Clause 2

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.

IN GENERAL

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 written1892 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.1893

Only the Federal Government and not the states, it has been held obliquely, is limited by the clause.1894 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.1895 The clause itself does not specify, and although most of the clauses of § 9 are directed at Congress not all of them are.1896 At the Convention, the first proposal of a suspending authority expressly vested “in the legislature” the suspending power,1897 but the author of this proposal did not retain this language when the matter was taken up,1898 the present language then being adopted.1899 Nevertheless, Congress’s power to suspend was assumed in early commentary1900 and stated in dictum by the Court.1901 President Lincoln suspended the privilege on his own motion in the early Civil War period,1902 but this met with such opposition1903 that he sought and received congressional authorization.1904 Three other suspensions were subsequently ordered on the basis of more or less express authorizations from Congress.1905

When suspension operates, what is suspended? In Ex parte Milligan,1906 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.

Restrictions on habeas corpus placed in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) have provided occasion for further analysis of the scope of the Suspension Clause. AEDPA’s restrictions on successive petitions from state prisoners are “well within the compass” of an evolving body of principles restraining “abuse of the writ,” and hence do not amount to a suspension of the writ within the meaning of the Clause.1907 Interpreting IIRIRA so as to avoid what it viewed as a serious constitutional problem, the Court in another case held that Congress had not evidenced clear intent to eliminate federal court habeas corpus jurisdiction to determine whether the Attorney General retained discretionary authority to waive deportation for a limited category of resident aliens who had entered guilty pleas before IIRIRA repealed the waiver authority.1908 “[At] the absolute minimum,” the Court wrote, “the Suspension Clause protects the writ as it existed in 1789. At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest.”1909

Footnotes

1892
R. WALKER, THE AMERICAN RECEPTION OF THE WRIT OF LIBERTY (1961). [Back to text]
1893
See discussion under Article III, Habeas Corpus: Scope of Writ. [Back to text]
1894
Gasquet v. Lapeyre, 242 U.S. 367, 369 (1917). [Back to text]
1895
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. FAR-RAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 213 (Luther Martin ed., 1937); Ex parte Merryman, 17 Fed. 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 464 (Edmund Randolph, 2d ed. 1836). 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. FAR-RAND, 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. [Back to text]
1896
Cf. Clauses 7, 8. [Back to text]
1897
2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 341 (rev. ed. 1937). [Back to text]
1898
Id. at 438. [Back to text]
1899
Id. [Back to text]
1900
3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1336 (1833). [Back to text]
1901
Ex parte Bollman, 8 U.S. (4 Cr.) 75, 101 (1807). [Back to text]
1902
Cf. J. RANDALL, CONSTITUTIONAL PROBLEMS UNDER LINCOLN 118–139 (rev. ed. 1951). [Back to text]
1903
Including a finding by Chief Justice Taney on circuit that the President’s action was invalid. Ex parte Merryman, 17 Fed. Cas. 144 (No. 9487) (C.C.D. Md. 1861). [Back to text]
1904
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). [Back to text]
1905
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, The Theory of Plenary Congressional Control. [Back to text]
1906
71 U.S. (4 Wall.) 2, 130–131 (1866). [Back to text]
1907
Felker v. Turpin, 518 U.S. 651 (1996). [Back to text]
1908
INS v. St. Cyr, 533 U.S. 289 (2001). [Back to text]
1909
533 U.S. at 301 (internal quotation marks and citation omitted). [Back to text]