The Habeas Corpus Suspension Clause and the Right of Natural Liberty

45 Pages Posted: 28 May 2011  

John C. Harrison

University of Virginia School of Law

Date Written: May 25, 2011

Abstract

Important recent scholarship shows that the Habeas Corpus Suspension Clause is aimed mainly at substantive legislation that authorizes confinement by the executive that otherwise would be unlawful. Thus a grant of detention authority that leaves the judicial habeas corpus remedy intact can constitute a suspension subject to the clause. This article emphasizes that at the time of the framing the central example of a suspension of the writ was a grant of extremely broad discretion to the executive to confine people the executive believed to be dangerous. It maintains that broad executive discretion to confine is a necessary condition for a grant of detention authority to qualify as a suspension. Therefore legislative authorization of executive detention for reasons of national security is not a suspension as long as the executive’s discretion is substantially bounded; for example, the confinement of enemy aliens during war does not require suspension of the writ. That is true whether the persons to be detained are citizens or aliens. Congressional grants of legally determinate national security detention authority are thus not limited to cases of rebellion and invasion by the Suspension Clause, because they are not suspensions, and may be applied to citizens and aliens alike.

Keywords: habeas corpus, suspension of habeas corpus, detention

Suggested Citation

Harrison, John C., The Habeas Corpus Suspension Clause and the Right of Natural Liberty (May 25, 2011). Available at SSRN: https://ssrn.com/abstract=1852745 or http://dx.doi.org/10.2139/ssrn.1852745

John C. Harrison (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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