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Article Excerpt
ARTICLE CONTENTS
INTRODUCTION I. DEBATING WHAT IT MEANS TO SUSPEND THE PRIVILEGE II. THE CONCEPTION OF SUSPENSION AT THE FOUNDING A. The English Origins of the Great Writ and the Suspension Power B. Pre-Convention American Suspensions C. The Suspension Clause in the Constitutional Convention and Ratification Debates D. The Suspension Proposed in Response to the Burr Conspiracy III. THE CIVIL WAR AND RECONSTRUCTION: INVOKING THE "MOST EXTRAORDINARY POWER" A. The First Suspension Under the U.S. Constitution: Suspending the Writ During the Civil War 1. The 1863 Act 2. Post-Script: Executive Action Pursuant to the 1863 Act and the Act's Amending Legislation B. Suspension During Reconstruction: Putting Down the Klan in South Carolina IV. UNDERSTANDING SUSPENSION AS AN EMERGENCY POWER A. Reading the Suspension Clause in Context B. Giving Meaning to the Suspension Power C. Mapping the Suspension Clause Within the Constitution V. SUSPENSION AND THE SEPARATION OF POWERS CONCLUSION
[A] suspension of the writ.., is just about the most stupendously significant act that the Congress of the United States can take[.] (1)
INTRODUCTION
Justice Jackson famously observed that the Suspension Clause (2) is the Constitution's only "express provision for exercise of extraordinary authority because of a crisis." (3) Historically speaking, the suspension power, though rarely invoked, has been both appreciated and wielded as an emergency power of tremendous consequence for addressing the breakdown of law and order and steering our constitutional ship back on course when it falters. Nonetheless, much of what the Suspension Clause protects during times of peace and permits during times of crisis remains shrouded in mystery. Current circumstances--namely, the attacks of September 11, 2001, and the ensuing war on terrorism--have spurred renewed interest in the Suspension Clause and, specifically, what a suspension actually allows the political branches to do in addressing the crisis at hand.
Recent legislation enacted as part of the war on terrorism has led to several important Supreme Court decisions supplying some additional clues as to the Suspension Clause's meaning, (4) including two this past Term, (5) along with important new scholarly commentary. (6) But the meaning of the Suspension Clause and its application to the modern problems posed by the war on terrorism remain largely unsettled. In particular, the connection between the suspension authority and the scope of executive power remains the subject of considerable debate. How much power can a valid suspension vest in the executive to address an emergency? If, for example, Congress had suspended the writ of habeas corpus in the immediate wake of September 11, (7) could that legislation have empowered the executive, consistent with the Constitution, to arrest and detain a broader class of persons than those who would be subject to arrest in the absence of the suspension? That is, would a suspension authorize the executive to arrest and detain individuals on suspicion that they might engage in future acts of terrorism? This is a crucial question. Its resolution not only would inform the current debates over the propriety of what the government has done to date in the war on terrorism in the absence of a suspension, but it also says much about what the government could do in response to a future terrorist attack if Congress were in fact to take the "grave action" of suspending the privilege of the writ of habeas corpus in its aftermath. (8)
Two schools of thought have emerged on this matter. On one view, the Suspension Clause recognizes an extraordinary emergency power, one that does not simply remove a judicial remedy but "suspends" the rights that find meaning and protection in the Great Writ. (9) It follows from this account that there can be no objection "under the Constitution or any other provision of our law, to the lawfulness of a detention pursuant to a valid suspension of the habeas remedy." (10) Instead, "the very purpose of suspension is to permit Congress to override core due process safeguards during times of crisis. In effect, suspension operates as an 'on/off' switch for this due process right and possibly other portions of the Constitution as well." (11) A suspension, on this view, lawfully expands executive power to arrest and detain during the emergency, albeit only so much as is necessary to combat effectively the crisis at hand. In short, this view marries the rights protected by the Great Writ with those displaced in the event of a valid suspension.
