Liberty 88 (1960) ("In the [sixteenth- and seventeenth-century] battle against royal despotism the [Magna Carta] was adduced as evidence of the illegality of arbitrary executive commitments and the writ of habeas corpus was seized upon as the most likely instrument by which such commitments could be subjected to due process.").
46. 31 Car. 2, c. 2. Cf. Hamdi v. Rumsfeld, 542 U.S. 507, 557-58 (2004) (Scalia, J., dissenting) (describing basic provisions and operation of the Act).
47. 1 W. & M., cc. 2, 7 (1688); see also 1 W. & M., c. 19 ("An Act for Impowering Their Majestyes to Committ without Baile such Persons as They shall finde Just Cause to suspect are Conspireing against the Government"). Although the statute books show these acts as having passed in 1688, and although modern sources often follow suit, see, e.g., Hamdi, 542 U.S. at 562 (Scalia, J., dissenting), Paul Halliday and G. Edward White explain that this is an error, at least according to modern dating methods: In fact no Parliament sat in 1688, so no act could have passed that year. The error arises from the fact that until 1752, the new year was reckoned in England as beginning on March 25 . . . . Thus items dated 1 January to 24 March 1688, by this "Old Style" mode of dating, belong to 1689 by "New Style" dating. Paul D. Halliday & G. Edward White, The Suspension Clause: English Text, Imperial Contexts, and American Implications 36-37 n.109 (unpublished manuscript, on file with the Columbia Law Review), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_ id=1008252 (posted Aug. 26, 2007).
48. See, e.g., 7 & 8 Will. 3, c. 11 (1696) ("An Act for impowering His Majestie to apprehend and detain such p[er] sons as hee shall find Cause to suspect are conspiring against His Royal Person or Government"); 1 Geo., stat. 2, c. 8 (1714) ("An Act to impower his Majesty to secure and detain such Persons as his Majesty shall suspect are conspiring against his Person and Government"); 9 Geo., c. 1 (1722) (same); 17 Geo. 2, c. 6 (1744) (same); see also Thoughts on the Suspension of the Habeas Corpus Act 10 (London, J. Debrett 1794) (stating that the suspension then contemplated in Parliament was "the tenth time in a space of little more than an hundred years"). As for the terms of these statutes, a 1794 suspension act is typical: [E]very Person or Persons that are or shall be in Prison within the Kingdom of Great Britain at or upon the Day on which this Act shall receive his Majesty's Royal Assent, or after, by Warrant of his said Majesty's most Honourable Privy Council, signed by six of the said Privy Council, for High Treason, Suspicion of High Treason, or treasonable Practices, or by Warrant, signed by any of his Majesty's Secretaries of State, for such Causes as aforesaid, may be detained in safe Custody, without Bail or Mainprize, until the first Day of February one thousand seven hundred and ninety-five; and . . . no Judge or Justice of the Peace shall bail or try any such Person or Persons so committed, without Order from his said Majesty's Privy Council, signed by six of the said Privy Council, till the said first Day of February one thousand seven hundred and ninety-five; any Law or Statute to the contrary notwithstanding.
49. Geo. 3, c. 54 (1794). Parliament used similar language in 1 W. & M., cc. 2, 7, 19, and 7 & 8 Will. 3, c. 11.
50. See 5 Parl. Hist. Eng. (1689) 266-76 (recounting "Debate on the Habeas Corpus Suspension Bill," during which numerous speakers spoke of bill as "suspending" Habeas Corpus Act).
51. E.C.S. Wade & A.W. Bradley, Constitutional Law 719 (8th ed. 1970).
52. See A.V. Dicey, Introduction to the Study of the Law of the Constitution 230 (10th ed. 1959) (noting that "every . . . Habeas Corpus Suspension Act affecting England . . . has been an annual Act, and must, therefore, if it is to continue in force, be renewed year by year").
53. See 17 Geo. 3, c. 9 (1777); 18 Geo. 3, c. 1 (1778); 19 Geo. 3, c. 1 (1779); 20 Geo. 3, c. 5 (1780); 21 Geo. 3, c. 2 (1781); 22 Geo. 3, c. 1 (1782).
54. See 34 Geo. 3, c. 54; 35 Geo. 3, c. 3 (1795); 38 Geo. 3, c. 36 (1798); 39 Geo. 3, cc. 15, 44 (1799); 39 & 40 Geo. 3, c. 20 (1800); 41 Geo. 3, c. 32 (1800); 41 Geo. 3, c. 26 (1801).
