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CRS Annotated Constitution

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ARTICLE I
LEGISLATIVE DEPARTMENT

Section 9. Clause 1. The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

POWERS DENIED TO CONGRESS

General Purpose of Section 9

This section of the Constitution (containing eight clauses restricting or prohibiting legislation affecting the importation of slaves, the suspension of the writ of habeas corpus, the enactment of bills of attainder or ex post facto laws, the levying of taxes on exports, the granting of preference to ports of one State over another, the granting of titles of nobility, et cetera) is devoted to restraints upon the power of Congress and of the National Govern[p.345]ment,1683 and in no respect affects the States in the regulation of their domestic affairs.1684

The above clause, which sanctioned the importation of slaves by the States for twenty years after the adoption of the Constitution, when considered with the section requiring escaped slaves to be returned to their masters, Art. IV, Sec. 1, cl. 3, was held by Chief Justice Taney in Scott v. Sandford,1685 to show conclusively that such persons and their descendants were not embraced within the term “citizen” as used in the Constitution. Today, this ruling is interesting only as an historical curiosity.

Clause 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.

This clause is the only place in the Constitution in which the Great Writ is mentioned, a strange fact in the context of the regard with which the right was held at the time the Constitution was written1686 and stranger in the context of the role the right has come to play in the Supreme Court’s efforts to constitutionalize federal and state criminal procedure.1687

Only the Federal Government and not the States, it has been held obliquely, is limited by the clause.1688 The issue that has always excited critical attention is the authority in which the clause places the power to determine whether the circumstances warrant suspension of the privilege of the Writ.1689 The clause itself does[p.346]not specify, and while most of the clauses of 9 are directed at Congress not all of them are.1690 At the Convention, the first proposal of a suspending authority expressly vested “in the legislature” the suspending power,1691 but the author of this proposal did not retain this language when the matter was taken up,1692 the present language then being adopted.1693 Nevertheless, Congress’ power to suspend was assumed in early commentary1694 and stated in dictum by the Court.1695 President Lincoln suspended the privilege on his own motion in the early Civil War period,1696 but this met with such opposition1697 that he sought and received congressional authorization.1698 Three other suspensions were subsequently ordered on the basis of more or less express authorizations from Congress.1699

When suspension operates, what is suspended? In Ex parte Milligan,1700 the Court asserted that the Writ is not suspended but only the privilege, so that the Writ would issue and the issuing court on its return would determine whether the person applying can proceed, thereby passing on the constitutionality of the suspension and whether the petitioner is within the terms of the suspension.


Footnotes

1683 Barron v. Baltimore, 7 Pet. (32 U.S.) 243 (1833); Morgan v. Louisiana, 118 U.S. 455, 467 (1886).
1684 Munn v. Illinois, 94 U.S. 113, 135 (1877); Johnson v. Chicago & Pacific Elevator Co., 119 U.S. 388, 400 (1886).
1685 19 How. (60 U.S.) 393, 411 (1857).
1686 R. Walker, The American Reception of the Writ of Liberty (Norman, Okla.: 1961).
1687 Infra, discussion under Article III.
1688 Gasquet v. Lapeyre, 242 U.S. 367, 369 (1917).
1689 In form, of course, clause 2 is a limitation of power, not a grant of power, and is in addition placed in a section of limitations. It might be argued, therefore, that the power to suspend lies elsewhere and that this clause limits that authority. This argument is opposed by the little authority there is on the subject. 3 M. Farrand, The Records of the Federal Convention of 1787 (New Haven: 1937), 213 (Luther Martin); Ex parte Merryman, 17Fed. Cas.144,148 (No.9487), (C.C.D. Md. 1861); but cf. 3 J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Washington: 2d ed. 1836), 464 (Edmund Randolph). At the Convention, Gouverneur Morris proposed the language of the present clause: the first section of the clause, down to “unless” was adopted unanimously, but the second part, qualifying the prohibition on suspension was adopted over the opposition of three States. 2 M. Farrand, op. cit., 438. It would hardly have been meaningful for those States opposing any power to suspend to vote against this language if the power to suspend were conferred elsewhere.
1690 Cf. Clauses 7, 8.
1691 2 M. Farrand, The Records of the Federal Convention of 1787 (New Haven: rev. ed. 1937), 341.
1692 Id., 438.
1693 Ibid.
1694 3 J. Story, Commentaries on the Constitution of the United States (Boston: 1833), 1336.
1695 Ex parte Bollman, 4 Cr. (8 U.S.) 75, 101 (1807).
1696 Cf. J. Randall, Constitutional Problems Under Lincoln (Urbana: rev. ed. 1951), 118–139.
1697 Including a finding by Chief Justice Taney on circuit that the President’s action was invalid. Ex parte Merryman, 17Fed. Cas.144 (No.9487) (C.C.D. Md. 1861).
1698 Act of March 3, 1863, 1, 12 Stat. 755 . See Sellery, Lincoln’s Suspension of Habeas Corpus as Viewed by Congress, 1 U. Wis. History Bull. 213 (1907).
1699 The privilege of the Writ was suspended in nine counties in South Carolina in order to combat the Ku Klux Klan, pursuant to Act of April 20, 1871, 4, 17 Stat. 14 . It was suspended in the Philippines in 1905, pursuant to the Act of July 1, 1902, 5, 32 Stat. 692 . Cf. Fisher v. Baker, 203 U.S. 174 (1906). Finally, it was suspended in Hawaii during World War II, pursuant to a section of the Hawaiian Organic Act, 67, 31 Stat. 153 (1900). Cf. Duncan v. Kahanamoku, 327 U.S. 304 (1946). For the problem of de facto suspension through manipulation of the jurisdiction of the federal courts, see infra, discussion under Article III.
1700 4 Wall. (71 U.S.) 2, 130–131 (1866).
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