What is the "Privilege" of the Writ of Habeas Corpus?

Seth Barrett Tillman, Merryman Redux: A Response to Professor John Yoo, 22 Chap. L. Rev. (forth. 2018–19) (manuscript at 4 n.12), https://ssrn.com/abstract=3213353: 

[start]

The Constitution states: “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.” U.S. Const. art. I, § 9, cl. 2 (emphasis added). President Lincoln’s order, issued on April 27, 1861, only purported to give General Scott authority “to suspend the writ of habeas corpus.” See 6 Complete Works of Abraham Lincoln, 1860–1861, at 258, 258 (John G. Nicolay & John Hay eds., N.Y., The Lamb Publishing Co. new ed. 1894) (reproducing Lincoln’s order); Seth Barrett Tillman, Ex parte Merryman: Myth, History, and Scholarship, 224 Mil. L. Rev. 481, 527 & n.116 (2016) (peer reviewed), http://ssrn.com/abstract=2646888. But in his July 4, 1861 message to Congress, Lincoln recharacterized his prior order as permitting suspension of the “privilege of the writ of habeas corpus.” 6 Complete Works, supra, at 297, 308–09 (emphasis omitted) (emphasis added). The difference between suspending the writ and suspending the privilege of the writ is night-and-day. See, e.g., Ex parte Milligan, 71 U.S. (4 Wall.) 2, 130–31 (1866) (Davis, J., for a unanimous Court) (“The suspension of the privilege of the writ of habeas corpus does not suspend the writ itself.” (emphasis added)); see also, e.g., Ex parte Benedict, 3 F. Cas. 159, 174 (N.D.N.Y. 1862) (No. 1292) (Hall, J.) (“Such a suspension may prevent the prisoner’s discharge; but it leaves untouched the question of the illegality of his arrest, imprisonment, and deportation. If these are unlawful, the marshal and others engaged in these arrests are liable in damages in a civil prosecution; such damages to be assessed by a jury of the country.”). It is not particularly surprising that these distinctions are no longer understood, as this and much else relating to the Constitution’s original public meaning was forgotten even as early as Lincoln’s day, and, in regard to a few constitutional provisions and language, sometimes far earlier. But it is curious how few even notice there is a puzzle to be solved and a past to be explained. But see William Baude, The Judgment Power, 96 Geo. L.J. 1807, 1853 n.255 (2008) (pointing out the same textual distinction regarding the “privilege” of the writ and the writ itself, but not resolving the distinction); but cf. Peter William Bautz, Lincoln’s Long Shadow: Recreating the Legal Debate over Habeas Corpus, 1861–1863 passim (Master’s Thesis, University of Virginia, Department of History, 2018), https://tinyurl.com/y96uy8ys (collecting some early authorities addressing the distinction).

My view is that suspension of the evidentiary privilege of the writ of habeas corpus precludes a court (or even an Executive Branch officer) from taking cognizance of a party’s pleading (or invoking) the writ (once granted to that party by that court or any other court of record) in subsequent contempt and enforcement proceedings (and, perhaps, in other collateral and ancillary proceedings). E.g., Merryman II (granting an order to serve an attachment for contempt where the defendant failed to produce the prisoner-plaintiff). Suspending the writ (as opposed to suspending the privilege of the writ) precludes a court from granting the writ, on the merits, in the first instance. E.g., Merryman I (i.e., an ex parte habeas order to produce a prisoner), or a Merryman III-like order (i.e., a habeas order to release a prisoner—albeit, of course, this did not actually happen in Merryman). When both the writ and/or the privilege of the writ are suspended, federal courts (having general federal question jurisdiction) will still have jurisdiction to determine if the suspension or suspensions themselves are constitutional—unless Congress has validly stripped the federal courts of jurisdiction to do so. The scope of Congress’s power to engage in such jurisdiction stripping is a complex subject, and one well beyond the scope of this Article. See generally Edward A. Hartnett, The Constitutional Puzzle of Habeas Corpus, 46 B.C. L. Rev. 251, 289 (2005). Recently, the Suspension Clause has received renewed interest and full-length treatment in books…but the meaning of the clause’s text…its actual words…they remain largely an undiscovered country. See generally, e.g., Amanda L. Tyler, Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay (2017). But see Baude, supra at 1853 n.255; but cf. Bautz, supra passim. I have put down some truly remarkable support for this position in another paper which this Response to Professor John Yoo is too small to contain. (I submitted a prior draft of this lengthy footnote as my abstract to the Tenth Annual Originalism Works-in-Progress Conference. See Tenth Annual Hugh & Hazel Darling Foundation Originalism Works-in-Progress Conference, University of San Diego School of Law (last accessed July 27, 2018), http://www.sandiego.edu/events/law/detail.php?_focus=66934.)

