Eleanor Finch
The writ of habeas corpus, meaning that you have the body in Latin, is a legal procedure that commands the government to provide a legal reason for holding an individual in detention. Habeas corpus was first introduced at the 1787 Constitutional Convention and was voted on substantively on August 28, 1787. It is mentioned in Article I, Section 9 of the US Constitution, also known as the Suspension Clause, which 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 crucial means by which a prisoner can obtain freedom by challenging the legality of their conviction.
| Characteristics | Values |
|---|---|
| Origin | Habeas corpus originated in 1215, through the 39th clause of the Magna Carta. |
| Meaning | "That you have the body", or "you should have the body". |
| Purpose | To determine if a state's detention of a prisoner is valid, and if the person's imprisonment or detention is lawful. |
| History | Habeas corpus was first introduced at the 1787 Constitutional Convention with a series of propositions by delegate Charles Pinckney. |
| Suspension Clause | Article One, Section 9 of the U.S. Constitution 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." |
| The Suspension Clause does not establish a right to habeas corpus, but prevents Congress from restricting it. | |
| The U.S. Supreme Court has ruled that the Clause protects the writ as it existed in 1789. | |
| Jurisdiction | Federal district courts, the Supreme Court, and all Article III federal judges can issue writs of habeas corpus. |
| Limitations | Habeas corpus does not apply to those held by state governments, only those held by any government entity. |
| Suspensions | Habeas corpus has been suspended four times since the Constitution was ratified: during the Civil War, in South Carolina counties during Reconstruction, in the Philippines in 1905, and in Hawaii after Pearl Harbor. |
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What You'll Learn
Habeas corpus in the US Constitution
The writ of habeas corpus is a legal procedure that commands the government to provide a valid reason for the detention of an individual. The term habeas corpus is derived from Latin, meaning "you should have the body" or "that you have the body". It is used to bring a prisoner or other detainee before the court to determine if their imprisonment or detention is lawful. If the court finds that the detention is unlawful, it can order the release of the detainee.
The right of habeas corpus is deeply rooted in Anglo-American jurisprudence and was first introduced in the English legal system through the 39th clause of the Magna Carta in 1215. The habeas corpus procedure was further developed in England through the Habeas Corpus Act of 1679, which guaranteed prisoners held under the authority of the crown the right to invoke the protection of the judicial process.
In the United States, the writ of habeas corpus was adopted as part of the Bill of Rights. At the 1787 Constitutional Convention, Charles Pinckney, a delegate from South Carolina, introduced habeas corpus with a series of propositions. The US Constitution specifically mentions habeas corpus in the Suspension Clause (Clause 2) of Article One, Section 9. This 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 Suspension Clause does not establish a right to the writ of habeas corpus but instead prevents Congress from restricting it. The US Congress has granted federal district courts, the Supreme Court, and all Article III federal judges the jurisdiction to issue writs of habeas corpus to release prisoners held by any government entity from custody, subject to certain limitations.
The writ of habeas corpus has been an important safeguard against arbitrary imprisonment and has been used to protect the personal liberty of individuals. However, there have been instances where the writ has been suspended, such as during the Civil War and Reconstruction, and in response to national security concerns following the September 11 attacks.
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The Suspension Clause
The interpretation of the Suspension Clause has been a subject of scholarly debate. Some argue that it establishes a right under the federal constitution, while others believe it exists solely to prevent Congress from prohibiting state courts from issuing the writ. A third interpretation suggests that it protects a pre-existing common-law right enforceable by federal judges. The Supreme Court has ruled that the Suspension Clause protects the writ as it existed in 1789, when the Judiciary Act established habeas corpus by statute.
The scope of the Suspension Clause has been further analysed in light of restrictions on habeas corpus in the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). The Court has ruled that these restrictions do not amount to a suspension of the writ within the meaning of the Clause. In Thuraissigiam, the Court considered the original meaning of the writ of habeas corpus and concluded that it "provided a means of contesting the lawfulness of restraint and securing release."
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Habeas corpus and the Supreme Court
The right of habeas corpus is a right to be released from imprisonment after an arrest, rather than a right against unlawful arrest. Habeas corpus was first introduced at the 1787 Constitutional Convention with a series of propositions by delegate Charles Pinckney. The Suspension Clause of Article One does not establish a right to the writ of habeas corpus, but it does prevent Congress from restricting it.
The U.S. Congress grants federal district courts, the Supreme Court, and all Article III federal judges jurisdiction under 28 U.S.C. § 2241 to issue writs of habeas corpus to release prisoners held by any government entity from custody, subject to certain limitations. The Supreme Court has recognized that the "writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action".
