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.Article I, Section 9, Clause 2
The writ of habeas corpus, or the "Great Writ," is an order by a common-law court to require a person holding a prisoner to demonstrate the legal and jurisdictional basis for continuing to hold the prisoner. If there is no legal basis for detention or incarceration, the court orders the release of the prisoner. In English practice, the writ addressed detentions before trial, not defects that might have occurred during trial, but American practice has greatly expanded its sweep and availability. The scope and meaning of the Habeas Corpus Clause has been controversial since its ratification—this often-heated public debate remains one of the longest running in American history.
The Great Writ was one of the many imports from England, where Sir William Blackstone described it in his Commentaries on the Laws of England as "the glory of the English law." The right of citizens to demand review of their incarceration was an essential protection against government abuse, which, Blackstone noted, "does not always arise from the ill-nature, but sometimes from the mere inattention, of government." The colonial governments agreed, and, despite the Crown's position that habeas was not available in the colonies, writs of habeas corpus (literally, you shall have the body) were issued before the Revolution.
In The Federalist No. 84, Alexander Hamilton stressed the importance of the writ of habeas corpus to protect against "the favorite and most formidable instruments of tyranny." By 1787, several state constitutions already guaranteed habeas corpus, and there was fairly uniform agreement that it would be one of the basic guarantees in the American Republic.
At the Constitutional Convention and the later state ratification conventions, one of the most divisive issues was the failure to ban absolutely any suspension of the writ. Luther Martin argued that the power would be "an engine of oppression" that could be used by the federal government to declare any state opposition to federal law, "however arbitrary and unconstitutional," an act of rebellion. Nonetheless, a general consensus emerged: there could be circumstances where the writ had to be suspended in the most extreme conditions of war or invasion. It is clear from this record that some delegates understood the Habeas Corpus Clause to mean that the Congress could not suspend the authority of state courts (as well as federal courts) in the exercise of the writ except in cases of rebellion or invasion. Some delegates also believed that the state courts could exercise habeas authority to review the custody of federal prisoners. Consistent with this understanding, various state courts did exercise habeas jurisdiction over federal prisoners well into the nineteenth century. State court habeas power over federal prisoners soon lapsed. Chief Justice John Marshall concluded in Ex parte Bollman (1807) that the Judiciary Act of 1789 granted only federal courts the power to issue writs for federal prisoners, and ruled that the Habeas Corpus Clause dealt only with prisoners in federal authority. The Supreme Court has built the modern view of habeas around this interpretation. This included decisions that effectively prevented any state court from exercising habeas authority over a federal prisoner. In 1859, for example, the Taney Court unanimously rejected a state court's claim of habeas authority over federal prisoners in Ableman v. Booth. In 1953, the Supreme Court reaffirmed the authority of the federal courts over state courts in Brown v. Allen. The Court held that the Supremacy Clause of the Constitution dictated that federal courts would hear federal claims raised in state courts, even though state courts could not grant release of federal prisoners.
One of the most obvious ambiguities in the Habeas Corpus Clause is the absence of an affirmative grant of the right to suspend habeas corpus. Written in the negative, the clause only described the conditions under which it could be suspended. While controversial during the ratification debate, it has been generally accepted that a right to suspend the writ is implied in the language. The next ambiguity arises from the fact that the clause does not affirmatively state who can suspend the writ. Originally, Charles Pinckney proposed the clause with the words "shall not be suspended by the Legislature." This reference to Congress was dropped in the later debate, allowing some to argue that either Congress or the President could suspend habeas corpus. However, it is notable that the Committee of Style moved the clause from Article III (dealing with the judicial branch) to Article I (dealing with the legislative branch), suggesting that suspension was viewed as a legislative power. Later, President Abraham Lincoln's unilateral suspension of the writ was met with such political and judicial opposition until he obtained congressional authorization. See Ex parte Merryman (1861).
Another debate focused on the authority of the courts to issue the writ, a power not expressly given in the Constitution. In Bollman, Chief Justice Marshall indicated that it was up to Congress to authorize the writ, though he suggested Congress was under an obligation to do so. He observed that "[a]cting under the immediate influence of [the Habeas Corpus Clause], [Congress] must have felt, with peculiar force, the obligation of providing efficient means by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted."
Since that time, Congress has suspended the writ only three times: South Carolina in 1871 (to deal with the Ku Klux Klan); the Philippines in 1905 (in connection with the local revolt); and Hawaii during World War II. Conversely, beginning in 1789, Congress passed a number of statutes providing habeas relief for a growing category of prisoners. Along the way Congress also statutorily granted federal courts the power to issue writs for the release of state prisoners. Though the first Judiciary Act of 1789 only authorized issuance of the writ for federal prisoners, the writ was made available in federal court to state prisoners through the Habeas Corpus Act of 1867. Ex parte McCardle (1869). Those statutes filled a real need in the federal criminal-justice system, for there was no direct appeal from criminal cases in the federal system until 1875. Thus, in the early years of the Republic, habeas relief was the only means by which the federal courts could review the conviction of a prisoner who had his constitutional rights denied in his criminal trial. In fact, a prisoner could raise a constitutional challenge both at the trial and later through a habeas petition. Recent changes in statutory and case law have served to limit the number of challenges a petitioner can make.
From the time of the Civil War, the Supreme Court continuously expanded the availability of habeas relief. Under the common-law tradition, habeas relief obtained only when the court (or the sheriff or warden) could not show jurisdiction over the prisoner. Federal courts, however, expanded habeas relief to include a broader definition of "custody" than mere arrest, including most defects found at trial. In Brown v. Allen, the Supreme Court dispensed with earlier limitations and accorded habeas relief to any person held in violation of the Constitution.
Federal habeas power reached its high-water mark in 1963. In three cases dealing with habeas petitions, the Supreme Court directed lower federal courts to hold evidentiary hearings, allowed for successive claims on the same facts, and held that a prisoner is entitled to lodge a habeas petition, even if he failed state law requirements to raise his substantive objectives in a timely manner during trial. Sanders v. United States (1963); Townsend v. Sain (1963); Fay v. Noia (1963).
Subsequently, however, both Congress and the Supreme Court have narrowed the availability of criminal appeals and habeas relief and reversed some of the previous holdings. In cases such as Stone v. Powell (1976), the Supreme Court deferred to state courts in the adjudication of certain claims so long as the claims were properly considered in the state system. The next year, in Wainwright v. Sykes (1977), Justice William H. Rehnquist emphasized that habeas corpus was a form of equitable relief that courts have the power to expand or contract as is needed. These and later cases have resulted in a shift back to the state courts as the primary guarantors of constitutional protections and due process. The Antiterrorism and Effective Death Penalty Act of 1996, among other things, placed curbs on the filing of successive and frivolous petitions, and required federal courts to presume that state court factual determinations are correct. Although there remains significantly less authority for state courts than envisioned in the eighteenth century, this judicial and legislative shift represents a significant enhancement of the state court authority over state prisoners.
With new national security measures following the attacks of September 11, 2001, the legal protections of "the Great Writ" persist. Congress must declare any suspension of the writ by statute, which it has not done. Accordingly, the writ is available to civilian and military prisoners claiming jurisdictional barriers to their continued detention or incarceration. Indeed, "the Great Writ" is already at the forefront of the long American debate over the balancing of national security interests and individual liberties.
- Jonathan Turley
- J.B. and Maurice C. Shapiro Professor of Public Interest Law
- Director, Environmental Law Advocacy Center
- Executive Director, Project for Older Prisoners
- The George Washington University Law School