[end]

Seth Barrett Tillman, What is the “Privilege” of the Writ of Habeas Corpus?, New Reform Club (July 27, 2018, 2:41 AM), 

https://reformclub.blogspot.com/2018/07/what-is-privilege-of-writ-of-habeas.html. 

see also 
https://twitter.com/SethBTillman/status/1022733915168165888

Tillman on the Judicial Backlog and Transparency in the Irish Judicial System

Tillman-authored Materials on the Court of Appeal and Transparency in the Superior Courts of Ireland                                                                                  

Seth Barrett Tillman, Court of Appeal: ‘The new court has failed to meet expectations,’ Journal.ie (July 26, 2018), http://jrnl.ie/4144580, http://ssrn.com/abstract=3216200;

Seth Barrett Tillman, Op. Ed. (Thunderer), Court of Appeal failure should fuel reform of judiciary, The Times (Irish edn.), July 26, 2018, 12:01 AM, https://tinyurl.com/yb2qb8dc;

Seth Barrett Tillman, Letter to the Editor, Court Backlog, The Irish Times, July 23, 2018, 12:02 AM, at 13, https://www.irishtimes.com/opinion/letters/court-backlog-1.3572788;

Seth Barrett Tillman, The Court of Appeal Backlog, 35(15) Irish Law Times 206–08 (2017), http://ssrn.com/abstract=2996405;

Seth Barrett Tillman, Has the Irish Court of Appeal Solved the Judicial Backlog? Can it?, 34(14) Irish Law Times 210–12 (2016), http://ssrn.com/abstract=2816458;

Seth Barrett Tillman, Opinion Editorial, Court of Appeal just a new version of Supreme Court—only more costly, The Irish Times (July 28, 2014, 1:30 AM), Business & Innovation at 7, http://ssrn.com/abstract=2465554, http://www.irishtimes.com/news/crime-and-law/court-of-appeal-just-a-new-version-of-supreme-court-only-more-costly-1.1874746; and,

Seth Barrett Tillman, Opinion Editorial, Time to Open Courts and Let Justice Be Seen, The Irish Independent, August 22, 2012, 17:00 pm, at A14, http://tinyurl.com/bsy9789.

Quoted In:

Mark Tighe, Flanagan sees the appeal of more judges, The Sunday Times (Irish edn.), July 22, 2018, at 8, https://www.thetimes.co.uk/edition/ireland/flanagan-sees-the-appeal-of-more-judges-rbxgbdpxs;

Mark Tighe, Flanagan sees the appeal of more judges, The Sunday Times (July 22, 2018, 12:01 AM), https://www.thetimes.co.uk/edition/ireland/flanagan-sees-the-appeal-of-more-judges-rbxgbdpxs;

Willie Penrose TD (Labour Party, Longford-Westmeath), Dail Debate on the Judicial Appointments Bill 2016: Second Stage, Houses of the Oireachtas (Oct. 26, 2016), http://tinyurl.com/hqsvdeq (at 41:50ff) (discussing Tillman’s academic research);

Micheál Martin TD (Leader of the Opposition, Fianna Fail party, Cork South Central) in Dáil debates, Kildare Street (Oct. 18, 2016, 2:05 PM), https://tinyurl.com/jm4lbzs, http://tinyurl.com/zhnsw5w (quoting Tillman); 

Leading Article, The Legal Limit; Ireland’s courts system needs to be less like an academic common room and more like a busy branch of McDonalds, The Times (Irish edn.), Sept. 27, 2016, 12:01 AM, http://tinyurl.com/zymmkow;

Mark Tighe, Supreme Court clears five-year backlog, The Sunday Times, Sept. 25, 2016, 12:01 AM, at News, at 10, http://tinyurl.com/hfnxlt2;

Connor Gallagher, Court of Appeal backlog ‘could take over a decade to clear’, The Irish Times, Sept. 19, 2016, at 6, http://tinyurl.com/jdnqfkn;

Mark Tighe & Catherine Sanz, Half of cases overturned on appeal, The Sunday Times (Irish edn.), Sept. 18, 2016, at 1–2, http://tinyurl.com/hvl3x3x;

