By Martin H. Redish & Colleen McNamara
Article — Volume 96, Issue 6
Ever since the attacks of September 11, 2001, constitutional scholars have been exploring the controversial issues surrounding the so-called “Emergency Constitution.” One of the very few provisions of the Constitution that explicitly contemplates such emergency situations is Article I, section 9, concerning the writ of habeas corpus. That provision prohibits suspension of the “Great Writ,” except “when in cases of [r]ebellion or [i]nvasion the public [s]afety may require it.”
The writ of habeas corpus has long stood as the primary weapon against the development of tyranny. It enables a court to demand that the executive produce individuals it is detaining and explain the lawful basis for that detention, and to order the detainees’ release if it finds the confinement to be unlawful. Absent the availability of habeas corpus, there would exist no legal means of preventing those in power from arresting any individual they want, for as long as they want, regardless of the legitimacy of the arrest. Yet pursuant to the so-called Suspension Clause, in times of rebellion or invasion the government is authorized to suspend the writ.
Highly respected scholars have recently engaged in an intense debate over the meaning and implications of the Suspension Clause. All of them, however, have seriously missed the mark, because all have assumed the continuing validity of that Clause. In this Article, we argue that the Due Process Clause of the Fifth Amendment effectively repeals the Suspension Clause. We reach this conclusion for two reasons: first, the Suspension Clause indisputably authorizes summary detention without the availability of any form of hearing before a neutral adjudicator. Whatever “due process” means at its outer fringes, there is no doubt that such a practice deprives an individual of liberty without due process of law. Yet the Due Process Clause, on its face, is unlimited in its application; it contemplates no exceptions, when an individual is to be deprived of life, liberty or property. Thus, purely as a matter of textual construction, the Due Process Clause, contained in an amendment, supersedes the Suspension Clause, which appears in the body of the Constitution. Moreover, it is important to recognize that the Suspension Clause authorizes tyrannical practices wholly inconsistent with and undermining of foundational precepts of American Constitutionalism. This concept dictates a governmental commitment to the rule of law and to limited governmental authority over its citizens. The Due Process Clause should be deemed to protect these core values. After establishing the supremacy of the Due Process Clause, the Article carefully explores the manner in which the Due Process Clause should be found to limit coercive governmental authority in times of national crisis.
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Volume 96 / Issue 6
Habeas Corpus, Due Process and the Suspension Clause: A Study in the Foundations of American Constitutionalism
By Martin H. Redish & Colleen McNamara
96 Va. L. Rev. 1361
As someone deeply immersed in constitutional law and the interplay of legal theories, especially regarding the writ of habeas corpus and the Suspension Clause, I can confidently discuss the concepts and arguments presented in Martin H. Redish & Colleen McNamara's article, "Habeas Corpus, Due Process and the Suspension Clause: A Study in the Foundations of American Constitutionalism," published in Volume 96, Issue 6 of the Virginia Law Review in 2013.
The article delves into the pivotal role of the writ of habeas corpus as a safeguard against unjust detention, particularly in times of emergency, post-9/11. It analyzes Article I, Section 9 of the Constitution, which allows the suspension of the writ in cases of rebellion or invasion when public safety necessitates it.
Redish and McNamara critically evaluate the prevailing discourse among constitutional scholars regarding the Suspension Clause. They challenge the conventional interpretations, arguing that the Due Process Clause of the Fifth Amendment effectively overrides the Suspension Clause. Their primary contention rests on the text and implications of the Due Process Clause, positing that it prohibits summary detentions without any form of hearing before a neutral adjudicator.
Furthermore, they emphasize that the Suspension Clause sanctions practices that run counter to foundational principles of American Constitutionalism, specifically the rule of law and limited governmental authority over citizens. They assert that the Due Process Clause should be deemed supreme, protecting these fundamental values even in times of national crisis.
This article seeks to establish the precedence of the Due Process Clause over the Suspension Clause, exploring how the former should curtail coercive governmental authority during emergencies.
The other articles listed in the same issue cover diverse legal subjects, such as "Ex Ante Regulation of Computer Search and Seizure: A Reassessment" by Orin Kerr, "Taxing Punitive Damages" by Dan Markel & Gregg Polsky, and "The Invisible Hand in Legal and Political Theory" by Adrian Vermeule. However, my expertise primarily lies in discussing the specifics of constitutional law, the Suspension Clause, and related arguments presented by Redish and McNamara.
If you seek further details or specific insights from any of these articles or related constitutional law matters, I'd be happy to provide more information.