Another account, which this Article will call the "narrow view" of suspension, sets forth a very different vision of suspension. The narrow view argues that a suspension extinguishes the judicial power to order a prisoner's discharge (12) but accomplishes virtually nothing else. (13) Thus, on this account, a suspension cannot lawfully authorize the executive to arrest or detain any person who could not be arrested and held in the absence of a suspension. (14) Such arrests, even if "authorized" by the express terms of the suspension, remain unlawful and unconstitutional. It follows from this view that an executive officer later may be sued and prosecuted for such illegal arrests, (15) so long as Congress has not separately conferred immunity on the officer for such conduct. (16)
At this point, one might observe that the import of the differing interpretations of the breadth of the suspension authority is nothing more than a debate over the proper default rule governing damages actions targeting arrests made pursuant to a suspension. (17) But there is much more at stake. (18) According to the narrow view, because suspension does not constitute authorization, the executive, in honoring his oath to uphold the Constitution, may not arrest anyone during a suspension who could not lawfully be arrested in the absence of suspension. (19) If this proposition is correct, then the traditional narrative that the "suspension of this writ is a most extraordinary power" (20) is much overstated? (21)
This Article contends that the narrow view is overwhelmingly at odds with the historical understanding of suspension in this country and is both theoretically untenable and functionally undesirable as a matter of constitutional interpretation. Part I offers general background on the debate over what it means to suspend the privilege of the writ of habeas corpus. Parts II and III demonstrate by a careful march through the historical evidence that the consistent understanding of suspension in this country has been one that comprehends a proper exercise of the power as expanding executive power while "suspending" those rights that find protection and meaning in the Great Writ. As this survey shows, although our tradition views imprisonment without due process of law as anathema, in the vein of William Blackstone, it nonetheless recognizes that "sometimes, when the state is in real danger, even this may be a necessary measure." (22) As Blackstone counseled, in a situation of "extreme emergency," a suspension of the privilege of the writ of habeas corpus calls on the nation to "part[] with its liberty for a while, in order to preserve it forever." (23) In short, suspension has never been viewed as "the mere removal of a particular remedy." (24)
Part IV, in turn, contends that the text and framing of the Suspension Clause also support a broader conception of the suspension power. As is well known, the Framers "understood that individual rights begin where federal power ends." (25) Their recognition of a legislative power to suspend the privilege of the writ, more than any other provision in the Constitution, underscores this lesson. Further, the whole point of a suspension is to expand the powers of the political branches so that they may address effectively the emergency at hand. Taking into account the extraordinary circumstances in which a valid suspension may be declared reveals how, by that act, Congress lawfully may authorize the executive to engage in some measure of preventive detention. By contrast, adopting the narrow view of suspension would lead a suspension (to borrow from the author of the Civil War suspension legislation) to "mean very little or nothing at all" (26) and certainly not to constitute anything resembling an emergency power.
Finally, Part V situates suspension within our constitutional structure and argues that because it represents a dramatic departure from the twin principles of government accountability and protection of individual liberty, it is imperative that exercises of the suspension power be closely guarded and carefully checked. This means, among other things, that Congress must play an active role in determining whether a suspension is the appropriate response to an existing crisis. Put another way, the executive should not be permitted to declare a suspension unilaterally. Likewise, as I have argued in prior work, it is precisely because of the dramatic effects of a suspension on individual liberty that a decision by the political branches to invoke the authority should not be understood as categorically immune from judicial review. To permit the political branches to decide for themselves the constitutionality of their decision to suspend the privilege would, in effect, convert the most fundamental of individual liberties into nonjusticiable political questions. (27)
In the end, I hope to convince the reader of two points. First, the suspension power is a truly stupendous emergency power, one that can lead to the displacement of those rights enshrined in the Great Writ for the purpose of enabling the political branches effectively to steer the country through the crisis at hand. Second, this recognition underscores all the more why a decision to suspend the privilege cannot reside in one branch alone and why suspension should be viewed truly as a last resort measure. The genius in the Framers' constitutional design is demonstrated more here than anywhere--the structural protections built into the separation of powers largely ensure that this extraordinary emergency power will only be invoked during the most dire of national emergencies.
I. DEBATING WHAT IT MEANS TO SUSPEND THE PRIVILEGE
Article I, Section 9, Clause 2 of the Constitution provides, "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." (28) The Supreme Court has offered authoritative interpretations of the Suspension Clause only a handful of times, and (not coincidentally) scholars have much debated its meaning. We have come this far with much of the Clause's meaning shrouded in mystery because exercises in suspension have been few in number and limited in duration.