55. 3 William Blackstone, Commentaries *129.
56. It is worth stressing, diough, that these suspensions applied only to people held on suspicion of treason or treasonable practices. See Gerald L. Neuman, The Habeas Corpus Suspension Clause After INS v. St. Cyr, 33 Colum. Hum. Rts. L. Rev. 555, 563 (2002) ("Parliament engaged in the practice of partially suspending the writ in times of political crisis."). For a general discussion of partial suspensions, see Morrison, supra note 4, at 430-31.
57. See supra text accompanying notes 43-44.
58. 31 Parl. Hist. Eng. (1794) 595. Similar points were made in the House of Commons during debate on the same bill. See, e.g., id. at 564 (statement of William Pitt, Chancellor of the Exchequer) (explaining that during a suspension, ministers would remain "equally answerable for any abuse of [the] power [to arrest and detain], if they should abuse it, as they were for the abuse of any other discretionary power which was vested in them").
59. 31 Parl. Hist. Eng. (1795) 1290; see also, e.g., 35 Parl. Hist. Eng. (1801) 1537 (statement of Lord Chancellor) (stating that "the suspension of the Habeas Corpus act did not take away the responsibility of the minister").
60. This view of suspension also was not something that emerged only at the end of the eighteenth century. The last word in the debate on the very first suspension bill in 1689, for example, went to Sir William Williams, who allowed that "Privy-Counsellors, by this bill, may commit [someone to detention] for suspicion of treason," but also stressed that "if they commit a person without cause, they must answer it to the law, and the kingdom." 5 Parl. Hist. Eng. (1689) 276.
61. Dicey, supra note 47.
62. As Charles Fried put it, Dicey's "seminal work on the British constitution may be seen as the nearest thing to a binding constitutional text Britain has ever had, judging by the ubiquitous citation to it in the constitutional literature." Charles Fried, Book Review, 2 Int'l J. Const. L. 723, 724 (2004);
63. see also, e.g., Luc B. Tremblay, General Legitimacy of Judicial Review and the Fundamental Basis of Constitutional Law, 23 Oxford J. Legal Stud. 525, 546 (2003) (calling Dicey "the most influential British theorist in modern times").
64. Dicey, supra note 47, at 230, 233; see also id. at 233-34 (observing that once suspension expires, detaining officers "are liable to actions or indictments for their illegal conduct, and can derive no defence whatever from the mere fact that, at the time when the unlawful arrest took place, the Habeas Corpus Act was . . . not in force"). Dicey espoused a similar view of the effect of declaring martial law, opining that although the Crown had the prerogative to make such a declaration in extreme circumstances, soldiers and other officials exercising martial powers had "no exemption from liability to the law for [their] conduct in restoring order." Id. at 289. Rather, they were "liable to be called to account before a jury for the use of excessive, that is, of unnecessary force." Id. That said, Dicey did also treat the suspension of the writ and the declaration of martial law as distinct acts. One does not necessarily entail the other, nor does the effect of one dictate the effect of the other.
65. This is true, for example, of Dicey's denial of the existence of administrative law in Anglo-American legal systems. See id. at 330 ("In England, and in countries which, like the United States, derive their civilisation from English sources, the system of administrative law and the very principles on which it rests are in truth unknown."). For a recent critique of Dicey on that point, see Jerry L. Mashaw, Recovering American Administrative Law: Federalist Foundations, 1787-1801, 115 Yale L.J. 1256, 1263 (2006).
66. Wade & Bradley, supra note 46, at 719.
67. Id. at 382-83; see also, e.g., William F. Duker, A Constitutional History of Habeas Corpus 171 n.118 (1980) ("It should be noted that suspension did not legalize arrest and detention. . . . It merely suspended the benefit of a particular remedy in the specified cases.");
68. R.J. Sharpe, The Law of Habeas Corpus 95 (2d ed. 1989) (citing Dicey and noting that "[o]n its face, a suspension act gave no general power to arrest and detain people simply because they were thought to be dangerous").
69. Dicey, supra note 47, at 230-31.
70. See id. at 232 ("[T]he best proof of the very limited legal effect of . . . suspension is supplied by the fact that before a Habeas Corpus Suspension Act runs out its effect is, almost invariably, supplemented by legislation of a totally different character, namely, an Act of Indemnity."); Duker, supra note 61, at 171 n.118 ("The suspension statute was usually accompanied by an act of indemnity."). Dicey here said "almost invariably" and Duker said "usually," but elsewhere Dicey was more absolute: "An Act suspending the Habeas Corpus Act, which has been continued for any length of time, has constandy been followed by an Act of Indemnity." Dicey, supra note 47, at 235. My research reveals no significant departures from the practice, though it is possible there were some short-lived exceptions. Cf. 35 Parl. Hist. Eng. (1801) 1508, 1512, 1524, 1535 (various speakers identifying a total of five precedents, from 1689 to 1780, for the indemnity bill then being considered).
