Act 1, Scene 1. On the Heath.
The Dreamer: <wearing a long multi-coloured robe, with his back to the audience and to the three professors> Everything you know, and everything you think you know about the Suspension Clause is wrong. <He turns around slowly, no face is visible, and he has a withered hand>
The First Professor: Here we go again. What tall tale have you invented for us today Dreamer.
The Second Professor: Do you mean Taney was right, and Lincoln, wrong, or the other way around?
The Third Professor: He’s an originalist. Don’t let him even start. He’ll convince the weak-minded public. <looking heavenward> Burn the witch.
The Dreamer: <addressing Second Professor> That’s a common mistake. It comes from misunderstanding the Lincoln-Taney conflict. Merryman sought to determine whether the President or Congress or both could suspend habeas corpus. But that issue has nothing to do with the text of the Constitution.
First Professor: Come on: What have you been drinking. The text of the Suspension Clause speaks to this precise issue. It says: “The Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” It might not expressly explain who can suspend habeas, but it does address the issue of suspending habeas corpus. It tells us that somebody can suspend habeas, and that it can be done under (at least) some conditions.
The Dreamer: If the Constitution said that, then you’d be correct, and I’d be wrong, and Merryman would be about the Suspension Clause. The problem is that the Constitution does not say that. It says: “The Privilege <emphasis> of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
First Professor: That’s—that’s insane. You cannot mean that. No one has ever even thought <emphasis> that the clause’s use of the word “privilege” changes its obviously intended meaning. The clause is about under what conditions habeas can be suspended, even if it leaves unclear who can do so.
Second Professor: OK, even if I accepted what you say (and I don’t)—who wins? Taney or Lincoln? Neither or both?
Third Professor: It’s worse than I thought. He’s an originalist and a textualist. Hang the witch, then burn him, and then scatter the ashes to the winds.
The Dreamer: Let me try to explain, <while raising his healthy hand> you think the clause is about habeas, and who can or cannot suspend and when. <lowers his healthy hand, and raises the withered hand> The clause is about who can suspend the privilege of habeas corpus and under what conditions the privilege can be suspended, not habeas itself.
First Professor: There is no day light between the common understanding of the clause and what you are saying. There is no conceivable distinction. You are just playing with words.
Second Professor: OK, if “privilege” is meaningful (and I don’t think it is)—who wins?
Third Professor: Stop encouraging him. You know he cannot be correct. He cannot possibly know the original public meaning—he cannot know it because it does not exist, and it never has existed. And even if it had existed at one time, he cannot possible lay claim to knowing it now. Just look at him—he’s just a dreamer.
The Dreamer: Every word in the Constitution is presumptively meaningful—that presumption carries even greater weight when the Constitution uses the language of the law and lawyers, as it does here. The Constitution is not prolix. This language would not have been added casually, and if added casually, if meaningless, it would have been removed by the Committees of Detail and Style. <The Dreamer turns his back to the audience> The hard part of our task is not recovering original public meaning, but convincing others that we have done so. Let us start with first principles.
[end of Scene 1]
Twitter: https://twitter.com/SethBTillman ( @SethBTillman )
My prior post: Seth Barrett Tillman, My Next Paper: Counting Framers & Counting Originalists, The New Reform Club (Aug. 10, 2016, 3:49 AM)
My paper on Merryman: Seth Barrett Tillman, Ex parte Merryman: Myth, History, and Scholarship, 224(2) Mil. L. Rev. (forthcoming circa Summer 2016) (peer reviewed)