Tuesday, June 24, 2008

Just how great was the Great Writ?

Everybody is buzzing about the Supreme Court's recent decision in Boumediene v. Bush, 553 U.S. ___ (2008). Here are the Oyez Project's summary and a good example of an article critical of the five to four ruling:


The case involves the guarantee of habeas corpus, also called "the Great Writ," defined as "judicial determination of the legality of an individual's custody" (Gifis, Barron's Law Dictionary, 1996). It's origins have been traced all the way back to the Magna Carta (Corwin, The Constitution and What it Means Today, 1978, p.124). As to it's significance in America, consider this remark by Alexander Hamilton in The Federalist #84:

"The establishment of the writ of habeas corpus, the prohibition of ex-post-facto laws, and of TITLES OF NOBILITY, TO WHICH WE HAVE NO CORRESPONDING PROVISION IN OUR CONSTITUTION, are perhaps greater securities to liberty and republicanism than any it contains."

That's his emphasis; the words "our constitution" refers to the New York State Constitution of Hamilton's era.

Well here is the interesting part. Regardless of the New York Constitution's omission of prohibition of ex post facto laws and titles of nobility, once the federal Constitution was ratified the hands of New York and all other states were tied on these matters. Article 1, Section 10, listing powers denied to the states, declares:

"No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility."

Notice anything missing? Right, habeas corpus. There was nothing requiring states to observe or establish it, and nothing prohibiting them from dispensing with it altogether. So why didn't Hamilton or any of the other framers insist on a habeas corpus clause applicable to the states?

If you look through the debates in the 1787 Constitutional Convention, there isn't really anything to tell why the delegates thought they had to specify no titles of nobility or ex post facto laws at both the federal and state levels, but only mentioned the writ of habeas corpus where the federal government was concerned. At the August 28th session, John Rutledge of South Carolina said he was for was for "declaring the Habeas Corpus inviolable" but he didn't say why if it was inviolable the Constitution shouldn't also prohibit states from suspending it.

Why not? Well, probably the answer comes in this description of Mr. Rutledge in Carol Berkin's 2002 book A Brilliant Solution:

"(Rutledge in the 1760s) began a successful legal career. He made his fortune, however, from his plantations and slaves." (p. 257.)

Having habeas corpus in all cases would, I think, make it a bit more difficult to enforce slave law. While the Thirteenth Amendment ended slavery, it is the Fourteenth Amendment's mandate that states observe due process that essentially insures that habeas corpus is the law of the land for both the federal government and the states (see Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights, 1986, p. 129).

Anyway, when you hear talking heads on television refer to the writ of habeas corpus as "ubiquitous" or "a cornerstone of Anglo-American law since the English Parliament passed the Habeas Corpus Act of 1679," remember, this country had a huge Great Writ loophole for almost its first hundred years. The states could constitutionally ignore it.

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