71. 35 Parl. Hist. Eng. (1801) 1535.
72. 41 Geo. 3, c. 66 (1801).
73. Dicey, supra note 47, at 233; see also Wade & Bradley, supra note 46, at 719 (explaining that indemnity acts were passed "in order to protect officials concerned from the consequences of any incidental illegal acts which they might have committed under cover of the suspension of the prerogative writ").
74. For this reason, although I will follow the convention and refer to these measures as acts of indemnity, I will generally refer to their effect as conferring immunity.
75. 41 Geo. 3, c. 66.
76. 3 Thomas Erskine May, The Constitutional History of England Since the Accession of George the Third, 1760-1860, at 16 (London, Longman, Green & Co., 7th ed. 1882); see also 35 Parl. Hist. Eng. (1801) 1509 (statement of William Pitt, Chancellor of the Exchequer) (describing indemnity acts as designed "to protect persons from punishment who had acted according to the law, and who, if they should be accused, could not defend themselves without disclosing secrets which they could not disclose without the greatest danger to the lives of individuals, and to the state"); id. at 1534-35 (statement of Lord Hobart) (explaining that "[i]f such a bill did not pass, and any action or actions should be brought against ministers for their conduct, it would be impossible for them to justify or defend the same, without an open disclosure of the means by which the said traitorous designs were discovered").
77. Dicey, supra note 47, at 233 (referring to the "arrest and imprison [ment of] a perfectly innocent man without any cause whatever, except . . . the belief that it is conducive to the public safety").
78. Id. at 235.
79. Id. (emphasis omitted).
80. Id. at 236 ("[Everything depend[ed] on the terms of the Act of Indemnity.").
81. See Sharpe, supra note 61, at 95 ("[T]he minister of state could only hope that indemnity would be given, and perhaps had to guard against arbitrariness lest the legislators be provoked to withhold their protection.").
82. See Dyzenhaus, supra note 25, at 2033 (stressing that the extent of the immunity is "dependent on the terms of the Act of Indemnity," and noting that such an act "could make it clear that any acts, including acts done in bad faith and acts that are recklessly cruel, are covered").
83. See Dicey, supra note 47, at 236 ("Any suspicion on the part of the public, that officials had grossly abused their powers, might make it difficult to obtain a Parliamentary indemnity for things done while the Habeas Corpus Act was suspended.").
84. 41 Geo. 3, c. 66 (1801).
85. 35 Parl. Hist. Eng. (1801) 1539.
86. Dicey, supra note 47, at 236. Similarly, the American historian J.G. Randall described English indemnity acts in general as "offer[ing] protection only for bona fide acts, done of necessity, and not for excesses of authority." J.G. Randall, Constitutional Problems Under Lincoln 188 n.3 (rev. ed. 1951).
87. May, supra note 69, at 16.
88. Dicey, supra note 47, at 39-40. 82. See Shapiro, supra note 20, at 83-84 ("[T]here is a critical difference between the context of [the English] experience and our own . . . . [T]he [Parliament] was legally free to suspend the writ whenever it chose to do so . . . .").
89. As Professor Shapiro puts it, I see the guarantee [of habeas corpus implicit in the Suspension Clause], when coupled with the explicit power to suspend, . . . as supporting the conclusion that the presence of the specified justifications for a valid suspension of the writ has more far-reaching consequences under our law than did an analogous suspension in England by an unfettered legislature. Id. at 84.
90. Id. at 86.
91. For one statement of this approach, see H. Jefferson Powell, A Community Built on Words: The Constitution in History and Politics 208 (2002) ("In constitutional argument it is legitimate to invoke text, constitutional structure, original meaning, original intent, judicial precedent and doctrine, political-branch practice and doctrine, settled expectations, the ethos of American constitutionalism, the traditions of our law and our people, and the consequences of differing interpretations of the Constitution.").
92. See Shapiro, supra note 20, at 86.
93. See Fallon & Meltzer, Constitutional Remedies, supra note 37, at 1780 n.249 (suggesting that the period from the Founding to the late nineteenth century may provide "a measure of what might . . . loosely be termed our early legal or constitutional 'tradition'").
