The Habeas Corpus Clause

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.

—Taylor Meehan

Introduction

The Habeas Corpus Clause, also known as the Suspension Clause, touches the “very core of liberty” by warding off “indefinite imprisonment at the will of the Executive.”¹ Habeas corpus roughly translates to a command to bring the body of the imprisoned to the court. The courts have long used a writ of habeas corpus ad subjiciendum to examine the grounds for a person’s imprisonment and decide whether continued imprisonment is lawful. Sir William Blackstone wrote that the “Great Writ” of habeas corpus secured against the “dangerous engine of arbitrary government,” whereby the king could indefinitely detain his subject without due process, “secretly hurrying him to jail, where his sufferings are unknown or forgotten.”² The Suspension Clause assumes the continued existence of this preexisting right to petition for a writ of habeas corpus. The clause lets Congress decide when, if ever, the writ may be suspended “in Cases of Rebellion or Invasion.” The implications of that power remain “elusive.”³

History Before 1787

A fundamental principle of English law was that there would be no imprisonment without due process. In the words of the Magna Carta (1215), no man would be imprisoned “except by the lawful judgment of his equals or by the law of the land.” Imprisonment based on the whims of the Executive alone was generally unlawful.⁴ Over time, the common-law writ of habeas corpus became the means by which a prisoner could insist on those due process protections. Parliament codified the writ and enumerated procedural protections for its exercise in the Habeas Corpus Act of 1679. It promised a speedy trial without exceptions for wartime.⁵ Blackstone celebrated it as a “second magna carta, and stable bulwark of our liberties.”⁶

The Great Writ crossed the Atlantic and was well-established in all thirteen colonies.⁷ Even so, the Crown routinely denied the protections of England’s Habeas Corpus Act for colonists. In 1777, Parliament suspended the writ after the colonies declared independence.⁸

After the Revolutionary War and leading up to the 1787 Constitutional Convention, habeas corpus rights were affirmatively enshrined in some state statutes and in the Georgia, Massachusetts, New Hampshire, and North Carolina state constitutions.⁹ The Massachusetts constitution provided that “[t]he 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.”¹⁰ Massachusetts was the model for the habeas corpus provision proposed at the Constitutional Convention.¹¹

The Constitutional Convention

At the Constitutional Convention, it was generally assumed that habeas corpus was one of many preexisting and continuing rights. Perhaps for these reasons, it was not mentioned in the draft that was initially reported by the Committee of Detail,¹² just as other preexisting rights were not.

On August 20, 1787, Charles Pinckney of South Carolina submitted a habeas corpus provision to be referred to the Committee of Detail. Mirroring the Massachusetts provision, his proposal provided that the “privileges and benefit of the Writ of Habeas corpus shall be enjoyed in this government in the most expeditious and ample manner” and that the writ “shall not be suspended by the legislature, except upon the most urgent and pressing occasions, and for a limited time, not exceeding — months.”¹³ In committee, Pinckney proposed that the “limited time” should not exceed “twelve months.”¹⁴ Gouverneur Morris of Pennsylvania moved to revise the clause to read nearly as it does today without the twelve-month limitation.¹⁵ It contains a general rule and one exception: “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.”¹⁶

Delegates unanimously approved the first half of Morris’s proposal,¹⁷ but there was dissension and debate about the exception. North Carolina, South Carolina, and Georgia voted against giving the government the power to suspend the writ.¹⁸ John Rutledge of South Carolina objected to any mention of suspension and would have declared “Habeas Corpus inviolable.” James Wilson of Pennsylvania questioned when suspension would ever be necessary if judges had the discretion to refuse bail for public safety reasons.¹⁹ The dissenters feared that the power to suspend habeas would be an “engine of oppression” in the federal government’s hands to be used against states.²⁰

When proposed in August 1787, the clause appeared in what became Article III alongside the guarantee of criminal jury trials. However, at the end of the Convention, the Committee of Style moved the Suspension Clause to Article I, which defines the powers of the national legislature. There is no recorded debate by the Convention on this decision.²¹