Mark Tighe & Catherine Sanz, How we scraped for data on appeal decisions, The Sunday Times (Irish edn.), Sept. 18, 2016, at 6;

Leanna Byrne, Backlog building at new Court of Appeal, The Sunday Business Post, Dec. 28, 2014;

Leanna Byrne, An Appealing Prospect? The new court aims to improve efficiency, but critics are doubtful, The Sunday Business Post, Nov. 2, 2014, at 20;

Mattie McGrath TD, Press Release, Court of Appeal Act will only entrench systemic delays, July 30, 2014;

Declan Lynch, Foresight beats hindsight in any race, The Sunday Independent, Oct. 13, 2013, at 14;

Niamh Lyons, Now let’s see real reform of Seanad, Irish Daily Mail, Oct. 7, 2013, at 6–7;

Colin Gleeson, How The Referendum Campaigns Unfolded: A brief history of the Seanad abolition and Court of Appeal referendums, The Irish Times, Oct. 5, 2013, http://www.irishtimes.com/news/politics/how-the-referendum-campaigns-unfolded-1.1551693;

Mike Dwane, Supreme Court case delays ‘unsustainable’, says Chief Justice, Limerick Leader, Oct. 3, 2013;

Mark Tighe, Jobs For The Boys? The imminent referendum on whether to establish an appeal court has sparked fears the Justice Minister will put supporters on the bench, The Sunday Times, Sept. 22, 2013, at 10;

Ruadhan Mac Cormaic, Shatter arguments for Court of Appeal ‘incoherent’, says law lecturer, The Irish Times, Sept. 16, 2013, at 6, http://tinyurl.com/mqcxqp9, http://ssrn.com/abstract=2326071; and,

Kieron Wood, Business of Law, Open Democracy Requires Free Media Access to Court Documents, The Sunday Business Post, July 14, 2013, at n21.

-------

Seth Barrett Tillman, Tillman on the Judicial Backlog and Transparency in the Irish Judicial System, New Reform Club (July 26, 2018, 5:43 AM), https://reformclub.blogspot.com/2018/07/tillman-on-judicial-backlog-and.html.

CONLAWPROF: A Post on Nativists and White Supremacists

Got it. It is all clear now.

You wrote: “It is a bald racial appeal to [Trump’s] white supremacist, nativist base.”

When you wrote the above, you were not saying that Trump’s base is made of “white supremacist[s]” and “nativist[s]”. Instead you were speaking to that part of Trump’s base which is “white supremacist” and “nativist”. It is really obvious from context—except that it is not. And your after-the-fact, clarification is very helpful. And we should also generously ascribe the best interpretation we can to your original and revised statements.

Of course . . . don’t do any of this close textual parsing of ambiguous language for Trump, and don’t look to his after-the-fact clarifications. That would be totally crazy. Makes no sense. Totally different. Of course, we should a hold a businessperson-turned-politician to a stricter standard than a [legal] academic. See Trump, Academia, and Hyperbole, http://reformclub.blogspot.com/2016/08/trump-academia-and-hyperbole.html. Makes complete sense.

By the way . . . throw me a bone here . . . you are now saying you were only speaking to part of Trump’s base. How big a part do you (and Professor X) think that segment of Trump’s base is? Does it include Trump’s Hispanic voters (maybe some 20% of the Hispanic vote) and his African-American voters (maybe some 10% of the African-American vote). And if it does not include them, exactly who is left in that base that you are calling nativist, etc? Who?

Throw me a bone. What precisely do you and Professor X (now) mean?

Seth

Seth Barrett Tillman, CONLAWPROF: A Post on Nativists and White Supremacists, New Reform Club (July 19, 2018, 6:05 PM), https://reformclub.blogspot.com/2018/07/conlawprof-post-on-nativists-and-white.html 

My Post on CONLAWPROF: my response to a discussion about removing Trump from office

Professor X:

I think you are confusing apples and oranges. 

What I said was that “removal was one thing”. We can have a debate about what constitutes good reasons for removal, and what political process best accommodates a needed removal. We can talk about whether we have reached a level of existential crisis such that a political actor could go beyond the regular bounds of the legal system to accommodate an exceptional situation. I believe that back in 1868, a Representative or Senator could have rightly voted to impeach and convict President Johnson (that is, consistent with his oath to uphold the Constitution). But the country survived Johnson and the Reconstruction programme blossomed under Republican majorities and subsequently under President Grant. So maybe I am wrong about the impeachment of Johnson. We can talk about whether we face a crisis of similar magnitude under Trump. 

