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Seth Barrett Tillman on Richard Fallon
Michael Ramsey

Recently published, from Seth Barrett Tillman: Canonical Cases and Other Quodlibets: A Response to Professor Fallon, 97 Tex. L. Rev. Online 13 (2018).  Here is an excerpt (pp. 16-20):

Professor Fallon states:

The Lincoln Administration denied the court’s jurisdiction in Ex parte Merryman, but its position was debatable at best, tendentious at worst. A federal court had clear authority to issue the writ of habeas corpus unless entitlement to the privilege of the writ was validly suspended. [Richard H. Fallon, Jr., Judicial Supremacy, Departmentalism, and the Rule of Law in a Populist Age, 96 Tex. L. Rev. 487, 505–06 (2018) (emphasis added).]

The relevant constitutional provision here is the Suspension Clause, which provides: “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.” [U.S. Const. art. I, § 9, cl. 2.] As a textual matter, the clause does not address suspension of the writ (or even the suspension of habeas corpus simpliciter); rather, the clause speaks to suspension of the privilege. The two concepts are related, but they are not the same. Professor Fallon presumes that a suspension of the privilege suspends the writ. I cannot say he is alone in believing this. For our purposes here, whether or not the text is sufficiently clear is unimportant, nor does it matter what could be fairly established as a matter of original public meaning. What matters is simply this—the Supreme Court has addressed this issue.

In Ex parte Milligan, a unanimous Supreme Court stated: “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 . . . .” [Ex parte Milligan,71 U.S. (4 Wall.) 2, 130–31 (1866) (Davis, J.).] Professor Fallon’s restatement of the law is not in tension with the Court’s opinion in Milligan; it is its antithesis. How can this be? Milligan is part of the received case law: it is, I believe, canonical. Fallon discusses Milligan in his own papers. Not only does Fallon take a position at odds with Milligan, but he does so without giving his readers a courtesy but see. Why? Is it because some consider Milligan’s phraseology “cryptic”? [Note, Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1265–66 (1970).] Perhaps, we might call this doctrinalism by “ink blot.”

It would be unfair for me to turn to other examples without first giving some (reasonably likely) explanation of what it means to suspend the privilege of the writ, as opposed to suspending writ itself. Congress can suspend the writ or the privilege of the writ or both. But a suspension of the privilege of the writ is a far greater power than suspending the writ itself. Indeed, it can be fairly said that suspending the privilege of the writ is a power greater than and substantially unlike any other power granted to Congress by the Constitution.

When a prisoner seeks to test the legality of his detention, he petitions a court for a writ of habeas corpus. The right he seeks to vindicate, even if a constitutional right, is inchoate. Congress has substantial control over this inchoate right because Congress controls the jurisdiction of the lower federal courts. Should the adjudication end, and the prisoner be awarded the writ, in normal circumstances, the jailor will release the prisoner. But when circumstances are not normal, e.g., during a civil war or insurrection, the jailer might err, or he might actively choose to resist the writ. At that juncture, round two begins—i.e., a contempt hearing against the jailer. (This two-stage process is substantively similar to what happened in [Ex parte] Merryman [and in Wolfe Tone’s Case [1798] 27 How. St. Tr. 613 (K.B.) (Ir.) (Kilwarden, C.J.), https://tinyurl.com/ycm2lyyx].) In round two, the court does not adjudicate the underlying right, i.e., the prisoner’s right to the writ—that was already decided in round one. Here, in round two, the prisoner merely moves into evidence (i.e., the evidentiary privilege of . . .) the writ, which had already been awarded in round one. A suspension of the privilege of the writ precludes the court from allowing the prisoner (in round two) to move into evidence the writ, which had already been awarded (in round one). Of course, where the privilege has been suspended, but not the writ itself, a court might (and, per Milligan, must) still issue the writ . . . but enforcement via contempt would not be possible. [Compare U.S. Const. art. I, § 9, cl. 2 (“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.” (emphasis added)), with Mass. Const. of 1780, pt. 2, ch. VI, art. VII (“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.” (emphases added)).]

In more functional terms, the suspension of the privilege of the writ nullifies (or, at least, suspends ad interim) a final judgment of a court. Here what is suspended is not an inchoate or abstract right, but a right that had been finally adjudicated and determined by a properly constituted and competent court with jurisdiction. That is why the Suspension Clause was an absolute necessity to the constitutional text. Given our separation-of-powers structured constitution, although Congress could withdraw the writ in cases not yet adjudicated, Congress—absent the Suspension Clause—could not withdraw the privilege in cases where the writ had already been awarded. That is because the sine qua non of independent Article III courts is that their final judgments (at least, after the conclusion of appellate review) are—final.

Professor Fallon and others might not agree with the conjecture I have put forward above; he or they might reject each and every claim made here. But whether my conjectures are correct or not does not get him or them off the (intellectual) hook: they still have to pick up the gauntlet. Our inquiry here is not about obscure and opaque eighteenth century constitutional text, i.e., the Suspension Clause, but about the holding of a canonical unanimous post-bellum prolix Supreme Court decision: Ex parte Milligan. Nonoriginalists are permitted to describe eighteenth constitutional text as an “ink blot.” But it is quite another thing to make a similar allowance in regard to a post-bellum Supreme Court opinion. Here, “ink blot” is not a sufficient answer. And if it is not a sufficient answer, why not look for other, better answers—in regard to both Milligan and the Suspension Clause’s text?