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08/29/2018

John Harrison: The Original Meaning of the Habeas Corpus Suspension Clause
Michael Ramsey

John C. Harrison (University of Virginia School of Law) has posted The Original Meaning of the Habeas Corpus Suspension Clause on SSRN.  Here is the abstract:

The Habeas Corpus Suspension Clause of Article I, Section 9, is primarily a limit on Congress’ authority to authorize detention by the executive. It is not mainly concerned with the remedial writ of habeas corpus, but rather with the primary right of natural liberty. Suspensions of the privilege of the writ of habeas corpus are statutes that vest very broad discretion in the executive to decide which individuals to hold in custody. Detention of combatants under the law of war need not rest on a valid suspension, whether the combatant is an alien or a citizen of the United States. The Suspension Clause does not affirmatively require that the federal courts have any jurisdiction to issue the writ of habeas corpus, and so does not interfere with Congress’ general control over the jurisdiction of the federal courts. The clause does not impose any limits on congressional authority with respect to the habeas corpus jurisdiction of state courts that would not exist in its absence.

UPDATE:  Kurt Lash calls attention to this methodological point (at pp 41-42 of the draft):

The reading presented here rests on an interpretive premise that I will identify but not defend. The premise is that when a legal text refers to an existing legal phenomenon, the text refers to the phenomenon, about which the enactors of the text may be mistaken. Someone who adopted a rule about suspensions of the habeas corpus, referring thereby to the British statutes that were called by that name, might have been in error about the content of those statutes. In my view, the reference is to the statutes, not the author’s incorrect understanding of them.

That approach may require the integration of facts about the law that no one at the time had brought together. While the association of suspension with executive discretion was well known when the Constitution was adopted, it may be that no individual had come to the conclusion that discretion is the feature that unites British and American suspensions. In order to understand the Suspension Clause, which refers to the legal practices that were called suspension of habeas corpus and similar names, that integration must be performed. The reading presented  here, which relies only on legal facts and concepts available at the time of the framing, may thus be both novel and true to the original meaning.