By its terms, the Suspension Clause constitutes both a limitation upon and recognition of congressional power. Thus, as an initial matter, the Clause restricts when the "privilege of the writ of habeas corpus" may be suspended to those situations "when in Cases of Rebellion or Invasion the public Safety may require it." (29) In so doing, the Clause arguably promises that a core writ will stand inviolate in the normal course of events. To be sure, the Suspension Clause does not expressly create a right to habeas review. Accordingly, there are those who argue that the Clause promises only that whatever habeas right is given by the grace of the legislature may not be suspended temporarily except in cases of rebellion or invasion. (30) A different view, and one to which I have subscribed previously, posits that the Suspension Clause constitutes not only a limitation on Congress but also an implicit obligation on that body to ensure some measure of jurisdiction in the courts to award the core habeas remedy. (31) The Supreme Court's recent decision in Boumediene v. Bush appears to have embraced this view, for there a majority concluded that the Suspension Clause "ensures that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the 'delicate balance of governance' that is itself the surest safeguard of liberty." (32)
At the same time, the Suspension Clause recognizes the authority of the general government to suspend the "privilege of the writ of habeas corpus" in narrow and specific circumstances. This Article is concerned with the ramifications--both with respect to executive power and individual rights--that follow when this step is taken.
Two views on this question have surfaced in the legal scholarship. On one view, which draws upon the "natural understanding of those who framed the Suspension Clause and of the kinds of conditions likely to exist when its use is warranted," the suspension authority represents an emergency power of considerable consequence. (33) Because the Framers likely equated "the right to be free from unlawful detention with the role of habeas corpus in guaranteeing that right," (34) it follows that the suspension of habeas corpus "suspends" (or "shuts off") for a time those rights that find protection and meaning in the Great Writ. (35) Accordingly, a suspension "frees the Executive from the legal restraints on detention that would otherwise apply." (36) Indeed, "[t]his is what makes suspension the emergency provision that it is." (37) Thus, on this account, the purpose and "immediate effect of a suspension is the facilitation of detaining individuals during times of crisis." (38) It follows that allowing substitute remedies (such as damages actions) for arrests made by the executive within the scope of a valid suspension would undercut "the underlying premise of the legislative decision" to suspend by, among other things, chilling executive officer actions during a period of great emergency. (39)
Recent scholarship suggests an entirely different account of suspension, one that views it as exclusively accomplishing the removal of the judicial remedy of discharge and nothing more. (40) On this view, a suspension does not abrogate any underlying individual rights, nor does it "authorize any executive action that was not already permitted." (41) The work of Trevor Morrison most fully elaborates this narrow view of suspension, though he finds support for his position from various notable commentators. (42) Building on their work, Morrison rejects what he terms the "suspension-as-authorization" model as "both formally untenable and functionally undesirable." (43)
Instead, on the narrow view, because a suspension does not alter the underlying legal order, one detained within the scope of a valid suspension retains a right to sue for damages to the extent that the detention would not have been legal in the absence of a suspension, and an officer malting such an arrest may also be subject to criminal prosecution. (44) This is because, in such a case, the detention was simply unlawful and unconstitutional. (45) In his most recent work defending the narrow view, Morrison elaborates that Congress possesses "considerable leeway" to grant officers immunity in such cases. (46) He also contends that the narrow view is historically grounded. In particular, Morrison points to English practice in the sixteenth and seventeenth centuries, during which time, as Morrison understands it, Parliament commonly paired indemnity legislation with suspension acts. (47) Specifically, like A.V. Dicey before him, Morrison points to an 180l indemnity act, which followed 1794 suspension legislation. (48) This example, we are told, demonstrates that the English did not equate suspension legislation itself with authorization to arrest a broader category of persons than would otherwise be permissible. (49) Without clear evidence suggesting that the Framers "changed the meaning of suspension" from this understanding-evidence that Morrison asserts does not exist-he contends that they surely held the same view of suspension, (50) Morrison finds further support for the narrow view in comments made by members of Congress during suspension debates in the Jefferson Administration (51) and Civil War period, (52)
