Magna Carta and the american political imagination: two instances of habeas corpus vindicated

• Author: H. Robert Baker
• Pages: 215-235

FRONTIERS OF LAW IN CHINA

VOL. 11 JUNE 2016 NO. 2

DOI 10.3868/s050-005-016-0013-9

FOCUS

THE PAST, PRESENT, AND FUTURE OF RULE OF LAW

MAGNA CARTA AND THE AMERICAN POLITICAL IMAGINATION: TWO INSTANCES

OF HABEAS CORPUS VINDICATED

H. Robert Baker*

Abstract Magna Carta has long been understood as a source of inspiration for the U.S.

Constitution, and especially its enshrinement of the writ of habeas corpus — the right of

any prisoner to test his or her detention according to the law. In the “Suspension Clause”

of the U.S. Constitution (Article I, Section 8), Congress is granted permission to suspend

habeas corpus only “when in cases of Rebellion or Invasion the public Safety may

require it.” This article surveys two failed attempts by the U.S. government to suspend

the writ of habeas corpus. The first (which was actually the very first such attempt) was

in 1807 and followed revelations of the so-called Burr Conspiracy. The second

(incidentally the most recent in American history) occurred during the War on Terror and

culminated with the Supreme Court’s decision of Boumediene vs Bush in 2008. A close

examination of these two historical episodes reveals just how different were the

constitutional processes of the early republic and contemporary times. Additionally,

comparing the uses of Magna Carta during the two episodes demonstrates marked

changes in American political culture. Historical consciousness, vital to early

Americans’ understanding of their political system, has shifted to an elite level. Likewise,

the protection of fundamental liberties has migrated from the popular branch of

government (Congress) to the elite one (the Supreme Court). This article considers the

implication of this shift in both constitutional processes and historical consciousness.

Keywords Constitutional Law, legal history, habeas corpus, suspension clause, Magna

Carta

INTRODUCTION .................................................................................................................... 216

I. THE CONGRESSIONAL BILL TO SUSPEND HABEAS CORPUS IN 1808........................ 218

A. The Conspiracy of Aaron Burr ........................................................................218

* H. Robert Baker, Ph.D in History from University of California, Los Angeles; Associate Professor, at

Department of History, College of Arts & Sciences, Georgia State University, Atlanta, US. Contact:

robertbaker@gsu.edu

The author wishes to thank JIANG Dong of Renmin Law School for his intellectual guidance and Ryan

Max Rowberry and David Sehat for commenting on drafts of this article.

216 FRONTIERS OF LAW IN CHINA [Vol. 11: 215

B. The Secret Senate Bill to Suspend Habeas Corpus ........................................... 219

C. The Constitutional Debate in the House of Representatives.............................. 220

II. VARIETIES OF USES OF MAGNA CARTA IN EARLY AMERICAN POLITICAL

DISCOURSE............................................................................................................. 223

III. MAGNA CARTA IN TWENTY-FIRST CENTURY AMERICAN POLITICAL CULTURE .... 225

A. Habeas Corpus Review of Indefinite Suspension at Guantanamo Bay........... 225

B. The Congressional Debate over the Military Commissions Act of 2006 .........226

C. The Military Commissions Act and the American Press ................................ 229

D. Boumediene vs Bush (2008) and the Military Commissions Act.................... 231

CONCLUSION................................................................................................................... 233

INTRODUCTION

Magna Carta has always had a special place in the American political imagination. It

has been cited frequently before the Supreme Court and invoked by congressmen and

presidents. Friezes that adorn public buildings, most notably on the north wall of the U.S.

Supreme Court, depict the signing of Magna Carta, and it has served as inspiration for

both the framers of the Constitution and the stalwarts of the Civil Rights Movement.

Americans respect and revere Magna Carta largely because America’s political tradition

celebrates individual liberty against state power. However frequently or loudly Americans

proclaim their tradition of liberty, America’s history is replete with episodes of liberty

denied. The episodes are numerous, and most often conducted under color of law: the

spread of slavery following the adoption of the U.S. Constitution; the dispossession and

ethnic cleansing of Native Americans in the nineteenth century; the exclusion of Chinese

immigrants during the late nineteenth century; the internment of Japanese-Americans

during World War II; the list could go on. But the existence of a complicated past, one in

which a tradition of liberty coexists with instances of oppression, should not be taken

simply as evidence of rank hypocrisy or moral bankruptcy. It is, rather, an invitation to

treat the subject maturely. A proper understanding of America’s commitment to individual

liberty must begin with the sober examination of those moments when politicians

attempted to use the levers of power to restrict freedom.

Of all the symbols of Anglo-American liberty, one of the most ancient, revered, and

even most mythical, was the writ of habeas corpus. By the time of the drafting and

ratification of the U.S. Constitution in 1787–1788, the writ was well known as a judicial

bulwark against executive tyranny. The judge issuing the writ could require that any

prisoner be brought before his court to test whether his detention was according to proper

legal process. Although not specifically mentioned in Magna Carta, the “Great Writ,” as

it is called, traces a lineage nearly that old.1 Many of the Founding generation would

conflate the writ’s command with the promise issued in Magna Carta’s famous promise

1 Paul D. Halliday, Habeas Corpus: From England to Empire, Belknap Press of Harvard University Press

(Cambridge), (2010).