A brief history of habeas corpus
Note from Bill Palmer: While I’m dealing with a personal matter today, please enjoy this thoughtful column from Robert Harrington:
I don’t ordinarily like to begin an article with an assertion that White House Deputy Chief of Staff Stephen Miller was right about something. However, when he referred to habeas corpus as a “privilege” and not a “right” he is correct. That this caused a great deal of consternation among people who believe in freedom, and are aware that members of the Trump “administration” do not, is understandable. But, well, he’s right.
Article One, Section 9 of the US Constitution says, “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.” So for once the inadequate little toad Miller (with no insult meant to toads) got it technically right.
Some of you, brothers and sisters, may be wondering what exactly is a habeas corpus, and how can I get me one? Habeas corpus is Latin for “You shall have the body,” or as the Trump administration has recently translated it, “Bring me the head of Alfredo Garcia.” Or maybe “LOL.”
The serious idea behind it is you can’t snatch somebody off the street and put them in a jail cell, or summarily ship them off to another country’s jail cell, or rendition them in another country and leave them there without a thing called Due Process. You are required to present the prisoner before a judge or equally constituted magistrate and show cause in a hearing. At that hearing a judge may determine whether or not the prisoner is being kept lawfully. If they’re not, they are released or “bailed.”
The foundations for habeas corpus are commonly thought to have originated in the Magna Carta of 1215, but in fact it stem from a charter of Henry II, enshrined into law a mere ten miles from where I am sitting as I type this, in the Assize of Clarendon, Wiltshire, of 1166. The charter declares that “No Freeman shall be taken or imprisoned, or be disseized of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land.”
That privilege was later extended to everybody in the Kingdom, not just “Freemen,” by the Magna Carta of 1215, an original copy of which resides in Salisbury Cathedral, a scant 8 miles from where I’m sitting. (I tell you, my friends, England is a great place to live if you love history.)
As already observed, habeas corpus is duly enshrined in the US Constitution, and can only be suspended under extreme conditions of rebellion or invasion. Presidents Abraham Lincoln and Ulysses S Grant suspended habeas corpus during the American Civil War and Reconstruction. Franklin Delano Roosevelt shamefully suspended habeas corpus for Japanese Americans during World War II. Following the September 11 attacks, Bush attempted to place Guantanamo Bay detainees outside of the jurisdiction of habeas corpus, but the Supreme Court stopped him.
As a nation we’ve usually known when suspension of habeas corpus was wrong. Not always, but usually. In the case of FDR, it was applied to the wrong people (the Japanese) for the right reasons (World War II.) Trump and his pirate ship of clowns, goofballs and cartoon villains want to apply it to anyone they feel like, and they’re beginning with immigrants.
We know they are wrong, the problem we face is, how do we prove they are wrong? And more importantly, how do we enforce it? The Constitution is clear that suspension of habeas corpus cannot be done except in times of rebellion or invasion. Occasional unlawful border crossings are neither. It’s like good art, we know it when we see it.
But Trump and company might disagree, as it were, on the definition of good art. Everyone agrees that the Constitution is the law of the land — or at least, everyone used to — but what mechanism is available to enforce that law? Sadly, there isn’t one. Not really. Men and women must agree to enforce it. They must agree that it’s being violated. In the case of the Trump “administration,” it’s becoming increasingly clear that they don’t care about the Constitution one way or another, unless of course it’s to their advantage to do so.
So we are faced with a situation where Trump has effectively suspended habeas corpus for people merely suspected of being unlawfully present in the United States without any mechanism for checking whether or not that is true. He is hoping to one day extend that suspension to anyone who displeases him. If you want to know the definition of dictatorship, that is it, and it has already begun.
Robert Harrington is an American expat living in Britain. He is a portrait painter.