Finally, the narrow view contends that because a suspension does not abrogate any underlying individual rights, the executive must, consistent with the obligation to honor the Constitution, make no arrests during a period of suspension that he could not make in the absence of a suspension. (53) This obligation seemingly follows regardless of the existence of congressionally conferred officer immunity for such arrests. To ensure that such arrests are not made, the narrow view argues that the executive must implement procedural safeguards or the "core facets of due process"--what this Article will call "executive due process"--in order to internalize something approaching the standards that have been established in habeas review, (54) All the same, Morrison defends this view as still making the decision to suspend significant insofar as it frees the executive from the burden of litigation in the courts with respect to those lawfully held during the suspension and enables the executive to shield for a time from the public any sensitive information that provides the basis for those arrests and detentions undertaken. (55)
The elaboration of the narrow view of suspension in Morrison's recent work provides a welcome expansion of the terms of the debate over the impact of a valid suspension on executive authority and individual rights. And if, as the narrow view suggests, a suspension constitutes nothing more than "the mere removal of a particular remedy," (56) then it is surely correct that an executive who takes his oath seriously should not order during a period of suspension any arrest that Congress could not authorize via ordinary legislation. It likewise follows that the theoretical availability of damages actions and criminal liability, along with the independent obligation of the executive to honor the Constitution, must stand or fall together. This account of what a suspension accomplishes in the first instance, however, is both inaccurate as a matter of history and unsound as a matter of constitutional interpretation. In exploring the matter, this Article seeks to convince a broad audience-those who look to history (whether as a general matter, (57) or with a particular focus on the "original" Founding-era history or subsequent historical "moments," which in the case of suspension came during and immediately after the Civil War (58)), as well as those who are persuaded by textual, structural, and functional arguments. On each and every score, the conclusion is the same: a valid suspension can expand the scope of executive power and, at the same time, wield dramatic effects on fundamental liberty interests. It is for this reason that such exercises must be closely guarded and carefully checked in order to ensure that existing circumstances truly justify such extraordinary legislation.
II. THE CONCEPTION OF SUSPENSION AT THE FOUNDING
History provides considerable guidance on the debates waged today over the meaning of the Suspension Clause, particularly on the question of whether a suspension constitutionally may expand the scope of executive power to arrest and detain in times of true emergency. To appreciate fully what the Framers sought to achieve by recognizing a power to suspend, one must first explore the English and colonial background against which they drafted the Suspension Clause and then consider both the Convention and the ratification debates. Confirmation of the picture of suspension that one draws from these sources is found in the first congressional debates over a proposal to suspend the writ during the Burr Conspiracy. These sources demonstrate the Founding generation's belief that a valid suspension could, by its own terms, vest the executive with the discretion to arrest and detain free of the legal constraints that govern in the absence of a suspension. Put another way, the historical evidence reveals that the Framers fully appreciated that the rights finding protection and meaning in the Great Writ and an act of suspension were, as David Shapiro has said, "two sides of the same coin." (59) Indeed, this fact explains why there was a passionate debate over whether to recognize any power to suspend in the new Constitution and also explains why the Framers provided that a suspension could only be declared in the most dire of national emergencies.
