This clause is the only place in the Constitution in which the Great Writ is mentioned, a strange fact in the context of the regard with which the right was held at the time the Constitution was written 1686 and stranger in the context of the role the right has come to play in the Supreme Court's efforts to constitutionalize federal and state criminal procedure. 1687
Only the Federal Government and not the States, it has been held obliquely, is limited by the clause. 1688 The issue that has always excited critical attention is the authority in which the clause places the power to determine whether the circumstances warrant suspension of the privilege of the Writ. 1689 The clause itself does not specify, and while most of the clauses of 9 are directed at Congress not all of them are. 1690 At the Convention, the first proposal of a suspending authority expressly vested ''in the legislature'' the suspending power, 1691 but the author of this proposal did not retain this language when the matter was taken up, 1692 the present language then being adopted. 1693 Nevertheless, Congress' power to suspend was assumed in early commentary 1694 and stated in dictum by the Court. 1695 President Lincoln suspended the privilege on his own motion in the early Civil War period, 1696 but this met with such opposition 1697 that he sought and received congressional authorization. 1698 Three other suspensions were subsequently ordered on the basis of more or less express authorizations from Congress. 1699
When suspension operates, what is suspended? In Ex parte Milligan, 1700 the Court asserted that the Writ is not suspended but only the privilege, so that the Writ would issue and the issuing court on its return would determine whether the person applying can proceed, thereby passing on the constitutionality of the suspension and whether the petitioner is within the terms of the suspension.
Footnotes
[Footnote 1686] R. Walker, The American Reception of the Writ of Liberty (Norman, Okla.: 1961).
[Footnote 1687] Infra, discussion under Article III.
[Footnote 1688] Gasquet v. Lapeyre, 242 U.S. 367, 369 (1917).
[Footnote 1689] In form, of course, clause 2 is a limitation of power, not a grant of power, and is in addition placed in a section of limitations. It might be argued, therefore, that the power to suspend lies elsewhere and that this clause limits that authority. This argument is opposed by the little authority there is on the subject. 3 M. Farrand, The Records of the Federal Convention of 1787 (New Haven: 1937), 213 (Luther Martin); Ex parte Merryman, 17 Fed. Cas. 144, 148 (No. 9487), (C.C.D. Md. 1861); but cf. 3 J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Washington: 2d ed. 1836), 464 (Edmund Randolph). At the Convention, Gouverneur Morris proposed the language of the present clause: the first section of the clause, down to ''unless'' was adopted unanimously, but the second part, qualifying the prohibition on suspension was adopted over the opposition of three States. 2 M. Farrand, op. cit., 438. It would hardly have been meaningful for those States opposing any power to suspend to vote against this language if the power to suspend were conferred elsewhere.
[Footnote 1690] Cf. Clauses 7, 8.
[Footnote 1691] 2 M. Farrand, The Records of the Federal Convention of 1787 (New Haven: rev. ed. 1937), 341.
[Footnote 1692] Id., 438.
[Footnote 1693] Ibid.
[Footnote 1694] 3 J. Story, Commentaries on the Constitution of the United States (Boston: 1833), 1336.
[Footnote 1695] Ex parte Bollman, 8 U.S. (4 Cr.) 75, 101 (1807).
[Footnote 1696] Cf. J. Randall, Constitutional Problems Under Lincoln (Urbana: rev. ed. 1951), 118-139.
[Footnote 1697] Including a finding by Chief Justice Taney on circuit that the President's action was invalid. Ex parte Merryman, 17 Fed. Cas. 144 (No. 9487) (C.C.D. Md. 1861).
[Footnote 1698] Act of March 3, 1863, 1, 12 Stat. 755. See Sellery, Lincoln's Suspension of Habeas Corpus as Viewed by Congress, 1 U. Wis. History Bull. 213 (1907).
[Footnote 1699] The privilege of the Writ was suspended in nine counties in South Carolina in order to combat the Ku Klux Klan, pursuant to Act of April 20, 1871, 4, 17 Stat. 14. It was suspended in the Philippines in 1905, pursuant to the Act of July 1, 1902, 5, 32 Stat. 692. Cf. Fisher v. Baker, 203 U.S. 174 (1906). Finally, it was suspended in Hawaii during World War II, pursuant to a section of the Hawaiian Organic Act, 67, 31 Stat. 153 (1900). Cf. Duncan v. Kahanamoku, 327 U.S. 304 (1946). For the problem of de facto suspension through manipulation of the jurisdiction of the federal courts, see infra, discussion under Article III.
[Footnote 1700] 71 U.S. (4 Wall.) 2, 130 -131 (1866).