How History Made The Constitution

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Even after Parliament had supposedly remedied that problem, royal judges accepted a return (or answer to the writ) that John Selden and others were being held by the king’s special command “for notable contempts against the king and for stirring up sedition against him.” In Star Chamber, that juryless judicial arm of would-be Stuart absolutism, the crown insisted upon its right of imprisonment without trial, on a warrant signed by the secretary of state and some privy councillors, alleging “reasons of state.” These royal efforts continued, even after Parliament abolished Star Chamber in 1641.

The Commons repeatedly passed legislation to guarantee the Great Writ, as habeas corpus was called, but each time the bill failed in the House of Lords. Finally the Habeas Corpus Act of 1679 passed both houses (because, it was said, the tellers in the Lords counted one stout peer as ten).

In America one notorious imbroglio just before the Revolution suggested that habeas corpus continued to need protection. Alexander MacDougall, a New York radical, had published a broadside that the Loyalist-controlled Assembly damned as “a false, seditious and infamous libel.” Attempting itself to try MacDougall, the Assembly voted him guilty, ordered him jailed, and directed the sheriff to disregard any attempt at habeas corpus. A judge issued the writ, but the officer obeyed the legislature and ignored it.

With this background the framers had no difficulty, as Charles Pinckney of South Carolina said, “securing the benefit of the Habeas corpus in the most ample manner....” Indeed, they only disagreed on whether suspension of the privilege was appropriate at all, even (as the text finally read) “when in Cases of Rebellion or Invasion the public Safety may require it.”

Habeas corpus was probably liberty’s most significant guarantee because once the writ was freely and unalterably available, no one could be illegally jailed. However compelling the need that no one suffer improper confinement, it is almost as essential that none suffer improper accusations. From the history of the mother country as well their own, the framers recognized some other criminal law threats: particularly the ex post facto law.

The ex post facto law is simply a legislative attempt to criminalize an act after the fact, a kind of changing the rules when the game is over. Its manifest unfairness caused many state constitutions to express absolute prohibitions or to bar such legislation by their “spirit and scope,” as Madison said. During debate several lawyer delegates (Gouverneur Morris, Oliver Ellsworth, and James Wilson) in fact thought ex post facto laws so “void of themselves,” as Ellsworth said, that specific prohibition was needless.

But Daniel Carroll, a delegate from Maryland, said that “experience overruled all other calculations.” And as the North Carolina delegate Dr. Hugh Williamson remarked, if the legislature should pass an ex post facto law, “the Judges can take hold of” the constitutional prohibition; that is, relying on the Constitution, they can nullify the statute.

Having explicitly stripped the national government of the ex post facto law, the framers had no trouble imposing the same prohibition on states. In addition, they forbade states to pass laws “impairing the Obligation of Contracts.”

Every convention delegate had been guilty of treason less than ten years earlier.

Although this may seem far removed from issues of individual liberty, the delegates regarded the matter of contracts as so vital that the only question seemed to be whether the bar against ex post facto laws covered what the Delaware delegate John Dickinson called “retrospective laws in civil cases.” Consulting Blackstone’s Commentaries on the Laws of England, he concluded that it did not and that “some further provision for this purpose would be requisite.”

The contracts clause attracted little opposition, probably for the reasons that Madison set out in The Federalist No. 44: “The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs [i.e., schemes] in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community.”

Nothing in the recorded convention debates, however, suggests why the emphatic protection of habeas corpus did not also specifically apply to the states. The argument that the state constitutions already guaranteed the Great Writ fails in light of Madison’s “additional fences” rationale, which accurately reflects the delegates’ attitude. Moreover, as Hamilton conceded in another connection, New York’s constitution, for one, contained no provision precluding arbitrary imprisonments, “the favorite and most formidable instruments of tyranny.” In fact, not until ratification of the Fourteenth Amendment in 1868 did the Constitution even inferentially guarantee state habeas corpus.