The Habeas Corpus Myth


SleepySalsa's picture

Regardless of the pre-revolutionary (lone English history) of Habeas Corpus, we must look at it as it was when it was embodied into the Constitution, and where it has been applied, since that time. This is more thoroughly discussed in Habeas Corpus - The Guardian of Liberty (, though I will address some of the erroneous assumptions made in this current post.

Understand that, as we most often understand, it is based upon unlawful confinement. Have we failed however, to consider what the cause of confinement was, in this regard? William Rawle, in "A View of the Constitution of the United States" (1829) provides insight into the source of the cause, that is subsequently borne out by some Supreme Court decisions, when he say that Habeas Corpus " is the great remedy of the citizen or subject against arbitrary or illegal imprisonment; it is the mode by which the judicial power speedily and effectually protects the personal liberty of every individual, and repels the injustice of unconstitutional laws or despotic governors." The source, then, is "unconstitutional laws or despotize governors.

The author cites Abelman v. Booth [62 US 506] (1858), though he fails to address the authority granted by the Constitution, at least at that time, regarding slavery. The "Forgive Slave Act of 1850" was nothing more than a codification of the authority granted in Article IV, Section 2, clauses 2 and 3. of the Constitution. Those provisions of the Constitution, without statute detailing dealing with violations thereof would leave the government toothless in is ability to enforce the Constitution.

Later, the author cites In Re Tarble [80 US 397] (1871). Tarble (a minor) had enlisted in the military. Later, he deserted and was captured and detained. Subsequently, his father attempted to have him released from custody of the military and claimed that he was a minor.So, the question that warranted a judicial answer was whether the authority granted the federal government, granted under Article I, Section 8, clause 12, and, Article II, Section 2, clause 2 (authorities granted to Congress and the Executive) were subject to the will of the state, or the law of the land.

Congress has since appended the United States Code with provisions specific to Guantanamo Bat detainees, and I do not suggest that I support these, however, within 28 USC 2241-2243, assurance of the right of Habeas Corpus in codified, including provision for timely addressing a Demand of such right -- which, in articles found at you will see that the Clerk of the Court has an unauthorized means of barring a timely consideration of a Demand for Writ of Habeas Corpus.

Perhaps out outrage should not even consider discussion of the Sacred Writ, rather, the government's efforts to forestall, or deny, that right.

Samarami's picture

Anthony may be slowly coming to reality and anarchy. But he has a bit yet to travel. At least he is willing to quote Bentham in his assessment of "habeas corpus" as "sham security", which, of course, it is.


    "...I’m not sure we’d be better off without habeas corpus. I’m also not sure we’re much better off with it. We need due process because we need to constrain the state,..."

Stefan Molyneux challenged that thinking thus:

    "...A central lesson of history is that States are parasites which always expand until they destroy their host population. Because the State uses violence to achieve its ends — and there is no rational end to the expansion of violence — States grow until they destroy civilized interaction through the corruption of money, contracts, honesty, family, and self-reliance. As such, the cancerous metaphor is not misplaced. People who believe that the State can somehow be contained have not accepted the fact that no State in history has ever been contained..." (emphasis mine)

SleepySalsa in his above comment sums it up succinctly:

    "...Perhaps our outrage should not even consider discussion of the Sacred Writ, rather, the government's efforts to forestall, or deny, that right..."