A. The English Origins of the Great Writ and the Suspension Power
"[The] Great Writ achieved its celebrity in the constitutional struggles of the seventeenth century as a remedy against political arrests by the King's council and ministers." (60) At its traditional core, the "writ afforded a powerful guarantee that individuals would not be detained on executive flat instead of legally recognized grounds." (61) Thus, over time, the Great Writ came to be understood as tied closely to the Great Charter's guarantee that one may be detained only in accordance with the rule of law. (62) This link was highlighted by both Blackstone and Sir Edward Coke--two authors whose works were by far the most influential English sources to which the Framers turned in shaping American law. (63) Indeed, numerous citations to Blackstone may be found in the records of the Constitutional Convention, The Federalist Papers, and the records of the states' ratifying conventions. (64)
In his Commentaries on the Laws of England, Blackstone famously referred to the Great Writ as a "second magna carta" and held it out as a "bulwark of our liberties" and the embodiment of the "natural inherent right" of the "personal liberty of the subject." (65) Coke, in his Institutes of the Law of England, asked, "Now it may be demanded, if a man be taken, or committed to prison contra legem terrae, against the Law of the land, what remedy hath the party grieved?" (66) To this, he answered, "He may have an habeas corpus...." (67)
Accordingly, as the Great Writ evolved, it embodied the right to be free from arbitrary or unlawful detention. (68) One need look no further than Alexander Hamilton's writings in The Federalist Papers as evidence of this point. In The Federalist No. 84, Hamilton not only relied heavily on Blackstone, but he also went on to celebrate "the establishment of the writ of habeas corpus" as the primary means of protection against "the practice of arbitrary imprisonments." (69) Indeed, that the writ would be made available under the new Constitution made it unnecessary, in Hamilton's view, to include explicit recognition of additional individual liberty safeguards in the Constitution like those later enumerated in the Bill of Rights. (70)
For his part, Morrison contends that in the period leading up to the Constitutional Convention, the English did not view a suspension as displacing the privileges that had come to be associated with the Great Writ. Specifically, he argues that the English did not equate suspension with expansion of executive power; rather, he suggests that the English looked to subsequent indemnity acts as the separate means by which officers were cloaked with immunity for making what he terms "illegal" arrests. (71) (Recall, "illegal" arrests, on this view, constitute arrests that could not have been made in the absence of a suspension, even though they may have been authorized by the express terms of the suspension.) There are, however, several problems with this claim. As an initial matter, one must be careful about drawing analogies between parliamentary practice and Congress's powers, given the stark structural differences between the English and American constitutional contexts. Parliament's power to suspend the writ and authorize detention in ordinary legislation was checked only by custom and legislative discretion. (72) Further, until the Glorious Revolution in 1688, the Crown "assert[ed] some inherent lawmaking authority independent of Parliament" and exercised authority over the judiciary. (73) In this country, the Framers both deliberately rejected the English model that blended, rather than separated, governmental powers, and they adopted a binding Constitution. (74) Finally, by contrast to England, here "the availability of the writ is constitutionally guaranteed, subject only to narrow and explicit exceptions." (75)
More importantly, regardless of what may have later taken hold, by the time of the 1787 Convention, it cannot be claimed that there existed a settled English view that suspension acts alone were insufficient to authorize an expanded range of arrests by the executive. During the seventeenth and eighteenth centuries, every suspension by its express terms "impowered" (76) the executive to arrest and detain certain classes of persons. Numerous parliamentary suspensions enacted during this period, moreover, were never followed by any indemnity legislation. (77) (This list includes the suspension made applicable to the colonies during the Revolutionary War, discussed further below.) To be sure, there were three occasions during this period on which Parliament enacted indemnity legislation, the application of which overlapped with periods during which Parliament had suspended the writ. (78) These acts, however, indemnified a broad range of officer conduct (including seizures of property), the bulk of which fell well outside the scope of the rather narrow (or, as some have called them, "partial") suspensions that preceded them. Accordingly, it is not at all clear that the focus of the indemnity legislation was somehow to make "legal" arrests made within the limited terms of prior suspension acts; to the contrary, the legislation is likely best understood as directed at other ends. (79) Indeed, no indemnity legislation ever referenced explicitly an earlier suspension act until 1801 (80)--well after ratification. There, moreover, Parliament seems to have been concerned principally with the practical burdens imposed by officer suits insofar as it legislated a procedural device to eliminate efficiently lawsuits challenging actions taken in pursuance of the suspension. (81)
Further, the two primary influences on the Framers regarding the English conception of suspension reinforce the conclusion that the Founding generation viewed the protections embodied in the Great Writ and the effects of a suspension as mirror opposites. First, the Framers had been subjected to a suspension during the Revolutionary War that by its terms authorized the detention of persons merely suspected of high treason. (82) This suspension, first put in place in 1777 and renewed on a year-by-year basis through 1783, (83) applied in the colonies, on the high seas, and to those engaged in piracy. It authorized the detention, "without bail or mainprize" of those persons who "have been, or shall hereafter be seised or taken in the act of high treason ... or who are or shall be charged with or suspected of the crime of high treason... and who have been, or shall be committed ... for such crimes ... or for suspicion of such crimes." (84) The Act likewise precluded judicial review absent case-specific intervention by the Privy Council. (85) The Act did not include any indemnity legislation, nor was any later forthcoming. (86) There was, in short, no indication that the authorization in the Suspension Act itself was insufficient justification for those arrests made within its scope.