The Ratification Debates

During ratification, the Suspension Clause became a central issue in the debate over whether to add a Bill of Rights. In Federalist No. 84, Alexander Hamilton wrote that “[t]he establishment of the writ of habeas corpus” and other protections would be “greater securities to liberty and republicanism” than any protections a Bill of Rights would contain. During the Virginia ratifying convention, Patrick Henry raised alarm about the Suspension Clause in a famous exchange over the Bill of Rights. He wrote that this provision and other express limitations on Congress’s power could be read to suggest that other rights “not expressly reserved” in the Constitution were “given up” to a Congress of general power.²² Edmund Randolph countered that inclusion of the Suspension Clause was a necessary “exception” to Congress’s specifically enumerated power to regulate the courts, which Congress could otherwise use to suspend the writ.²³

Early Practice and Precedent

Can federal courts grant the writ of habeas corpus based on the Suspension Clause alone, without relying on a statute? The First Congress avoided his question by enacting the Judiciary Act of 1789, which gave the federal courts power to grant the writ of habeas corpus.²⁴

Shortly thereafter, Congress contemplated suspending the writ during the Burr conspiracy. In 1807, Aaron Burr was suspected of treason. His alleged co-conspirators, including Erick Bollman, were arrested and petitioned for a writ of habeas corpus. In Ex parte Bollman (1807), the U.S. Supreme Court granted the writ because the evidence was too thin to support their continued detention.²⁵ In response, Congress contemplated suspending the writ. The bill to suspend the writ failed in the House, which was unwilling to give the President the power to detain on “bare suspicion.”²⁶

The Civil War

In the early days of the Civil War, President Abraham Lincoln questioned whether Congress alone could suspend the writ. He famously declared the writ suspended, without Congress, as Union troops moved through Maryland.

In May 1861, military officers arrested and detained alleged Southern sympathizer John Merryman at Fort McHenry.²⁷ Chief Justice Roger B. Taney ordered the fort’s commander to produce Merryman. General George Cadwalader refused on the grounds that the President had suspended the writ.²⁸ Taney responded “with some surprise” because he supposed “there was no difference of opinion, and that it was admitted on all hands, that the privilege of the writ could not be suspended, except by act of congress.”²⁹ By virtue of its placement in Article I, the power to suspend the writ was with Congress.³⁰ The President, Taney explained, had no unilateral power to suspend the writ.³¹ Taney did not actually order Merryman’s release and instead directed the clerk to transmit a copy of his opinion to Lincoln, leaving it for the President to decide what to do with Merryman.³²

Thus, contrary to a common misconception, Lincoln could not have defied Taney’s order because no such order was given.³³ Soon thereafter, Merryman was transferred to civilian authorities, charged with treason, and released on bail, but he was never tried.³⁴ In September 1862, President Lincoln issued a formal proclamation purporting to suspend habeas corpus for all persons arrested during the war by military authorities.³⁵

In March 1863, Congress averted a constitutional crisis by passing the Habeas Corpus Suspension Act.³⁶ Congress delegated to the President the power to decide when “the public safety” required suspension of the writ for as long as the war continued.³⁷ During Reconstruction, Congress again suspended the writ to quell rebellion by the Ku Klux Klan in South Carolina, thereby empowering the government to make preventive arrests of presumed Klan members.³⁸

Habeas Corpus After 9/11

The country’s response to the September 11, 2001, terrorist attacks reignited debate over the Suspension Clause and Congress’s power to limit habeas relief. In the wake of 9/11, Congress enacted laws that permitted detention of enemy combatants.³⁹ In a series of Supreme Court cases, detainees at a Navy facility in Guantanamo Bay, Cuba, challenged their detentions as violating the Suspension Clause.

