Habeas Corpus

 No freeman is to be taken or imprisoned or disseised [deprived] of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we [the king] go against such a man or send against him save by lawful judgement of his peers or by the law of the land. To no-one will we sell or deny of delay right or justice.¹

The right to due process, ensuring that accused individuals are granted the rights due to them under a system of law, dates in western Europe from at least 1215, when King John of England signed the Magna Carta.

The Magna Carta is a list of rights ranging from matters touching on property and inheritance to criminal law granted by the king to noble classes and landed gentry. The first paragraph above, ensuring that individuals accused of a crime would not be punished without a trial, is what we would call a due process clause. (The explanatory material in brackets is ours.)

While it is not expressly stated, the text implies that even the king is subject to the laws set out in the charter. This would have been remarkable at any point in history, but for it to appear when the doctrine of the divine right of kings, in which John believed, was widely accepted makes it even more so. 

The Magna Carta underwent many changes over centuries, and at times was held in abeyance, but it eventually became the basis of English common law. From there it jumped the Atlantic and became part of our Constitution.

Of everything in the Constitution adopted from English law, the greatest and most important is the concept of due process. Its legal name is Habeas Corpus, and it is the part of our laws that protects all of us from illegal imprisonment, deportation, or punishment. A complete definition is below, at note ².

"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."  (The Constitution, Article 1, Section 9.)

The right to due process is the only specific right to be mentioned in two places in the Constitution. The 14th Amendment, ratified and written into the Constitution in 1868, reinforced Article 1: "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; nor deny to any person within its jurisdiction the equal protection of the laws."

 The Trump White House is making noises about suspending Habeas Corpus. This has happened only 4 times since 1789, all but once during a war. The exception was during reconstruction when parts of North Carolina were overrun by the KKK. Suspension affecting the entire country has been applied only once, during the Civil War.

Habeas Corpus may be suspended only in times of invasion or war. Trump has tried in the past to make the case that we are invaded by an "army" of foreign terrorists. It's a feeble argument at best. Right now the only place suffering an invasion of terrorists is D.C. and the terrorists are those running the zoo Trump calls a government.

But I digress.

Now that Habeas Corpus is a target, it becomes clear why DonJohnny also wanted to get rid of the first part of the same amendment, the so-called "birthright" clause: to make it easier to deport anyone, citizen or not, arbitrarily, unilaterally, and without judicial interference.

Any change in any amendment must be made by another amendment, which has to go through the ratification process. The Supreme Court hasn't the power to repeal anything in the Constitution. Their job is to consider legislation in the light of the Constitution and decide if that legislation conforms. Period.

Habeas Corpus in some ways is the Constitution in miniature. Take away the protections it offers and the rest of the Constitution is little more than a manual on how to run government.

--- Diogenes, 13 May 2025

¹ Translation of 1297 Magna Carta by Nicholas Vincent, © Sotheby's, 2007. https://www.archives.gov/exhibits/featured-documents/magna-carta/translation.html.  Accessed 12 May 2025

² Latin for "you have the body," it is a writ (court order) which directs the law enforcement officials (prison administrators, police or sheriff) who have custody of a prisoner to appear in court with the prisoner to help the judge determine whether the prisoner is lawfully in prison or jail. The writ is obtained by petition to a judge in the county or district where the prisoner is incarcerated, and the judge sets a hearing on whether there is a legal basis for holding the prisoner. Habeas corpus is a protection against illegal confinement, such as holding a person without charges, when due process obviously has been denied, bail is excessive, parole has been granted, an accused has been improperly surrendered by the bail bondsman or probation has been summarily terminated without cause. Historically called "the great writ," the renowned scholar of the Common Law, William Blackstone, called it the "most celebrated writ in English law." It may also be used as a means to contest child custody and deportation proceedings in court. The writ of habeas corpus can be employed procedurally in federal district courts to challenge the constitutionality of a state court conviction.  Law.com: https://dictionary.law.com/Default.aspx?selected=848   Accessed 13 May 2025