94. U.S. Const, art. I, § 9, cl. 2.
95. See McNally v. Hill, 293 U.S. 131, 136 (1934) ("To ascertain its meaning and the appropriate use of the writ in the federal courts, recourse must be had to the common law, from which the term was drawn . . . ."), overruled on other grounds by Peyton v. Rowe, 391 U.S. 54 (1968); Ex parte Bollman, 8 U.S. (4 Cranch) 75, 93-94 (1807) ("[F]or the meaning of the term habeas corpus, resort may unquestionably be had to the common law . . . .").
96. As a pamphleteer during the Civil War put it, "Are we not using an English law expression, the 'Writ of Habeas Corpus?' Is there not a known method of getting rid of this Writ - i.e., suspension of the privilege? . . . Have we not taken our idea of suspending the privilege from that?" Presidential Power over Personal Liberty: A Review of Horace Binney's Essay on the Writ of Habeas Corpus 40 (n.p. 1862) (attributed to Isaac Myer); cf. Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947) ("[I]f a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it."). Also supporting this presumption is the fact that, at the time the federal Constitution was drafted and ratified, several states already had habeas corpus guarantees in their own constitutions that, by their terms, seem to have conceived of suspension as relating only to the habeas remedy. See, e.g., Mass. Const. pt. 2, ch. 6, art. VII (1780) (providing that the "privilege and benefit of the writ of habeas corpus shall be enjoyed in this commonwealth in the most free, easy, cheap, expeditious and ample manner; and shall not be suspended by the legislature, except upon the most urgent and pressing occasions, and for a limited time not exceeding twelve months"); N.H. Const. pt. 2, art. 91 (1784) (containing provision nearly identical to the Massachusetts provision, except time for suspension was limited to three months); N.C. Const. of 1776 art. XIII, reprinted in 5 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America 2788 (Francis Newton Thorpe ed., 1909) (providing "[t]hat every freeman, restrained of his liberty, is entitled to a remedy, to inquire into the lawfulness thereof, and to remove the same, if unlawful; and that such remedy ought not to be denied or delayed"). The Framers of the Constitution would also have been aware that the writ had been suspended in 1786 in Massachusetts, during Shays's Rebellion. See Act for Suspending the Privilege of the Writ of Habeas Corpus, ch. 10, 1786 Mass. Acts 510 (covering all persons arrested under warrant "whom the Governour and [Privy] Council, shall deem the safety of the Commonwealth requires should be restrained of their personal liberty, or whose enlargement is dangerous thereto"). I have found no evidence suggesting that this suspension entailed anything other than what the Massachusetts Constitution by its terms appears to have contemplated, namely removal of the habeas remedy.
97. 2 The Records of the Federal Convention of 1787, at 341 (Max Farrand ed., rev. ed. 1986) [hereinafter Farrand's Records].
98. The entirety of the discussion as recorded by Madison is as follows: Mr. Pinkney, urging the propriety of securing the benefit of the Habeas corpus in the most ample manner, moved "that it should not be suspended but on the most urgent occasions, & then only for a limited time not exceeding twelve months" Mr. Rutlidge was for declaring the Habeas Corpus inviolable - He did [not] conceive that a suspension could ever be necessary at the same time through all the States - Mr. Govr Morris moved that "The privilege of the writ of Habeas Corpus shall not be suspended, unless where in cases of Rebellion or invasion the public safety may require it". Mr. Wilson doubted whether in any case [a suspension] could be necessary, as the discretion now exists with Judges, in most important cases to keep in Gaol or admit to Bail. The first part of Mr. Govr Morris' [motion], to the word "unless" was agreed to nem: con: - on the remaining part; N. H. ay. Mas. ay. Ct. ay. Pa. ay. Del. ay. Md. ay. Va. ay. N. C. no. S. C. no. Geo. no. Id. at 438 (alterations in original).
99. See Shapiro, supra note 20, at 84 n.104.
100. Id.
101. See id. at 87.
102. Id.
103. Id.
104. See supra text accompanying notes 43-49 (describing frequent British suspensions from time of Habeas Corpus Act's passage through American Revolution and later).
105. This reading draws support from the fact that the very next clause in the Constitution, the Bill of Attainder and Ex Post Facto Clause, U.S. Const. art. I, § 9, cl. 3; see also id. art. I, § 10, cl. 1, was also evidently aimed at prohibiting certain abuses that had become common in England. As Justice Chase observed in the early case Calder v. Bull, The prohibition against . . . making any ex post facto laws was introduced for greater caution, and very probably arose from the knowledge, that the Parliament of Great Britain claimed and exercised a power to pass such laws, under the denomination of bills of attainder, or bills of pains and penalties.
