William & Mary Bill of Rights Journal
The Original Meaning of the Habeas Corpus Suspension Clause, the Right of Natural Liberty, and Executive Discretion
The Habeas Corpus Suspension Clause of Article I, Section 9, is primarily a limit on Congress’s authority to authorize detention by the executive. It is not mainly concerned with the remedial writ of habeas corpus, but rather with the primary right of natural liberty. Suspensions of the privilege of the writ of habeas corpus are statutes that vest very broad discretion in the executive to decide which individuals to hold in custody. Detention of combatants under the law of war need not rest on a valid suspension, whether the combatant is an alien or a citizen of the United States. The Suspension Clause does not affirmatively require that the federal courts have any jurisdiction to issue the writ of habeas corpus, and so does not interfere with Congress’s general control over the jurisdiction of the federal courts. The clause does not impose any limits on congressional authority with respect to the habeas corpus jurisdiction of state courts that would not exist in its absence.
Repository CitationJohn Harrison, The Original Meaning of the Habeas Corpus Suspension Clause, the Right of Natural Liberty, and Executive Discretion, 29 Wm. & Mary Bill Rts. J. 649 (2021), https://scholarship.law.wm.edu/wmborj/vol29/iss3/4
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