Second, as already noted, the Framers were heavily steeped in Coke's Institutes and Blackstone's Commentaries, and each provided the primary window through which the Founding generation studied English law. (87) Coke did not explore the matter of suspension in any detail; Blackstone, however, did.
In passages well known to the Founding generation, Blackstone described the Great Writ as "the most celebrated writ in English law" (88) and as the "bulwark of the British Constitution." (89) He also specifically explored the connection between the Great Writ and suspension. Individual liberty, Blackstone wrote, "cannot ever be abridged at the mere discretion of the magistrate" and "without sufficient cause." (90) And, as Blackstone also emphasized throughout the Commentaries, the means by which such rights are given life and activity was the writ of habeas corpus. As he noted,
[I]f any person be restrained of his liberty ... he shall, upon demand of his coun[sel], have a writ of habeas corpus.... And by ... the habeas corpus act, the methods of obtaining this writ are so plainly pointed out and enforced, that, so long as this statute remains unimpeached, no subject of England can be long detained in prison, except in those cases in which the law requires and justifies such detainer. (91)
From here, Blackstone continued in a passage that was "well known to the Founders" (92) both to reiterate the importance of individual liberty in the English tradition and to describe the circumstances in which the law may nonetheless permit vesting in the executive discretionary control over that liberty:
Of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper ... there would soon be an end of all other rights and immunities.... To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom: but confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government. And yet sometimes, when the state is in real danger, even this may be a necessary measure. But the happiness of our constitution is, that it is not left to the executive power to determine when the danger of the state is so great, as to render this measure expedient: for it is the parliament only, or legislative power, that, whenever it sees proper, can authorize the crown, by suspending the habeas corpus act for a short and limited time, to imprison suspected persons without giving any reason for so doing; as the senate of Rome was wont to have recourse to a dictator, a magistrate of absolute authority, when they judged the republic in any imminent danger.... In like manner this experiment ought only to be tried in cases of extreme emergency; and in these the nation parts with its liberty for a while, in order to preserve it forever. (93)
Here, Blackstone established that, although arbitrary imprisonment is anathema to English law, "sometimes, when the state is in real danger, even this may be a necessary measure." (94) That is, in a situation of "extreme emergency," Blackstone counseled, a suspension of habeas corpus calls on the nation to "part[] with its liberty for a while, in order to preserve it forever." (95)
In the similarly influential "America's Blackstone," (96) St. George Tucker linked this passage with the Suspension Clause in the American Constitution. (97) Paired together, these two influential versions of Blackstone very much confirm the Founding generation's understanding that a suspension vested the executive with considerable authority to arrest and "imprison suspected persons without giving any reason for so doing" as a means of addressing an "extreme emergency" and in defense of the constitutional order. To be sure, here Blackstone did not rule out the availability of ex post damages actions per se--although his discussion of false imprisonment actions in Book Three suggests that he did not view them as viable for arrests made during a suspension. (98) Regardless, in this passage, Blackstone unequivocally rejected the notion that a suspension does not expand executive authority to arrest and detain. This conception of what it means to "suspend the privilege," as we will see, has remained constant throughout American history.
B. Pre-Convention American Suspensions
Events in this country also influenced the Framers who drafted the Suspension Clause. For example, at least five states enacted suspension legislation during the Revolutionary War. Such acts generally by their express terms empowered the executive to arrest and detain suspected Crown sympathizers and gave no indication that such authorization was somehow constrained by external sources of law. Thus, for example, in 1777, the Massachusetts legislature empowered the governor and his council to issue warrants for the apprehension and commitment of "any person whom the council shall deem the safety of the Commonwealth requires should be restrained of his personal liberty, or whose enlargement within this state is dangerous thereto." (99) One apprehended on this basis was to be "continued in imprisonment, without bail or mainprise," until discharged by the executive or legislature. (100) Similarly, later in the war, the Virginia legislature enacted a statute providing that
[t]he Governor, with advice of the Council, is ... hereby empowered to apprehend ... and commit[] to close confinement, any persons or persons whatsoever, whom they may have just cause to suspect disaffection to the independence of the United States or of attachment to their enemies, and such person or persons shall not be set at liberty by bail, mainprise or habeas corpus. (101)
By their terms, the Massachusetts and Virginia examples accomplished more than simply removing a judicial remedy--they also "empowered" the executive to arrest and commit an expanded category of persons. At least three other states also enacted suspension legislation during the war. (102)
The most important domestic prologue to the Suspension Clause is found in two Massachusetts suspensions that occurred after the Commonwealth adopted its constitution in 1780. These events are significant for several reasons. To begin, the habeas clause in the Massachusetts Constitution was a prototype for the Suspension Clause. (103) These suspensions, moreover, constituted pre-Convention models of how suspension functioned within a constitutional framework analogous to that which was adopted at the national level. Finally, one of these suspensions was especially important to the Framers.