106. U.S. (3 Dall.) 386, 389 (1798) (emphasis omitted); see also Stogner v. California, 539 U.S. 607, 611-15 (2003) (discussing Justice Chase's explication of Ex Post Facto Clause with reference to past abuses by Parliament).
107. See supra Part I.
108. See Story, supra note 8, at 483 (noting that habeas is "jusdy esteemed the great bulwark of personal liberty").
109. See supra note 92 (recounting remarks of Rutlidge and Wilson, as recorded by Madison).
110. Madison expressed this view in an October 17, 1788 letter to Thomas Jefferson: I am inclined to think that absolute restrictions in cases that are doubtful, or where emergencies may overrule them, ought to be avoided. The restrictions however strongly marked on paper will never be regarded when opposed to the decided sense of the public; and after repeated violations in extraordinary cases, they will lose even their ordinary efficacy. Should a Rebellion or insurrection alarm the people as well as the Government, and a suspension of the Hab. Corp. be dictated by the alarm, no written prohibitions on earth would prevent the measure. Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), in 11 The Papers of James Madison 295, 299 (Robert A. Rutland et al. eds., 1977) (emphasis and footnote omitted).
111. For a good discussion of this episode, see David P. Currie, The Constitution in Congress: The Jeffersonians, 1801-1829, at 130-33 (2001).
112. 16 Annals of Cong. 44, 402 (1807).
113. The vote to reject was 113 to 19. See id. at 424-25.
114. See, e.g., id. at 407 (statement of Rep. Elliot) (calling suspension a "temporary prostration of the Constitution itself"); id. at 409 (statement of Rep. Eppes) (cautioning that suspending the writ "suspends, at once, the chartered rights of the community, and places even those who pass the act under military despotism"); id. at 422 (statement of Rep. Smilie) (describing suspension as "in all respects, equivalent to repealing that essential part of the Constitution which secures that principle which has been called, in the country where it originated, the 'palladium of personal liberty'"). While plainly conveying great disinclination to suspend the writ, it is not clear what, precisely, these members thought a suspension would do. A "temporary prostration of the Constitution itself" could mean the legalization of otherwise unlawful detention, but it could also simply mean the removal of the principal remedy for such illegality.
115. Id. at 420-21.
116. See Daniel Farber, Lincoln's Constitution 157-63 (2003) (detailing confrontation between Lincoln and Taney over presidential suspension). I say "well-recognized" because some, including Professor Farber, describe Andrew Jackson as having suspended the writ in his capacity as commanding general of New Orleans during the War of 1812. See id. at 160. For more on that episode, see Abraham D. Sofaer, Emergency Power and the Hero of New Orleans, 2 Cardozo L. Rev. 233, 242-49 (1981). As Sofaer's account reveals, it remains unclear whether Jackson claimed the authority to suspend the writ or simply acted in defiance of it. See id. at 246-48. The latter reading is supported by the fact that Jackson was ultimately found in contempt of court and fined $1,000, which he paid. See id. at 248-50.
117. Decades later, Congress took up the question whether to indemnify Jackson for his payment of the fine. The debates on that question included a few scattered statements generally in line with the view of suspension that I am laying out here. In 1844, for example, Representative Barnard of New York stated that although Congress "might suspend the habeas corpus act, . . . it could not suspend the Constitution." Cong. Globe, 28th Cong., 1st Sess. 92 (1844).
118. See Ex parte Merryman, 17 F. Cas. 144, 148-53 (C.C.D. Md. 1861) (No. 9,487).
119. See infra Part II.C.
120. For a discussion of the lively events in both chambers leading up to the bill's passage, see Randall, supra note 79, at 190-91.
121. Cong. Globe, 37th Cong., 3d Sess. 14, 20 (1862).
122. See infra text accompanying notes 128, 134-135 (discussing U.S. bill's provision for immunity from liability).
123. See Cong. Globe, 37th Cong., 3d Sess. 529-34 (1863) (statement of Sen. Davis) (recording arguments against bill).
124. Trumbull was the author of at least part of the bill that Congress ultimately passed in this area. See David P. Currie, The Civil War Congress, 73 U. Chi. L. Rev. 1131, 1161 n.142 (2006) (noting Trumbull wrote one of the clauses).