June 30, 2004

MAD, QUITE MAD

U.S. Constitution, Article I, Section 9, Clause 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.
There's some current discussion in the blogosphere, primarily at the Volokh Conspiracy about whether Congress could suspend the Writ of Habeas Corpus in response to the Supreme Court decisions in Hamdi and Razul. The argument that Congress can't relies on the fact that the current war is neither an "invasion" or "rebellion". I think that there are colorable arguments that the war on terror would satisfy either requirement, but why is the suspension clause so limited? Isn't the clear answer that the Founders, faced with a decision that the writ applies to foreigners captured on the battlefield, would think we had completely lost our minds. Posted by David Cohen at June 30, 2004 2:18 PM
Comments

Isn't this idea that the US Constitution applies to foreigners who have minimal and non-voluntary contact with the US a bit imperialist? If people really believe that the Constitution extends to those who've never sought to be a part of it, or are actively working against it, then let's just start annexing territory.

Posted by: Raoul Ortega at June 30, 2004 2:48 PM

Isn't this ("would think we had completely lost our minds") the same reason that man-woman marriage isn't mentioned in the Constitution?

Posted by: fred at July 1, 2004 12:28 PM

I was at Ground Zero on Tuesday. It looked like the scene of an invasion to me.

Posted by: Robert Schwartz at July 1, 2004 5:30 PM

Not to mention the enemy fighters sent into the country to kill us.

Posted by: David Cohen at July 1, 2004 6:26 PM

fred -- In anything approaching the federalist system designed by the Framers, marriage is not the federal government's business.

Posted by: David Cohen at July 1, 2004 8:55 PM
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