J. Robert Osborne
The Constitution of the United States was written in 1787 and specifically referred to the writ of habeas corpus as a fundamental legal underpinning of the new nation. The thirteen original states ratified the Constitution and then it was amended in 1791 by the Bill of Rights. The request for the issuance of a writ of habeas corpus is made before a judge and, if granted, a prisoner must be brought before the judge. The writ requires whoever is holding the prisoner to produce him before the judge at a time determined by the judge. The writ of habeas corpus was the “mechanism” for the founders to encourage the separation of powers and maintain the balance between them because it was the ultimate protector of the rights of any individual threatened with unlawful imprisonment or detention. The courts had the legal authority to require the imprisoning governmental body to bring the accused to court and if the prisoner was not produced then the people who authorized the imprisonment were to be held in contempt of court. The founders understood that the law and not the government should be the ultimate determinant of our democracy and that the rights of its people had to be the law’s focus.
The writ of habeas corpus came from the legal traditions of English common law and it survived because it represented the struggle of the individual against the excess of governmental abuse. It directly addressed the inequality of power between a citizen and the government and it is the basis of this curriculum unit. It is an excellent beginning to the study of the origins of the government of the United States and it is a key legal concept to follow through the history of America. The curriculum unit will focus on the effects of war in the maintenance of this basic right, particularly the American Civil War. Abraham Lincoln did not hesitate to suspend the writ of habeas corpus when he believed that the Union was threatened and his actions will be the primary focus of the unit. There will be some significant time spent in the origins of the writ itself and what it means and the curriculum will also link Lincoln’s struggles with Chief Justice Taney and the Supreme Court with the very recent developments in the legal history of habeas corpus in the Supreme Court’s decision of the legal case,
Boumediene v. Bush
.
