ARTICLE THE FORGOTTEN CORE MEANING OF THE SUSPENSION CLAUSE Amanda L. Tyler CONTENTS INTRODUCTION ............................................................................................................................ 903 I. FROM WORLD WAR II TO THE WAR ON TERRORISM: PREVENTIVE DETENTION OF CITIZENS FOR NATIONAL SECURITY PURPOSES .................................................. 909 A. World War II and the Cold War ..................................................................................... 909 B. The War on Terrorism and the Supreme Court’s Decision in Hamdi v. Rumsfeld .. 911 1. Padilla ........................................................................................................................... 912 2. Hamdi ........................................................................................................................... 913 C. The Suspension Clause and Original Meaning ............................................................. 918 II. THE ENGLISH CONCEPTION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS AND SUSPENSION PRIOR TO RATIFICATION ................................................ 923 A. The Origins of the Privilege and the Protection of Individual Liberty in English Law ..................................................................................................................................... 923 B. Parliamentary Suspensions of the Habeas Corpus Act ................................................ 934 C. The Privilege, Suspension, and Individual Liberty Under English Law .................. 952 III. THE FOUNDING-ERA CONCEPTION OF THE PROTECTIONS INHERENT IN THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS AND HOW THEY RELATED TO ACTS OF SUSPENSION ......................................................................................................... 954 A. Declaring Independence and Forming a New Allegiance ............................................ 955 B. The Constitutional Convention and Ratification: The “Privilege . Is Essential to Freedom” ............................................................................................................................ 969 C. The Suspension Clause in Its Infancy............................................................................ 975 IV. THE CIVIL WAR AND RECONSTRUCTION: THE CONSTITUTION’S FIRST EXPERIMENT WITH “A MOST EXTRAORDINARY POWER” ....................................... 986 V. THE SUSPENSION CLAUSE IN THE CONSTITUTIONAL FRAMEWORK TODAY ..... 998 A. The Original Understanding of the Suspension Clause ............................................... 998 B. Modern Departures from the Original Understanding .............................................. 1001 C. Returning to Hamdi ....................................................................................................... 1004 D. The Suspension Clause in Wartime .............................................................................. 1011 E. Potential Implications .................................................................................................... 1015 CONCLUSION ............................................................................................................................... 1016 901 THE FORGOTTEN CORE MEANING OF THE SUSPENSION CLAUSE Amanda L. Tyler∗ Modern debates about the limits imposed by the Suspension Clause on the Executive’s power to detain citizens without criminal charges during wartime have largely taken place without historical reference to what the Founding generation understood the “Privilege of the Writ of Habeas Corpus” to mean. These debates likewise have largely failed to account for how the Founding generation viewed the relationship between the privilege and the provision for its suspension included in the Suspension Clause. Meanwhile, the Supreme Court has emphasized that the Suspension Clause analysis should be guided at a minimum by an understanding of the legal status of the privilege at the time of ratification. This Article seeks to fill this void by exploring the historical record to provide an account of what the Founding generation understood the constitutional “Privilege of the Writ of Habeas Corpus” to be. The evidence explored herein reveals that by the Founding period, the privilege had come to encompass a general right of persons owing allegiance and thereby enjoying the protection of domestic law — most especially citizens — not to be detained without charges for criminal or national security purposes in the absence of a valid suspension. This conclusion follows from the strong connection forged in the period leading up to ratification between the privilege and a host of individual rights — including the rights to presentment or indictment, reasonable bail, and speedy trial — many of which were promised by the Habeas Corpus Act of 1679. As this Article also explores, throughout the Founding period and well through Reconstruction, it was virtually taken for granted that where a valid suspension was not in place — even during wartime — citizens owing allegiance who were suspected of supporting the enemy could only be detained on American soil pursuant to substantiated criminal charges. Consistent with this principle, the history reveals that the entire point of suspending the privilege was to endow the Executive with the power to arrest and detain such persons without criminal charges in times of war. The Article concludes by discussing how this history calls into question the constitutionality of the internment of Japanese Americans during World War II and the detention of American citizens as so-called “enemy combatants” in the wake of the attacks of September 11, 2001. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– ∗ Associate Professor of Law, George Washington University Law School. I thank partici- pants in faculty workshops held at George Washington University Law School, New York Uni- versity School of Law, the University of California Berkeley School of Law, and the University of Virginia School of Law, as well as Columbia Law School’s Legal Theory Workshop, Northwes- tern University School of Law’s Constitutional Law Colloquium, Notre Dame Law School’s Se- paration of Powers Roundtable, Stanford Law School’s Seminar on Foreign Affairs and the Con- stitution, the University of Chicago’s Constitutional Law Workshop, and the Yale Law Women Reading Group, along with Janet Alexander, Bradford Clark, Thomas Colby, Richard Fallon, David Golove, Thomas Green, Patrick Griffin, Paul Halliday, Philip Hamburger, John Harrison, Helen Hershkoff, Daryl Levinson, Gerard Magliocca, John Manning, Jenny Martinez, Daniel Meltzer, Henry Monaghan, Trevor Morrison, Caleb Nelson, William Nelson, James Pfander, Sai- krishna Prakash, John Phillip Reid, Russell Robinson, Stephen Schulhofer, David Shapiro, Jona- than Siegel, and G. Edward White for helpful comments on earlier drafts. I am deeply indebted to Jason Hawkins of the Jacob Burns Law Library for his outstanding historical research support and grateful to Sean Sherman and Devin Anderson for their research assistance. 902 2012] THE SUSPENSION CLAUSE 903 INTRODUCTION With regard to the writ of Habeas Corpus, they wished that its privileges should be more accurately defined and more liberally granted, so that citi- zens should not be subject to confinement on mere suspicion. — John Stetson Barry1 he Suspension Clause remains a puzzle. Just what the Founding T generation had in mind when they included it in the Constitution remains the subject of great debate, as does the role that it should play today in regulating government action taken in the name of national security. In the wake of the attacks of September 11, 2001 — events that have now made war and the fear of terrorism a part of our ongo- ing national experience — clarifying the meaning of the Suspension Clause has taken on important and all-too-real-world significance. In prior work, I explored the historic office of suspension as a font of emergency power during times of national crisis.2 More specifically, that work concluded that where Congress takes the “grave action”3 of suspending the privilege of the writ of habeas corpus, it may “by that act . lawfully . authorize the Executive to engage in some measure of preventive detention.”4 This conclusion followed in large part from the historical conception of the suspension authority, which has long viewed an act of suspension as the appropriate means by which the Executive could arrest on suspicion alone, without the test of a crimi- nal trial and free of many of the legal constraints that normally govern the ability to arrest and detain in the name of preserving the peace.5 But there are two sides to the Suspension Clause. Article I, Section 9 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.”6 The clause both contemplates a dramatic emergency power (by permitting suspension of the privilege) and oper- ates as a significant constraint on what government may do in the ab- sence of a valid suspension (by implicitly recognizing the availability of ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 1 3 JOHN STETSON BARRY, THE HISTORY OF MASSACHUSETTS: THE COMMON- WEALTH PERIOD 178 (Boston, Henry Barry 1857) (discussing the comments of the Boston dele- gates with respect to the draft habeas clause in the Massachusetts Constitution of 1780). Barry paraphrases Alden Bradford’s earlier account of the relevant