The Massachusetts Constitution, adopted in 1780, enshrines several individual liberties analogous to those found in the subsequently adopted federal Constitution, and includes along with these express recognition of the privilege of habeas corpus. (104) Upon circulation of the draft Massachusetts Constitution, the Boston delegates expressed general support for it, but had concerns about the habeas clause, which they wished to see bolstered. "With regard to the writ of Habeas Corpus, they wished that its privileges should be more accurately defined and more liberally granted, so that citizens should not be subject to confinement on mere suspicion." (105) These concerns are powerful evidence of a contemporary founding view that equated the writ with the right not to be committed on "mere suspicion." By the same token, those who held this view acknowledged that the right could be suspended in emergencies. Thus, in final form, the habeas clause provided,
The privilege and benefit of the writ of habeas corpus shall be enjoyed in this commonwealth, in the most free, easy, cheap, expeditious, and ample manner; and shall not be suspended by the legislature, except upon the most urgent and pressing occasions, and for a limited time, not exceeding twelve months. (106)
Shortly thereafter, the Massachusetts legislature suspended habeas corpus during the 1782 Ely Riots. (107) Shays's Rebellion followed six years later and proved an important precursor to the Convention that followed immediately in its wake. (108) The rebellion served "as a catalyst in the movement for the Constitution and for its ratification." (109) To many, Shays's Rebellion suggested a need for--indeed, demanded--a much stronger centralized government. Thus, it is reported that George Washington, previously reluctant to participate in the drafting of a new constitution, finally agreed to go to Philadelphia in light of what he had read about the rebellion. (110) The episode is mentioned in no fewer than six of The Federalist Papers and clearly had a profound impact on the Framers. (111)
Shays's Rebellion also offered an example to the Framers of how a suspension operated within the framework of a binding constitution. Significantly, the suspension enacted by the Massachusetts General Court (the legislature) expanded upon the scope of executive power for putting down the rebellion. Specifically, after much debate, and in response to what it deemed a "violent and outrageous opposition ... to the constitutional authority," the General Court "authorized and empowered" the governor and his council, by issuance of their own warrants, "to command and cause to be apprehended, and committed ... any person or persons whatsoever, whom the Governor and Council, shall deem the safety of the Commonwealth requires should be restrained of their personal liberty, or whose enlargement is dangerous thereto; any law, usage or custom to the contrary notwithstanding." (112) At the same time, the act provided that "any person who shall be apprehended and imprisoned, as aforesaid, shall be continued in imprisonment, without bail or mainprize, until he shall be discharged therefrom by order of the Governor, or of the General Court." (113) Just as it had in 2782, the legislature empowered the executive to imprison "all persons" who in his opinion posed a danger to the "safety of the Commonwealth," while explicitly freeing the executive from the restraints of "any Law ... to the contrary." (114)
Notably, as with earlier Massachusetts suspensions, the authorizing legislation did not include any officer immunity provision, nor was any later forthcoming. Yet the legislature was hardly ignorant of how to draft such legislation--far from it. Indeed, only two weeks prior to enacting the suspension, the legislature had enacted the Riot Act, which provided that sheriffs and other officials "shall be indemnified and held guiltless" for killing rioters who did not disperse on orders or who resisted capture. (115) The only plausible explanation for the absence of any indemnity legislation tied to the Shays suspension is that the legislature viewed such legislation as entirely unnecessary notwithstanding the then well-established common law action of false imprisonment. (116)
Contemporary debates over the Shays suspension legislation, moreover, confirm that it was understood to place the liberty of the citizens of Massachusetts in the discretion of the executive. As one period commentator reported, those legislators pushing for a suspension viewed the existing rebellion as a "crisis" such that "every man's liberty should be trusted to the discretion of the Supreme Executive, without legal remedy." (117) As another observed, "the design" of the Act was to "authorize the Governor, with advice of Council, to apprehend and secure" anyone "judged by them to be dangerous to the peace of the State." (118) Under the Act, the Governor quickly employed his expanded powers and issued warrants calling for the arrest of several individuals whom he suspected of inciting the Shays rioters. On his orders, they were arrested, transported to Boston, and detained incommunicado until the following summer. (119) My research has uncovered no damages suits filed by any of these prisoners. Thus, the people of Massachusetts viewed a suspension as placing "every man's liberty" in the "trust[]" and "discretion of the Supreme Executive." (120) As is shown below, the Framers held the very same conception of suspension.