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) limited the use of the federal writ of habeas corpus by imposing a one-year statute of limitations and increasing the federal judiciary's deference to decisions made in state court proceedings. The Detainee Treatment Act of 2005 (DTA) and the Military Commissions Act of 2006 (MCA) further narrowed the scope of habeas relief, providing that prisoners held in Guantanamo Bay could not access federal courts through habeas corpus.
In 2008, the U.S. Supreme Court expanded the territorial reach of habeas corpus, ruling that the Suspension Clause guaranteed the right to habeas review. This meant that alien detainees designated as enemy combatants and held outside the United States had the constitutional right to habeas corpus. In 2022, the Trump administration's use of the "Alien Enemies Act" to deport Venezuelan men without the opportunity to challenge their detention and removal was met with numerous lawsuits. Judges, including all nine justices on the U.S. Supreme Court, asserted that these men were entitled to due process, including the opportunity to challenge their detention through habeas corpus.
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Habeas corpus in state constitutions
The right of habeas corpus is not a right against unlawful arrest but a right to be released from imprisonment after such an arrest. It was first introduced at the 1787 Constitutional Convention through a series of propositions by Charles Pinckney, a delegate from South Carolina. Habeas corpus was voted on substantively on August 28, 1787, with two votes cast on a motion by Gouverneur Morris, a delegate from Pennsylvania, for the addition of the clause: "The privilege of the writ of Habeas Corpus shall not be suspended, unless where in cases of rebellion or invasion the public safety may require it."
The Suspension Clause of Article One does not establish a right to the writ of habeas corpus but prevents Congress from restricting it. There is debate over whether the Clause establishes a right under the federal constitution, prevents Congress from prohibiting state courts from granting the writ, or protects a pre-existing common law right enforceable by federal judges. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) limited the use of the federal writ by imposing a one-year statute of limitations and increasing deference to state court decisions.
Habeas corpus was first established by statute in the Judiciary Act of 1789. The statutory writ applied only to those in custody under the authority of the United States, committed for trial before a court, or necessary to be brought into court to testify. It did not apply to those held by state governments, which independently afford habeas corpus pursuant to their respective constitutions and laws. From 1789 until 1866, the federal writ of habeas corpus was largely restricted to prisoners in federal custody. Habeas corpus remained the only means for judicial review of federal capital convictions until 1889 and for review of federal convictions for other "infamous crimes" until 1891.
The Supreme Court has recognized that the "writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action." Federal statutes provide federal courts with the authority to grant habeas relief to state prisoners. The Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 narrowed the scope of habeas relief, providing that prisoners held in Guantanamo Bay may not access federal courts through habeas corpus. However, the Supreme Court in Boumediene v. Bush (2008) expanded the territorial reach of habeas corpus, ruling that the Suspension Clause guaranteed the right to habeas review for alien detainees designated as enemy combatants held outside the United States.
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Habeas corpus in other countries
Habeas corpus, a Latin term meaning "you should have the body", is a legal principle that safeguards individuals from unlawful imprisonment. It grants prisoners the right to challenge their imprisonment in a court of law. While the principle is believed to have originated in the Magna Carta of 1215, it predates this and can be traced back to the Assize of Clarendon of 1166 during the reign of Henry II of England. Over the centuries, it has been a cornerstone of the legal system in the UK, US, and other democratic countries.
In South Africa and other countries whose legal systems are based on Roman-Dutch law, the interdictum de homine libero exhibendo is the equivalent of the writ of habeas corpus. Section 35(2)(d) of South Africa's Bill of Rights states that every detained person has the right to challenge the lawfulness of their detention before a court and, if found unlawful, to be released.
In Poland, King Władysław II Jagiełło granted the Privilege of Jedlnia in 1430, proclaiming, "Neminem captivabimus nisi iure victum" ("We will not imprison anyone except if convicted by law"). This gave Polish citizens due process-style rights, originally restricted to the nobility but later extended to cover townsmen in the 1791 Constitution.
In France, safeguards against arbitrary detention are enshrined in the 1789 Declaration of the Rights of Man and of the Citizen and are regulated by the Penal Code. These safeguards are equivalent to those found under the Habeas Corpus provisions in Germany, the United States, and several Commonwealth countries.
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Frequently asked questions
Habeas corpus is mentioned in Article I, Section 9, of the US Constitution, also known as the Suspension Clause.
The Suspension 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." It prevents Congress from restricting habeas corpus.
Habeas corpus was first introduced at the 1787 Constitutional Convention by delegate Charles Pinckney from South Carolina. It was voted on substantively on August 28, 1787. The Judiciary Act of 1789, the first statute passed by Congress, empowered federal courts to "grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment."
Habeas corpus is a legal procedure that commands the government to provide a legal reason for holding an individual in detention. It is a means by which a prisoner can test the legality of their detention.
Yes, 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.
