The Counterfactual that Came to Pass: What If the Founders Had Not Constitutionalized the Privilege of the Writ of Habeas Corpus?

Abstract

What if, this Essay asks, the Founding generation had not constitutionalized the privilege of the writ of habeas corpus? As is explored below, in many respects, the legal framework within which we are detaining suspected terrorists in this country today — particularly suspected terrorists who are citizens — suggests that our current legal regime stands no differently than the English legal framework from which it sprang some two-hundred-plus years ago. That framework, by contrast to our own, does not enshrine the privilege of the writ of habeas corpus as a right enjoyed by reason of a binding and supreme constitution. Instead, English law views the privilege as a right that exists at the pleasure of Parliament and is, accordingly, subject to legislative override. As is also shown below, a comparative inquiry into the existing state of detention law in this country and in the United Kingdom reveals a notable contrast — namely, notwithstanding their lack of a constitutionally based right to the privilege, British citizens detained in the United Kingdom without formal charges on suspicion of terrorist activities enjoy the benefit of far more legal protections than their counterparts in this country.