C. The Suspension Clause in the Constitutional Convention and Ratification Debates
The Convention debates over the proposed Suspension Clause were quite limited. All the same, they do offer insight into what the Framers thought was at stake. The decision to recognize a suspension power apparently stemmed from a proposal by Charles Pinckney, who "urg[ed] the propriety of securing the benefit of the Habeas corpus in the most ample manner" while suggesting that "it should not be suspended but on the most urgent occasions, [and] then only for a limited time not exceeding twelve months." (121) Pinckney's proposal bore many similarities to Massachusetts's habeas provision, (122) and commentators, accordingly, have observed that the latter proved the model for Pinckney's proposal. (123)
Pinckney's proposal is interesting because it both recognized the need for a suspension power and deemed it important to secure expressly the privilege of habeas corpus. When the matter emerged from the Committee of Detail, limited additional debate ensued. Madison's notes report that John Rutledge "was for declaring the Habeas Corpus inviolable--He did not conceive that a suspension could ever be necessary at the same time through all the States." (124) James Wilson, in turn, "doubted whether in any case a suspension could be necessary, as the discretion now exists with Judges, in most important cases to keep in Gaol or admit to Bail." (125) Ultimately, the drafters seized on Gouverneur Morris's proposal that "[t]he 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." (126) The Committee on Style subsequently changed the word "where" to "when" and moved the Clause from the draft Judiciary Article to its present location. (127)
There is more to be found in the ratification debates. During the debates, discussion of the Suspension Clause proceeded within the larger debate over the allocation of power between the new federal government and the states, as well as within the debate over the specific enumeration of individual rights in the new Constitution. (128) Resistance to the draft Suspension Clause commonly centered on a fear that its recognition of a suspension power could be abused by the majority to silence political foes. Thus, Luther Martin posited that the Suspension Clause would serve as "an engine of oppression" in the general government's hands, empowering it to "declare ... an act of rebellion," in turn suspend the writ and thereby "seize" those who "oppose its views" and "imprison them during its pleasure." (129) In the realm of public debate, moreover, some warned that in light of the Suspension Clause,
Congress will then have it in their power to suspend the dearest of all privileges ... and it will be in the power of the President, or President and Senate, as Congress shall think proper to empower, to take up and confine for any cause, or for any suspicion, or for no cause perhaps any person he or they shall think proper ... and the poor man [will] after (perhaps) years of imprisonment have no kind of possibility to obtain any kind of satisfaction for the loss of his liberty. (130)
Other prominent commentators, including Jefferson, also recognized the breadth of the suspension power and held the view that the Suspension Clause should be removed from the draft Constitution and replaced by a clause protecting the writ of habeas corpus as inviolate. (131)
Defending the Clause in the Virginia debates, Wilson Nicholas characterized the power to suspend as "necessary" in cases of rebellion or invasion, although conceding that its effect was to "suspend our laws." (132) Along the same lines, at the Massachusetts Ratifying Convention, Judge Dana defended the Clause and responded to challenges that it vested too much power in the government not by denying the point, but instead by emphasizing the limitations on its exercise that had been built into the Constitution:
The safest and best restriction [on the suspension authority] ... arises from the nature of the cases in which Congress are authorized to exercise that...
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