A Constitutional Primer on Habeas Corpus
Privilege of Citizenship
Our Supreme Court recently made a 5 to 4 ruling on Habeas Corpus that has been troubling to many, especially the four dissenting judges and many citizens who care about government’s fidelity to OUR Constitution. This ruling allows Islamic terrorists in Guantanamo access to our civil court systems violating over 50 years of precedents and the plain meaning of our Constitution.
What does the Constitution actually say about Habeas Corpus?
It is only found in Article I, Section 9. Article I contains Congressional authority, and Section 9 contains those things that Congress cannot do. It says:
“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.” (Emphasis added)
Click for source
Habeas Corpus simply means show me the body. It is simply an order or a Writ from a judge ordering an individual to be brought before his bench and be allowed to show cause why he should no longer be incarcerated or simply be brought to trial. It is a privilege of citizenship.
According to The Heritage Guide to the Constitution, page 152, one of the most divisive issues at the state and federal constitutional conventions was the failure to have a complete ban on the federal government’s ability to make any exceptions to The Writ, as this was a special and important right of citizenship. They knew however, that an exception had to be made for, “...Cases of Rebellion or Invasion [as] the public Safety may require it.” (Emphasis added)
Notice this clause is in Article I that pertains to Congressional authority, and the implication is that Congress cannot wave this privilege [of citizenship] unless the public safety requires it.
Webster’s 1828 Dictionary defines privilege as:
2. Any peculiar benefit or advantage, right or immunity, not common to others of the human race. Thus we speak of national privileges, and civil and political privileges, which we enjoy above other nations. Click for source
Next, let’s look at the Preamble.
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. (Emphasis added) Click for source
One of the most traumatic times in our nation’s history was from 1776 when we separated from England, to 1789 when we finally had a Constitution that created a much needed structure and limited authority for a federal government. A government that was created only to do those things that the states could not do for themselves.
The Preamble is simply declaratory and does not grant or limit power of the federal government, as confirmed by the Supreme Court in Jacobson v. Massachusetts (1905). Click for source
The Preamble does, however, specify the purpose of the federal government in a very concise way.
1. To, “form a more perfect Union,” as the Articles of Confederation had been a failure.
2. To, “establish Justice,” as there was not a federal court system.
3. To, “insure domestic Tranquility,” as there had been tremendous turmoil, with riots, failure of the monetary system, dissension between states, etc.
4. To, “provide for the common defence,” as they had no real system before.
5. To, “promote the general Welfare,” not provide for, but to promote.
6. And finally to, “secure the Blessings of Liberty to ourselves and our Posterity,” notice this was to secure these things for “ourselves” which was for “We the People” and our “Posterity.” This was NOT to secure these things to those visiting our great nation, those here illegally, or for enemy combatants who are attempting to destroy our Constitutional Republic, which includes radical Islamic terrorists wherever they may be.
Justice Story was considered the father of our American Jurisprudence. He was a Supreme Court Justice who wrote extensively on our Constitution in the early 1800s. In his Commentaries on the Constitution of the United States, referring to the Preamble he said,
“...its true office is to expound the nature and extent and application of the powers actually conferred by the Constitution.” See § 462
Given that the Preamble is simply declaratory, and was intended to, “...expound the nature and extent and application of the powers actually conferred by the Constitution,” it should be clear that our Constitution was meant to, “secure the Blessings of Liberty to ourselves and our Posterity,” not visitors, illegals, or those who would harm us. The Constitution is NOT a suicide pact.
For further clarification of the differences between privileges and rights see:
AMENDMENT XIV of the U.S. Constitution
Passed by Congress June 13, 1866. Ratified July 9, 1868.
”... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; ...” (emphasis added) Click for source
Notice the distinction between, “...abridg[ing] the privileges or immunities of citizens of the United States” and the broader term person when it comes to, “depriv[ing] any person of life, liberty, or property.” Life, liberty, and property are considered universal human rights as they flow from the laws of our Creator, the Ten Commandments. Visitors and others who are in our country legally are afforded the rights to “Life, liberty, and property” as long as they conform to our laws, they should NOT be accorded the privileges and immunities of citizenship!
The above makes a firm case that “the Writ of Habeas Corpus” was only intended to protect our own citizens, as it is a privilege of citizenship.
When our Supreme Court converts a privilege for our citizens into a right for anyone, including radical Islamic terrorists who are bent on destroying our nation, "the great Satan;" the Court is unconstitutionally revising our most fundamental organic law – Our Constitution. This violates the very first sentence of Article I, Section 1, that states:
“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Click for source
Congress should explain to the courts that the privilege of the Writ of Habeas Corpus is a privilege of citizenship and not for Islamic terrorists captured in our war against radical Islam wherever they may be. For Islamic terrorists who may have become US citizens, the privilege of Habeas Corpus should be suspended by Congress because public safety requires it. Many terrorists that have been released have been recaptured in battle against our own troops, and some have even blown themselves up along with many innocent civilians. There are many terrorist sleeper cells throughout our nation, some of which may be manned by citizens who have converted to Islam. This suspension of Habeas Corpus for them should remain in force until the Islamic terrorists decide to end their Jihad against us – let them be the ones to end this suspension.
Then Congress should exercise their Constitutional authority under Article III, Section 2, clause 2, and impose a sanction against any federal court claiming that radical Islamic terrorists have any rights under our Constitution until their war, bent on destroying our nation, is over.
Art. III, Sec. 2, states:
“...the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Click for source
And finally, Congress should place the federal court system on notice that if it is discovered that federal judges change the original intent of the people by revising the original intent or purpose of our Constitution, or if they look to foreign law or UN resolutions for their judgments rather than US law or our Constitution, then that becomes a violation of their oaths of office, and a breach of tenure under “good behavior,” and will be grounds for impeachment by the House of Representatives and removal from office by the Senate.
It is way past time to reestablish the separation of powers and checks and balances created by our founders and “We the People” through our U.S. Constitution.
Our future is at stake.
James Madison, the father of our Constitution, quoting Montesquieu in Federalist 47 said,
"Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR. Were it joined to the executive power, THE JUDGE might behave with all the violence of AN OPPRESSOR."
Click for source
This is exactly what we have allowed for over 80 years.
Please contact your elected officials: By CLICKING HERE and make your positions known on this subject.
Our future is at stake.
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