Herewith a short history of habeas corpus. The muses are fluttering because of the insistence by President Trump and his deputy chief of staff, Stephen Miller, that the notion of suspending the Great Writ is being weighed in the White House. Our A.R. Hoffman reports in Monday’s edition that the idea seems to be to get the courts off the administration’s back as Mr. Trump carries out his promise to deport those who came here illegally.

We don’t mind saying that we have a good degree of sympathy with Mr. Trump on this head. He campaigned on this issue. It was one of the points of contention between the Democrats and the Republicans. That is, it’s one of the issues on which Mr. Trump won a mandate. Currently the courts have accepted, by some counts, as many as 200 cases challenging Mr. Trump’s powers on various matters. None is more dramatic than the habeas cases.

Habeas corpus — Latin for “you shall have the body” — is a legal shorthand for a court challenge to a person’s detention by the government. It has for centuries been a basic right inseparable from due process. “The great bulwark of personal liberty,” is how Justice Joseph Story described it in 1833. Said he: “It is the appropriate remedy to ascertain, whether any person is rightfully in confinement or not, and the cause of his confinement.” 

The writ’s status as constitutional bedrock is ordained in Article I, Section 9, which lists things the Congress mayn’t do. “The Privilege of the Writ of Habeas Corpus,” it ordains, “shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” That dovetails with the Fifth Amendment’s insistence that “No person” — citizen or otherwise — shall “be deprived of life, liberty, or property, without due process of law.”

What to make of the “Suspension Clause” that allows for a habeas hiatus? Story concludes that “as the power is given to congress to suspend the writ” during “cases of rebellion or invasion,” then “the right to judge, whether exigency had arisen, must exclusively belong to that body.” That view was tested during the Civil War when Lincoln sought to suspend habeas, only to be reproached by the Supreme Court in the case of Ex Parte Merryman.

John Merryman was a Maryland planter arrested without trial on suspicion of destroying railroad bridges. “I can see no ground whatever for supposing that the President in any emergency” could “authorize the suspension of the privilege of the writ of habeas corpus,” Chief Justice Taney fumed. President Lincoln did not bend — immediately. Yet Lincoln did contrive to have Congress pass a law granting him the power, during the rebellion, to suspend habeas. 

Congress would again limit habeas — and due process — for illegal aliens in a 1996 law that gave federales the authority to expel, with no trial, migrants found near the border. Justice Samuel Alito, writing in 2020 for the majority in Department of Homeland Security v. Thuraissigiam, said that for illegal aliens at the border, “the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.”

Yet the Nine held that the due process and habeas rights of illegals captured in the interior are more complicated. Justice Alito in Thuraissigiam says that “aliens who have established connections in this country have due process rights in deportation proceedings.” He adds that “the usual removal process involves an evidentiary hearing before an immigration judge, and at that hearing an alien may attempt to show that he or she should not be removed.”

The extent of those due process rights was left unsettled by the high court and may yet be tested under Mr. Trump. Yet it’s hard to avoid the sense that habeas stands among those “unalienable rights” of “Life, Liberty and the Pursuit of Happiness” with which “all men,” per the Declaration, “are endowed by their Creator.” If so, quashing that right could run afoul of an Authority above that of kings, presidents, or even White House deputy chiefs of staff.