Cornell Law Library Scholarship@Cornell Law: A Digital Repository Cornell Law Faculty Publications 11-1-2007 Suspension and the Extrajudicial Constitution Trevor W. Morrison Cornell Law School,
[email protected] Follow this and additional works at: http://scholarship.law.cornell.edu/lsrp_papers Part of the Civil Rights and Discrimination Commons, Constitutional Law Commons, and the Criminal Law Commons Recommended Citation Morrison, Trevor W., "Suspension and the Extrajudicial Constitution" (2007). Cornell Law Faculty Publications. Paper 88. http://scholarship.law.cornell.edu/lsrp_papers/88 This Article is brought to you for free and open access by Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Faculty Publications by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact
[email protected]. COLUMBIA LAW REVIEW VOL. 107 NOVEMBER 2007 NO. 7 ARTICLE SUSPENSION AND THE EXTRAJUDICIAL CONSTITUTION Trevor W Morrison* What happens when Congress suspends the writ of habeas corpus? Eve- ryone agrees that suspending habeas makes that particular-andparticu- larly important-judicialremedy unavailable to those the government de- tains. But does suspension also affect the underlying legality of the detention? That is, in addition to making the habeas remedy unavailable, does suspension convert an otherwise unlawful detention into a lawful one? Some, includingJustice Scalia in the 2004 case Hamdi v. Rumsfeld and Professor David Shapiro in an important recent article, answer yes. This Article answers no. I previously offered that same answer in a symposium essay; this Article develops the position more fully. Drawing on previously unexamined historical evidence, the first half of the Article shows that treating suspension of the writ as legalizing detention is at odds with the dominant historical understanding in both England and the United States.