Abstract

The habeas corpus provision in the United States Constitution, known as the Suspension Clause, has long confounded courts and scholars as to its intended purpose. The wording of the Clause seems to promise the availability of "[t]he Privilege of the Writ of Habeas Corpus" - or, at least preclude the United States Congress from undermining that privilege where it is otherwise available unless Congress takes the dramatic step of enacting suspension legislation. The very same Clause, recognizing the extraordinary nature of suspension, precludes the legislature from adopting such a state of affairs except in the face of rare and dire circumstances - namely, "Cases of Rebellion or Invasion." But beyond these apparent truths, numerous questions going to the nature and purpose of the habeas clause remain. To tackle the range of questions going to the role and meaning of the Suspension Clause in the United States constitutional framework requires careful study of the backdrop against which the Clause was adopted in order to make sense of what those who drafted and ratified the Constitution hoped to achieve by its inclusion. Although many argue over whether history should be the determinative factor in resolving constitutional questions as they arise today, no one seriously questions that history is deeply relevant to debates over the Suspension Clause. Indeed, Chief Justice John Marshall declared long ago that understanding the role of habeas corpus in the American Constitution requires looking to the privilege's origins in English law. As he phrased things in discussing "this great writ ... , [t]he term is used in the Constitution, as one which was well understood." Further, modern Supreme Court jurisprudence still trains our attention on the Founding period, positing that '"at the absolute minimum,' the [Suspension] Clause protects the writ as it existed when the Constitution was drafted and ratified." Accordingly, this article explores the relevant historical backdrop to the Founding period before carrying the story forward to chronicle how the Suspension Clause has been interpreted during important periods in American history, sometimes correctly and - as will be seen - sometimes incorrectly.

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