"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."From this language we may reasonable conclude two important principles:
- Habeas corpus may only be suspended by an act of Congress (which raises the question of what is to be done if Congress and the courts cannot convene).
- Habeas corpus is presumed to be a right that precedes the Constitution and is incorporated by it, by restriction on when it may be suspended.
I have argued in a paper in progress, "Presumption of Nonauthority and Unenumerated Rights", at http://www.constitution.org/9ll/schol/pnur.htm , that all of those writs, and more, are indeed among the unenumerated rights of the Ninth Amendment, and that, contrary to current doctrine, these are not creatures of statute but fundamental rights that may not be constitutionally burdened. For evidence of this we can find among the proposed amendments from the New York ratifying convention not just a declaration of the writs as rights, but of a right to petition for the rights "in the name of the people", that is, as private attorneys general. That we have the rights was taken for granted. Only the standing of any person to petition for them was thought necessary to be asserted in an amendment.
Habeas corpus can be considered a subset of quo warranto. The former demands an official prove his authority to detain a person, but the latter demands an official, including a private official, prove his authority to do anything he may be doing or threatening to do, including holding an office. The former requires the official to produce the detainee in court. The latter requires him to suspend his activity until proof is made.
Was there ever a time, following the Declaration of Independence, which made the people the sovereign, when any individual could go to court with a petition for a writ of quo warranto and get an official activity suspended until that official proved his authority? Yes, there was, in the early republic, but so seriously did officials take the threat of such a writ that they took great care not to exceed their authority, so that the remedy almost never had to be carried forward, or precedents established. It should come as no surprise that officials don't like the right and have done almost everything they can to deny or deprecate it or make people forget about it.
Perhaps it's time to change that.
Most law schools don't teach much about the prerogative writs, not even habeas corpus. It should come as no surprise that many lawyers and judges are unclear on the concept or how it is supposed to work, if we followed the original standard of due oprocess. Too many judges treat a petition as an ex parte motion to show cause, with the burden on the petitioner. It is not. The writ is not an order from the court to produce the prisoner and the proof. The petition itself is the order to do that, much like a citation in a civil case, to respond to the filed petition. the writ is the finding by the court of whether the official has the authority, ordering release of the prisoner if he does not.
The only statutory component of habeas corpus, or the other writs, was a prescription of how much time the official has to comply. Originally, that ranged from three to twenty days, depending on the distance of the official from the court.
The question may arise, what happens if the court fails or refuses to hold a hearing, or accepts the authority of the official without the proof? This question is critical to an understanding of the role of courts in the Anglo-American legal tradition. The answer, by original standards of due process, is that the writ issues by default if the respondant fails to respond, or even if the court fails to hold a hearing. If the judge accepts the official's claim of authority without proof, then by those ancient standards, the judge himself may be removed from his position by a writ of quo warranto. In 18th century England this became a serious matter, and "peasants with torches and pitchforks" burning down courthouses and hanging judges was something that actually happened. If courts were derelict the people, as militia, took the law into their own hands, enforcing writs that by common understanding issued by default. But that process was not always so "due", and the line between militia enforcing the law and an enraged mob was often crossed.
We now live in an era of increasing tension between the judiciary and the public. This is a matter that deserves our constructive attention, or history could repeat itself.