Author

Amanda L. Tyler

Constitutional Law Article

The Forgotten Core Meaning of the Suspension Clause

Vol. 125 No. 4 Modern debates about the limits imposed by the Suspension Clause on the Executive’s power to detain citizens without criminal charges during wartime have largely taken place without historical reference to what the Founding generation understood the “Privilege of the Writ of Habeas Corpus” to mean. These debates likewise have largely failed to account for how the Founding generation viewed the relationship between the privilege and the provision for its suspension included in the Suspension Clause. Meanwhile, the Supreme Court has emphasized that the Suspension Clause analysis should be guided at a minimum by an understanding of the legal status of the privilege at the time of ratification. This Article seeks to fill this void by exploring the historical record to provide an account of what the Founding generation understood the constitutional “Privilege of the Writ of Habeas Corpus” to be.