In Hamdi v. Rumsfeld (2004), the Court divided over whether Congress, absent suspension, could authorize the indefinite detention of a U.S. citizen. Writing for a plurality, Justice Sandra Day O’Connor concluded that “[t]here is no bar to this Nation’s holding one of its own citizens as an enemy combatant.”⁴⁰ But the plurality found that Hamdi was entitled to more procedural due process protections to rebut the Executive’s factual assertions for his detention in court.⁴¹ Justice Antonin Scalia and Justice John Paul Stevens dissented. They concluded that the government had two choices: “prosecute him in federal court for treason or some other crime” or “relax the usual protections temporarily” by formally suspending the writ.⁴² There was no in-between, according to Justice Scalia, whereby the Constitution “merely guarantees that he will not be detained unless Congress by ordinary legislation says he can be detained.”⁴³

In the wake of Hamdi, Congress did not formally suspend the writ. Four years later, Boumediene v. Bush (2008) considered whether Congress could prohibit courts from considering habeas petitions from noncitizen detainees at Guantanamo. The Court held that the Suspension Clause applied extraterritorially at Guantanamo. As a result, the clause’s protections extended to noncitizens. Absent suspension, detainees were “entitled to the privilege of habeas corpus to challenge the legality of their detention” or an “adequate and effective substitute for habeas corpus.”⁴⁴

The Suspension Clause and State Prisoners

Beyond these prominent episodes, the habeas writ has been sought primarily by state prisoners challenging their criminal convictions. During Reconstruction, Congress empowered the federal courts to grant the writ to those who were in state custody.⁴⁵ That act began as proposed legislation to guarantee freedom for newly freed persons after the Civil War.⁴⁶ Over time, however, its broad text became the basis for state prisoners to challenge all types of criminal convictions or sentences imposed by state criminal courts, even after the criminal proceedings had ended.⁴⁷

That system of post-conviction review departs from the historic limits of the habeas writ, whereby the existence of a final criminal judgment was generally sufficient to establish the legality of imprisonment.⁴⁸ The Supreme Court has clarified that post-conviction claims “would not have been cognizable in habeas at all” at the Founding.⁴⁹ Congress limited post-conviction relief available in such circumstances with the Antiterrorism and Effective Death Penalty Act (AEDPA) in 1996.⁵⁰ The Supreme Court rejected the claim that these limitations violate the Suspension Clause.⁵¹ The Court distinguished “postconviction review after criminal proceedings” from cases of executive detention “where no trial has been held.”⁵²

Open Questions

• Does the Suspension Clause implicitly require that federal courts remain open for habeas relief? What about state courts?
• To what extent may Congress limit habeas relief? What limitations amount to a suspension of the writ? What constitutes a valid suspension? Who could challenge such a suspension? And what are the consequences: Can the imprisoned still redress an unlawful detention in other ways?
• Could courts still grant the writ even absent a statute saying they could do so?⁵³ Could there be a “permanent suspension” of the writ?⁵⁴ Would that suspension be “unthinkable”?⁵⁵ Scholars continue to debate these questions.⁵⁶
• The text of the Constitution refers to “the privilege of the writ of habeas corpus.” The Supreme Court has recognized that “[t]he suspension of the privilege of the writ of habeas corpus does not suspend the writ itself.”⁵⁷ What is the difference between “the writ” and the “privilege of the writ”?⁵⁸

