A Special Lesson on Habeas Corpus

Tenth Amendment Center: Constitutional Conversation

In this special edition of Tenther Radio, Michael Boldin and Jason Rink are joined by Rob Natelson for a lesson on Habeas Corpus. Natelson is a constitutional scholar whose meticulous studies of the Constitution’s original meaning have been published or cited by many top law journals. Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado’s Independence Institute.

“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.”

Natelson explains What habeas corpus is – and why it is important. He gives us an overview of the Founders’ view of habeas corpus, and specifically, the Constitutional power to suspend habeas corpus. Also discussed are Sections 1021 and 1022 of the National Defense Authorization Act of 2012 – and why this should be of great concern to those who support liberty – and the writ of habeas corpus.

Rob also discusses in more detail what he wrote in his book, The Original Constitution – “American state habeas statutes in force during the founding era sometimes protected only “citizens” However, the federal constitutional right was defined by English common law, and therefore extended to some non-citizens” – and the important 2008 Supreme Court case, Boumediene v. Bush.

Finally, Natelson gives us his opinion of St. George Tucker’s view in 1803 that “Habeas corpus cannot be suspended, unless in cases of actual rebellion or invasion. A suspension under any other circumstances, whatever might be the pretext, would be unconstitutional, and consequently must be disregarded by those whose duty it is to grant the writ.”

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