The Great Right: Habeas Corpus

  • Wade L. Robison
Part of the The Philosophical Foundations of Law and Justice book series (AMIN, volume 2)

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.


American Citizen Constitutive Condition Governmental Official Constitutive Feature Constitutional Order 
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Copyright information

© Springer Science + Business Media B.V 2008

Authors and Affiliations

  • Wade L. Robison
    • 1
  1. 1.Rochester Institute of TechnologyUSA

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