Article I, Section 9, Clauses 2 and 3: Habeas Corpus, Bill of Attainder, ex post facto law

Constitution Study with Douglas V. Gibbs, Thursday, October 21, 2010

Topic: Article I, Section 9, Clauses 2 and 3 - Habeas Corpus, Bill of Attainder, ex post facto law

We must remember that Article I, Section 8 is a list of authorities granted to the federal government, but Article I, Section 9 is prohibitive. This means that Section 9 is a list of things the federal government shall not do. Clauses 2 and 3 are integral to the working of our judicial system, as well as being prohibitive in nature to our U.S. Congress.

Article I, Section 9, Clause 2:

“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

Habeas corpus is a legal term that means quite literally in Latin: "you may have the body." In legal terms, Habeas corpus is a writ that releases a prisoner from unlawful detention. Habeas corpus comes from British common law, and has historically served as an important legal instrument safeguarding individual freedom against arbitrary state action that includes detention without the due process of law.

A writ of habeas corpus is a summons with the force of a court order that demands a prisoner be taken before the court, and that the custodian present proof of authority, allowing the court to determine if the custodian has lawful authority to detain the person. If the custodian does not have authority to detain the prisoner, then the prisoner must be released from custody.

Habeas corpus is designed to protect citizens against any detention that is forbidden by law. The U.S. Constitution specifically includes the habeas procedure, and instructs the Congress not to suspend such unless the detainment is the result of a “Rebellion or Invasion,” adding that “the public Safety may require it.”

Normally, habeas corpus proceedings accompany questions of jurisdiction and authorities of the court that sentenced a defendant. The suspension of habeas corpus has recently become an issue regarding the detainment of terrorists, but one must ask if the public safety requires the suspension of habeas corpus in the case of terrorists, as prescribed in the Constitution. Secondly, one must consider that the Constitution applies to American citizens, so the question on whether or not Article I, Section 9, Clause 2 applies to captured combatants seems to be a moot point since it is obvious that the detained are not American Citizens, and therefore are not protected by Constitutional protections.

Article I, Section 9, Clause 3:

“No Bill of Attainder or ex post facto Law shall be passed.”

A Bill of Attainder is when the legislature declares the guilt of a person or group of persons, and punishes them without due process (the benefit of a trial).

In Britain, bills of attainder were used as a convenient way for the King to convict subjects of crimes and confiscate their property without the bother of a trial, and without the need for a conviction or indeed any evidence at all. Such actions were seen as tyrannical, and the Founding Fathers did not wish to give the new federal government those same kinds of powers. Some states, prior to the Constitution, did use attainders against British loyalists, but the practice all but disappeared after the Constitution so specifically forbid the use of attainders by the U.S. Congress.

A question regarding bills of attainder arose regarding President Obama’s treatment of British Petroleum. The President considered BP guilty of the crime of spilling oil in the Gulf of Mexico, and demanded they pay retribution without the benefit of due process. However, the argument was that the President did not legislate a bill of attainder, and therefore was innocent of acting in an unconstitutional manner.

In reality, that made him even more guilty, for it was evidence that President Obama was acting in lieu of the Judiciary and Legislature. In other words, he took on their authorities without even the consideration that what he was doing was a usurpation of the powers of the other branches of government.

Prohibiting the use of bills of attainder serves a number of purposes. One purpose is that by disallowing the bills of attainder the separation of powers is reinforced. By disallowing bills of attainder, it literally forbids the legislature from performing judicial functions. Another purpose is in regard to the protection of the concept of due process, which was later reinforced by the Fifth Amendment to the Constitution.

The true danger of a bill of attainder is that such a legislative act inflicts punishment without a judicial trial, and takes away the life, liberty or property of the target.

Ex post facto Law is literally retroactive law, or a law that retroactively changes the legal consequences (or status) of actions committed or relationships that existed prior to the enactment of the law. Ex post facto law could criminalize actions that were legal when committed, or in the case of amnesty laws, decriminalize certain acts or alleviate possible punishments. Generally speaking, ex post facto laws are seen as a violation of the rule of law as it applies in a free and democratic society. Ex post facto laws are expressly forbidden by the United States Constitution.

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Thank you to Faith Armory, 27498 Enterprise Circle West, Temecula, California for the use of their classroom for our Constitution Studies. Be sure to visit www.politicalpistachio.com to read my daily writings.