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]
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)
3 comments:
The placement of the suspension clause in Article I leaves no doubts as to who may suspend the privilege. It's Congress. And there's no wiggle-room, that I can see, for presidential intercession.
There must be some useful distinction between the privilege, and a right, to some claim. A citizen is endowed with certain rights. An officer of the government is granted certain privileges. It is not clear to me what follows...
You are correct--there is a difference. An important one. I have discovered a truly remarkable proof which my time is too small to explain .... I will return to it as I have time, but right now, I am writing on the Madison-Pendleton letter from circa February 21, 1792. It is all about priorities.
Seth
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