1. Hamdi v. Rumsfeld, 542 U.S. 507, 555 (2004) (Scalia, J., dissenting). ↩︎
2. 1 Blackstone 135. ↩︎
3. David L. Shapiro, Habeas Corpus, Suspension, and Detention: Another View, 82 Notre Dame L. Rev. 59, 59–60 (2006). ↩︎
4. Amanda L. Tyler, The Forgotten Core Meaning of the Suspension Clause, 125 Harv. L. Rev. 901, 923–28 (2012). ↩︎
5. Id. at 928–30. ↩︎
6. Hamdi, 542 U.S. at 557 (Scalia, J., dissenting) (quoting 1 Blackstone 137). ↩︎
7. Dallin H. Oaks, Habeas Corpus in the States, 32 U. Chi. L. Rev. 243 (1965). ↩︎
8. Tyler, supra at 944–55. ↩︎
9. Id. at 247, 251. ↩︎
10. Id. at 247 (quoting Mass. Const. of 1780, ch. 6, art. VII). ↩︎
11. Id. at 247–48. ↩︎
12. Id. at 248. ↩︎
13. 5 Elliot’s 445; 2 Farrand’s 341. ↩︎
14. 2 Farrand’s 438. ↩︎
15. Id. at 340–41, 438. ↩︎
16. Id. at 438. ↩︎
17. Id. ↩︎
18. Id. ↩︎
19. Id.; Tyler, supra at 969–72. ↩︎
20. 3 Farrand’s 213. ↩︎
21. 2 Farrand’s 438, 576, 596. ↩︎
22. 3 Elliot’s 460. ↩︎
23. Id. at 464. ↩︎
24. Act of 1789, § 14, 1 Stat. 81. ↩︎
25. 8 U.S. (4 Cranch) 75 (1807). ↩︎
26. Tyler, supra at 980–85. ↩︎
27. Ex parte Merryman, 17 F. Cas. 144, 147 (C.C.D. Md. 1861) (No. 9487) (Taney, C.J.). ↩︎
28. Id. ↩︎
29. Id. ↩︎
30. Id. at 147–48. ↩︎
31. Id. at 148–50; Hamdi, 542 U.S. at 562. ↩︎
32. Merryman, 17 F. Cas. at 152. ↩︎
33. Seth Barrett Tillman, Ex Parte Merryman: Myth, History, and Scholarship, 224 Mil. L. Rev. 481 (2016). ↩︎
34. Amanda L. Tyler, Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay 160–67 (2017). ↩︎
35. Proclamation No. 1 (Sept. 24, 1862), 13 Stat. 760. ↩︎
36. Act of Mar. 3, 1863, 12 Stat. 755. ↩︎
37. Id. § 1; Amanda L. Tyler, Suspension as an Emergency Power, 118 Yale L.J. 600, 639–54 (2009). ↩︎
38. Act of Apr. 20, 1871, ch. 22, § 4, 17 Stat. 14; Tyler, supra at 655–62. ↩︎
39. Boumediene v. Bush, 553 U.S. 723, 733–36 (2008). ↩︎
40. 542 U.S. at 519 (citing Ex parte Quirin, 317 U.S. 1 (1942)). ↩︎
41. Id. at 525–26, 536–37. ↩︎
42. Id. at 554. ↩︎
43. Id. at 575. ↩︎
44. 553 U.S. at 771, 795. ↩︎
45. Act of Feb. 5, 1867, ch. 28, § 1, 14 Stat. 385. ↩︎
46. Lewis Mayers, The Habeas Corpus Act of 1867: The Supreme Court as Legal Historian, 33 U. Chi. L. Rev. 31, 34–39 (1965). ↩︎
47. Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441 (1963). ↩︎
48. Ex parte Watkins, 28 U.S. (3 Pet.) 193, 202 (1830); Bator, supra at 466–78; Rex A. Collings, Jr., Habeas Corpus for Convicts—Constitutional Right or Legislative Grace?, 40 Cal. L. Rev. 335, 336–52 (1952). ↩︎
49. Jones v. Hendrix, 599 U.S. 465, 482–85 (2023). ↩︎
50. Pub. L. 104-132, 110 Stat. 1214. ↩︎
51. Jones, 599 U.S. at 482–85; Felker v. Turpin, 518 U.S. 651 (1996). ↩︎
52. Boumediene, 553 U.S. at 774. ↩︎
53. Ex parte Bollman, 8 U.S. 75, 94 (1807). ↩︎
54. INS v. St. Cyr, 533 U.S. 289, 304 n.24 (2001). ↩︎
55. Id. at 339–41 & n.5 (Scalia, J., dissenting). ↩︎
56. Lee Kovarsky, Habeas Privilege Origination and DHS v. Thuraissigiam, 121 Colum. L. Rev. 23, 25–29 (2021); Richard H. Fallon, Jr., The Supreme Court, Habeas Corpus, and the War on Terror, 110 Colum. L. Rev. 352, 378 (2010); Shapiro, supra at 61–65. ↩︎
57. Ex parte Milligan, 71 U.S. (4 Wall.) 2, 130–31 (1866). ↩︎
58. William Baude, The Judgment Power, 96 Geo. L.J. 1807, 1853 n.255 (2008); Seth Barrett Tillman, Merryman Redux: A Response to Professor John Yoo, 22 Chap. L. Rev. 1, 4 n.15 (2019). ↩︎