We are in the midst of an uneasy period for liberty, with a President curtailing our liberties while invading Iraq to spread “the freedom agenda.” It is a period both paradoxical and frightening. For those whose country has been invaded? A fiasco leaving law and liberty there both chimeras. For us? Wiretapping without a warrant, refusing citizens entry into the country, denying citizens the writ of habeas corpus—the list is long. The Constitutional terrain we were in has been transformed, its familiar landmarks altered as though by an earthquake.
Of greatest concern is the failure to abide by the Constitution’s requirement that the “privilege of the Writ of Habeas Corpus shall not be suspended.” The writ is a judicial order directing officials holding someone prisoner to bring the prisoner before the court so the court can determine whether the prisoner is being unlawfully held because of a legal or a factual error. The writ requires that a court, an authority independent of those doing the detaining, deem sufficient the reasons for detaining that person.
The writ is thus a bulwark against arbitrary imprisonment. Its suspension allows a government to detain anyone indefinitely, without charging the person with any crime, leaving the person without any recourse—helpless in the face of the government’s power.
We might have thought it a settled matter of law that American citizens may invoke the writ of habeas corpus if detained by federal authorities unless “Rebellion or Invasion” require its suspension for public safety. Yet the matter has become unsettled, and will remain unsettled, even should the Supreme Court decide that the President lacks the authority to deny American citizens the writ. Court decisions contain their conditions, waiting to be exploited, opening new lines of attack even as they settle others.
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President Bush from a news conference the week of August 20, 2006.
It was a factual error that led to Brandon Mayfield, a Portland lawyer, being detained as a material witness for two weeks without being charged. Fingerprints on a bag of detonators found after the Spanish railway attacks were misidentified as his (Eric Lichtblau, “U.S. Will Pay $2 Million to Lawyer Wrongfully Jailed”, New York Times, November 30, 2006).
Alexander Hamilton, John Jay, and James Madison, The Federalist, The Gideon Edition, ed. George W. Carey & James McClellan (Indianapolis, IN: Liberty Fund, 2001), p. 444.
See my “Hard Cases and Natural Law”, in Law, Justice and Culture, Vol. II, ed. Andre-Jean Arnaud & Peter Koller (Stuttgart: Fran Steiner Verlag, 1998), pp. 49–55.
“Hard Cases and Natural Law”, op. cit., pp. 50–52.
As does every legal provision, I would argue, and everything that carries meaning. See in this regard Francis Lieber, Legal and Political Hermeneutics (New York: Legal Classics Library, 1994). Originally published in 1839, I shall assume its basic views in what follows—that anything can be a sign (Lieber, 17), that anything can be a sign of anything (Lieber, 22), that every sign requires interpretation (Lieber, e.g. 23)—and add only that understanding a provision depends upon seeing its function within the structure of a system, argument, or what have you, a requirement that we also understand the point or function of the system.
The phrase “constructing the meaning” itself begs for constructive interpretation. It does not imply that readers may make something mean whatever they wish. Construction is a form of interpretation, neither literal nor extravagant, to use Lieber’s terminology, highly dependent on structural features of the document in question, and subject to objective, and so public, criteria.
John Locke, Two Treatises of Government, ed. Peter Laslett, 2nd ed. (Cambridge: Cambridge University Press, 1967), Book II, Chapter VII, Section 90.
Gordon S. Wood’s The Radicalism of the American Revolution (New York: Vintage reprint, 1993) is particularly helpful in explaining how revolutionary was the idea that citizens are equal under the law.
One of the more unfortunate legacies of Congressman Tom DeLay is the Texas reapportionment case. It had been a settled matter, not of law, but of custom, that states only reexamine congressional districts after the census every ten years. Challenging that custom produced a result with political implications some at least may deplore—an invitation to every legislature to reexamine congressional districts whenever they wish and certainly whenever the majority in the legislature changes parties. What was settled had some unfortunate consequences, but the change has arguably wrought more.
Extravagant construction is “the attempt, by mal-construction, to carry designs into the sphere of the instrument”, abandoning any attempt to construe it, but reconstructing it, as it were, to mean what you want it to mean. Lieber, op. cit., p. 81.
Michael Moss, “Former U.S. Detainee in Iraq Recalls Torment”, New York Times, December 18, 2006.
See in this regard Eric M. Freedman, Habeas Corpus: Rethinking the Great Writ of Liberty (New York: New York University Press, 2001), pp. 2–5, 9–46.
Osama Mustafa Hassan was purportedly seized in Milan in 2003 by agents linked to the CIA (Ian Fisher, Mark Mazzetti, “Italians Indict C.I.A. Operatives in ‘03 Abduction”, New York Times, February 17, 2007).
Ibid.
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Robison, W.L. (2008). The Great Right: Habeas Corpus. In: Reidy, D.A., Riker, W.J. (eds) Coercion and the State. The Philosophical Foundations of Law and Justice, vol 2. Springer, Dordrecht. https://doi.org/10.1007/978-1-4020-6879-9_11
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