POL 201 American National Government
Instructor: Teri Kuffel
Dana L. McAdams
September 3, 2012
Habeas Corpus, what does it mean? The literal meaning is Latin that translates as “you have the body “. A writ of Habeas Corpus means a “body” that is being held has the right to be brought before the court and have the charges be stated that they are being held for. In layman’s terms, you cannot be held for no reason; you have to be charged with something to be detained. We don’t live in a communist state where we can be picked up off the street and be jailed for an unlimited amount of time with no due process. A Habeas Corpus petition is used for many situations, from unlawful imprisonment to family law involving custody of children. (The ‘Lectric Law Library’ 1995-2012) In this paper I will discuss the history of Habeas Corpus and it’s use and if it is still pertinent in today’s world especially in view of the War on terror. Habeas Corpus is a hold over by our forefathers from the English courts. In England a “writ of Habeas Corpus or “prerogative writs” were historically used by the courts in the name of the monarch to control inferior courts and public authorities within the kingdom.” (Habeasbook.com). Since most of our forefathers were from England and the framers of the Constitution and the Declaration of Independence, they incorporated a great many of England’s laws into our new set of laws. Habeas Corpus has been an important legal instrument in safeguarding an individual’s freedom against an arbitrary state action and these men felt it was of upmost importance to include it in our nation’s founding groundwork. Habeas Corpus is available in many nations today, though they can be named differently like in Spanish-speaking nations; it would be “amparo de libertad” or ‘protection of freedom’ (Habeasbook.com). The reason so many wanted this included was so that the idea of all men have equality under the law, had a way to keep from being unjustly imprisoned (Pulito, B.). But in our history as a nation the writ of Habeas Corpus has been put aside on a number of occasions and for various reasons. The first to do so was President Abraham Lincoln. During the civil war Lincoln suspended the writ of Habeas Corpus during the first year, he used his presidential power to remove it in Baltimore first, then New York and shortly after the whole nation. Lincoln even authorized military officers to suspend the writ before he had made it an official proclamation in September of 1862. Lincoln claimed that he did it to assure victory and keep the union intact. By suspending Habeas Corpus he was going against the very thing he was fighting for, freeing the slaves (Pulito, B.). Lincoln did not legally have the power to do this under our constitution, only Congress had that power. The Supreme Court even ordered Lincoln to bring all prisoners before them, but he refused to do so. Lincoln believed he had done no wrong by suspending the writ and therefore did not have to obey the Supreme Court’s order. By doing all of this Lincoln had given the office of President “more power during a time of war than ever before” (Pulito, B.). This was more power than the Constitution allowed or ever intended for a President. Many have argued that if Lincoln had not violated the Constitution and Habeas Corpus we would be living in a much different world today. Did Lincoln’s means justify the end? I think so, slavery was an aberrant institution that needed to be abolished and unfortunately it took a war to do it. But, fast forward about one hundred years and Franklin D. Roosevelt used the same precedent set by Lincoln to once again set aside the writ so that people of Japanese descent in America could be forcibly detained during WWII. FDR’s reason was to prevent these Americans from showing any loyalty to the nation of their birth, or where their families were from. We are the place other’s come to escape from tyrannical...