Habeas Corpus

Confinement of a person “by secretly hurrying him to jail, where his sufferings are unknown and forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government” than sentencing a person without a trial, wrote William Blackstone (1723–80) in his Commentaries on the Laws of England (1765–70). Habeas corpus (Latin for “thou shalt have the body”) evolved as a powerful tool with which individuals could challenge detention in the absence of a judicial proceeding. Under this principle, a person in government custody has the right to be brought before a court, where the authorities must show cause why he or she should be legally held.

The importance of the writ of habeas corpus to the Framers of the Constitution is highlighted by Alexander Hamilton, who quoted Blackstone’s point in essay 84 of The Federalist (1787–88) (see Federalist Papers). In this essay, a defense of the Constitution’s original lack of a bill of rights, Hamilton included the writ of habeas corpus in a list of civil protections that did not have to be spelled out in a bill of rights, among them the prohibition against ex post facto laws and the guarantee of a trial by jury (see Juries). Hamilton also concurred with Blackstone’s praise of Britain’s Habeas Corpus Act (1679) as “the Bulwark of the British Constitution,” calling habeas corpus “a remedy for this fatal evil” of unauthorized detention.

In Article I, section 9, the Constitution directs: “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.” Its use in the United States has been greatly expanded to include challenging the constitutionality of criminal trials and convictions by courts of law.

The constitutions of a number of other countries incorporate the Anglo-American concept of the writ of habeas corpus. Brazil’s constitution (1988) guarantees that habeas corpus “shall be granted whenever a person suffers or is in danger of suffering violence or coercion against his freedom of locomotion, on account of illegal actions or abuse of power.” The habeas corpus provision of the Philippines constitution (1987), adopted two centuries after the U.S. Constitution, uses the same wording as the 1787 document.

The Supreme Court Weighs In