Eleanor Finch
The U.S. Constitution allows for the suspension of habeas corpus in extraordinary circumstances, such as rebellion or invasion, where public safety may require it. This is known as the Suspension Clause, which protects the writ of habeas corpus, a legal recourse that allows individuals to challenge the reasons or conditions of their confinement. The Suspension Clause does not establish a right to habeas corpus but prevents Congress from restricting it. Throughout history, the writ of habeas corpus has been suspended four times: during the Civil War, in eleven South Carolina counties during Reconstruction, in two provinces of the Philippines during an insurrection, and in Hawaii after the bombing of Pearl Harbor.
| Characteristics | Values |
|---|---|
| Clause mentioned in the Constitution | Suspension Clause of Article One, Section 9, Clause 2 |
| Circumstances under which suspension is allowed | Rebellion, invasion, or when public safety requires it |
| Who can suspend it | Congress, though President Lincoln did so unilaterally during the Civil War |
| Number of times suspended | 4 |
| Instances of suspension | During the Civil War, in 11 South Carolina counties during Reconstruction, in two provinces of the Philippines during a 1905 insurrection, and in Hawaii after the bombing of Pearl Harbor |
| What it protects | Natural liberty and the writ of habeas corpus |
| What the writ of habeas corpus is | A means by which a prisoner can test the legality of their detention |
| Who can file a petition for a writ of habeas corpus | A person who believes they are being imprisoned illegally |
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What You'll Learn
The Suspension Clause
> "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 imposes a general bar on the suspension of habeas corpus, with exceptions for extraordinary circumstances, such as rebellion or invasion, where public safety is at risk. The writ of habeas corpus has been suspended four times in US history: during the Civil War, in eleven South Carolina counties during Reconstruction, in two provinces of the Philippines during an insurrection in 1905, and in Hawaii after the bombing of Pearl Harbor.
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Habeas Corpus Act of 1867
The Habeas Corpus Act of 1867 was passed on February 5, 1867, and amended the Judiciary Act of 1789. It granted federal courts the power to issue writs of habeas corpus "in all cases where any person may be restrained of their liberty in violation of the constitution, or any treaty or law of the United States".
The Act restored habeas corpus after its suspension by Congress in 1863, allowing anyone arrested after its passage to challenge their detention in federal courts. However, it denied habeas relief to those already in military custody for a military offense or for aiding the Confederacy. The Act also extended habeas corpus to include interpersonal detention, not just official detainment.
The 1867 Act ensured that federal courts could effectively hear cases transferred to them by issuing a writ for habeas corpus cum causa. It also permitted courts to question the truth of the jailer's stated justification for detaining the prisoner, rather than being bound to accept the jailer's word.
The Act was passed in an effort to protect freedpeople and Union supporters in the South, extending the writ to state prisoners claiming that their detention violated a federal right. For the first time, habeas corpus became a post-conviction remedy, as federal courts interpreted the 1867 Act as giving them the power to free individuals tried and convicted by state tribunals. The Supreme Court affirmed this authority in 1886.
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Congress's authority
The Constitution of the United States allows Congress to suspend habeas corpus in certain extraordinary circumstances. The Suspension Clause of Article One, Section 9, Clause 2, states that:
> 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.
The writ of habeas corpus is a means by which a prisoner can test the legality of their detention. A person who believes they are being imprisoned illegally can file a petition asking a judge to issue a writ of habeas corpus. When a prisoner files a petition for a writ of habeas corpus, their custodian must explain why the restraint is lawful. If the explanation does not satisfy the court, it will order the custodian to release the prisoner.
The Suspension Clause does not specify which branch of government has the authority to suspend the privilege of the writ, but most agree that only Congress can do it. Congress has the power to suspend habeas corpus during a rebellion or invasion when public safety is at risk. This clause is a limit on Congress's authority to authorize detention by the executive branch. It is not mainly concerned with the remedial writ of habeas corpus, but rather with the primary right of natural liberty.
The writ of habeas corpus has been suspended four times since the Constitution was ratified: throughout the entire country during the Civil War; in eleven South Carolina counties overrun by the Ku Klux Klan during Reconstruction; in two provinces of the Philippines during a 1905 insurrection; and in Hawaii after the bombing of Pearl Harbor.
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![Lincoln's Suspension of Habeas Corpus as Viewed by Congress. pp.217-283. [pp.5-71]](https://m.media-amazon.com/images/I/51di0BEp0KL._AC_UY218_.jpg)
Lincoln's suspension
The Constitution does allow for the suspension of habeas corpus in specific circumstances. The Suspension Clause of Article One, Section 9, Clause 2, states:
> "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 does not establish a right to habeas corpus but instead prevents Congress from restricting it. The founding generation valued the Great Writ, as they were aware of how English monarchs had abused their power by jailing people indefinitely without charging them.
Abraham Lincoln's suspension of habeas corpus during the Civil War was controversial. In April 1861, with Congress not in session, Lincoln authorized his military commanders to suspend habeas corpus between Washington, D.C., Philadelphia, and later New York City. Lincoln's actions were justified due to the imminent rebellion threatening the existence of the United States. In February 1862, he ordered the release of all political prisoners, except for those aiding the Confederacy, and offered them amnesty for past treason or disloyalty.
In September 1862, following the Battle of Antietam, Lincoln expanded the suspension of habeas corpus, stating:
> "All Rebels and Insurgents, their aiders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to Rebels against the authority of the United States, shall be subject to martial law and liable to trial and punishment by Courts Martial or Military Commission."
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The Constitution's limits
The Constitution of the United States allows for the suspension of habeas corpus in extraordinary circumstances. The Suspension Clause of Article One, Section 9, protects the writ of habeas corpus, a means by which a prisoner can test the legality of their detention. The Clause states that "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".
The writ of habeas corpus was included in the Constitution to protect against abuses of power, such as those experienced under the English monarchy, where people were jailed indefinitely without charge or trial. The Suspension Clause does not establish a right to habeas corpus but prevents Congress from restricting it. The Clause does not specify which branch of government has the authority to suspend the privilege, but it is generally agreed that only Congress can do so.
The writ of habeas corpus has been suspended four times since the Constitution was ratified: during the Civil War, in eleven South Carolina counties during Reconstruction, in two provinces of the Philippines during an insurrection in 1905, and in Hawaii after the bombing of Pearl Harbor.
The Suspension Clause has been interpreted to protect "the writ as it existed in 1789", when the federal judiciary's authority to issue the writ was established. This interpretation has been challenged, and the Supreme Court has ruled that certain acts, such as the Antiterrorism and Effective Death Penalty Act of 1996, do not strip habeas jurisdiction from federal district courts.
In conclusion, the Constitution limits the suspension of habeas corpus to extraordinary circumstances, and the Suspension Clause protects the right of prisoners to challenge the legality of their detention. The interpretation and application of the Clause have evolved over time, and it continues to be a subject of debate and judicial review.
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Frequently asked questions
Habeas corpus is a recourse challenging the reasons or conditions of a person's confinement under the law. A petition for habeas corpus is filed with a court that has jurisdiction over the custodian, and if granted, a writ is issued directing the custodian to bring the confined person before the court for examination into those reasons or conditions.
The Suspension Clause of Article One, Section 9, Clause 2 of the US Constitution states that "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." It prevents Congress from restricting habeas corpus, though it does not expressly establish a right to it.
Habeas corpus has been suspended four times in the US since the Constitution was ratified: throughout the country during the Civil War; in eleven counties in South Carolina to combat the Ku Klux Klan; in two provinces of the Philippines during an insurrection; and in Hawaii after the bombing of Pearl Harbor.