But that debate (in my opinion) should not involve loose talk about concepts from the criminal law. Eg: “aid and comfort”. The only thing you’ll accomplish going down that road is to produce confusion in Congress, in the courts, and in the public mind. If you are lucky, it will start and end with mere confusion. If you are unlucky, such a strategy will yield speech crimes, speech monitors, and a speech police. The game is not worth the candle. 

Presidents are citizens too. They are allowed to have views—even controversial ones—including ones about which the President’s opponents disagree. If you are going to argue that the President’s expressing otherwise lawful speech about policy is a reason for removal, then I might add that that position is not precisely in tune with what a great many Americans believe about their political and legal inheritance. 

If your dispute with Trump and your call for his removal are based on policy (and his language about policy), rather than about discrete factual predicates amounting to legal violations, then you should eschew the language of the criminal law and push forward with debates (in this forum and elsewhere) about the prospective dangers you think Trump is creating or the harms he has already caused. But as I said, the country survived Johnson. To the extent that the argument against Trump is based on his saying stuff you think outrageous, I think the country will survive his talking big. I would also add that Trump has done little (as I see it) which substantially departs from his campaign statements—so a removal based on political disagreement about the expected consequences of policy is not going to be one with a strong democratic justification. 

Technical point: It may be that deporting foreigners is not a criminal punishment, but exiling/banishing/deporting Americans who are in the country legally would seem to me to amount to a violation of a 14th Amendment liberty interest. This brings up an important cultural divide in America today (and not just in America, but across the Western world). Many of Trump’s supporters see the elites as being indifferent between their fellow citizens and foreigners. I ask you not to prove them correct. 

Seth

Seth Barrett Tillman, My Post on CONLAWPROF: my response to a discussion about removing Trump from office, New Reform Club (July 17, 2018, 9:04 AM), https://reformclub.blogspot.com/2018/07/my-post-on-conlawprof-my-response-to.html. 

Poland's Judicial Crisis: My Post on CONLAWPROF

I am just going to note that many societies have had disputes about how best to manage and appoint an independent judiciary. Perhaps the most well known such incident in the U.S. involved the 1801 Judiciary Act, Adams' midnight judges, the Repeal Act, and the 1802 Judiciary Act--culminating in Stuart v Laird (1803), which (according to the standard histories) upheld the power of Congress to abolish lower federal courts notwithstanding that the judges on those courts had good behaviour tenure. 

A less well known American incident involving the manipulation of the courts by the elected government took place during the Civil War...when Congress abolished the (federal) Circuit Court for D.C circa 1863. Why was this done? To get rid of troublesome Judge Merrick. Merrick was an Article III judge, and Lincoln had already stopped his pay! Merrick was using habeas corpus to let people out of the army during war time! See Murphy v. Porter (1861). So his court (along with his colleagues) had to go to save the country. Of course the "people" Merrick sought to remove from the Army were apparently legally still children who had volunteered and lied about their age in order to enlist--thereby separating themselves from their parents, who brought habeas corpus actions to retire their children from further Army service. 

I have read lots of histories of these events--some contemporaneous and some modern. I don't remember anyone using the language of "purge". I must have missed that. And notwithstanding the intervention by the elected arms of the government manipulating the judicial system, our country went on nicely absent any apparent authoritarian turn. (Unless of course, you think Jefferson and Lincoln were authoritarians.)

Arrayed against the policy of the elected government of Poland (which ran for election twice on this policy) is: the EU Commission (not elected), the decisions of the European Court of Human Rights (not elected), the Council of Europe / Venice Commission (not elected), and any number of Polish judges -- all appointed by a process wholly insulated from democratic control. But I repeat myself. 

I cannot prove this, but I expect if during our domestic squabbles involving the elected arms of the government manipulating the federal courts (circa 1802, and again circa 1863, or even today in relation to court packing) a bunch of international organisations told us what to do, such interventions would not have been (and will not be in the future) very welcomed, and might very well have made (and will make in the future) normal political compromise less likely.

"Purge". If you want more Trump ... but I repeat myself.

Seth

Seth Barrett Tillman, Poland's Judicial Crisis: My Post on CONLAWPROF, New Reform Club (July 4, 2018, 1:49 PM), https://reformclub.blogspot.com/2018/07/polands-judicial-crisis-my-post-on.html.