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Constitution Monday: No Nobles and No Indefinite Detentions

Note: Throughout this series, items that are hyperlinked were in the Constitution as written in 1787 but have since been amended or superseded.

Article I of the Constitution of the United States established the Legislative Branch, known as Congress. Here is Article I, Section IX:

Section. 9.

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.

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.

No Bill of Attainder or ex post facto Law shall be passed.

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

The part about the Privilege of the Writ of Habeas Corpus needs a little explaining, especially since it’s been bent these days. Before any explanation is attempted, I want to point out that this “Writ of Habeas Corpus” isn’t merely for citizens or the Framers would have said so. Were the Constitution strictly upheld, the Writ is for everyone.

So what is the “Privilege of the Writ of Habeas Corpus”?

Here is a two paragraph explanation from the Yale-New Haven Teachers Institute:

The Constitution of the United States was written in 1787 and specifically referred to the writ of habeas corpus as a fundamental legal underpinning of the new nation. The thirteen original states ratified the Constitution and then it was amended in 1791 by the Bill of Rights. The request for the issuance of a writ of habeas corpus is made before a judge and, if granted, a prisoner must be brought before the judge. The writ requires whoever is holding the prisoner to produce him before the judge at a time determined by the judge. The writ of habeas corpus was the “mechanism” for the founders to encourage the separation of powers and maintain the balance between them because it was the ultimate protector of the rights of any individual threatened with unlawful imprisonment or detention. The courts had the legal authority to require the imprisoning governmental body to bring the accused to court and if the prisoner was not produced then the people who authorized the imprisonment were to be held in contempt of court. The founders understood that the law and not the government should be the ultimate determinant of our democracy and that the rights of its people had to be the law’s focus.

The writ of habeas corpus came from the legal traditions of English common law and it survived because it represented the struggle of the individual against the excess of governmental abuse. It directly addressed the inequality of power between a citizen and the government and it is the basis of this curriculum unit. It is an excellent beginning to the study of the origins of the government of the United States and it is a key legal concept to follow through the history of America. The curriculum unit will focus on the effects of war in the maintenance of this basic right, particularly the American Civil War. Abraham Lincoln did not hesitate to suspend the writ of habeas corpus when he believed that the Union was threatened and his actions will be the primary focus of the unit. There will be some significant time spent in the origins of the writ itself and what it means and the curriculum will also link Lincoln’s struggles with Chief Justice Taney and the Supreme Court with the very recent developments in the legal history of habeas corpus in the Supreme Court’s decision of the legal case, Boumediene v. Bush.

The site I’m quoting from has more material on the Writ and on the extremely rare and dire circumstances where it may be legitimately suspended.

But in short it is intended to prevent unlawful detentions, such as a President of either party deciding that you are an unlawful combatant because you either attended a mosque 20 years ago with a radical or are a member of the League of the South and have 300 rifles in your home and thus are forever beyond the reach of the courts.

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