Writ of Habeas Corpus

“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.” Article 1, Section 9, Clause 2, US Constitution.

Preventing suspension of the Writ of Habeas Corpus is a limitation of the power granted to Congress; it is power denied to Congress except under extreme circumstances.

According to Jonathan Turley, J.B. and Maurice C. Shapiro Professor of Public Interest Law Director, Environmental Law Advocacy Center Executive Director, Project for Older Prisoners, The George Washington University Law School, writing for Heritage Foundation, the definition of habeas corpus is an “order by a common law court to require a person holding a prisoner to demonstrate the legal and jurisdictional basis for holding the prisoner. If there is no basis for holding the prisoner, the court will order the release of the prisoner”.

The words “habeas corpus” are translated “you have the body”. The “body” would be the person being held prisoner. In other words, if the court issued a writ of habeas corpus to you when you were holding a prisoner, you would have to bring that prisoner before the court and state why you were holding him captive. If the court did not see legal reasons, they would order you to release the person.

This was inherited from English law. It is procedural in character and defines no rights. The point of the “Great Writ” was to offer a person charged with a crime protection against illegal arrest and confinement. It is an important check on illegal use of power by the executive. In other words, it prevents the Executive Branch (President and company) from putting you in jail because you speak out or disagree with what is being done in government.

In Federalist No. 48, Alexander Hamilton says that the Writ of Habeas Corpus is necessary to protect against “The favorite and most formidable instruments of tyranny”.

This clause was originally in Article III of the Constitution. It was moved to Article I by the Committee of Style during the Constitutional Convention, suggesting that the suspension of the Writ of Habeas Corpus was viewed as legislative power. If Habeas Corpus were suspended, that would mean that you could be thrown in jail without cause, just for something like disagreeing with the governmental power or decisions.

President Lincoln suspended the Writ of Habeas Corpus because of the Civil War. This was because of rebellion, as in secession of the Southern States. There was fear that pro-Confederate mobs would not allow assembly of militias in places like Baltimore.

The famous law case associated with this period of history and illustrating the concept of suspension of the Writ of Habeas Corpus is called Ex Parte Merryman (1861). In this case, Merryman was imprisoned by military order at Fort McHenry (Baltimore) because he was believed to be involved in pro-Confederate activities. Supreme Court Justice, Roger B. Taney (acting as a federal circuit court judge) issued a Writ of Habeas Corpus because Merryman was illegally imprisoned. The General Cadwalader refused to obey the Writ because the President had suspended it.

Justice Taney cited Cadwalader for contempt of court and wrote an opinion of Article I, Section 9, stating that only Congress, not the President, had power to suspend the writ of Habeas Corpus.

President Lincoln ignored the ruling by Justice Taney. The case became moot in February 1862 when President Lincoln ordered the release of most of the people being held as political prisoners.

Since then, Congress has suspended the Writ of Habeas Corpus three times:
• South Carolina in 1871 to deal with Ku Klux Klan issues
• Philippines in 1905 because of a local revolt
• Hawaii during World War II

With national security issues after Sept. 11, 2001, the legal protections of the Writ of Habeas Corpus still exist. Congress has not suspended it. So, the ability to use the Writ is still available to “civilian and military prisoners claiming jurisdictional barriers to their continued detention or incarceration”, writes Jonathan Turley.

Article I, Section 9, Clause 2 allows we the people to deny the government the right to put people in jail and to hold them there without bringing charges, except in times of rebellion or invasion that could challenge the public safety.

We the people get protection from being jailed and held without explanation or reason.

References:
http://en.wikipedia.org/wiki/Ex_parte_Merryman

http://www.heritage.org/constitution/#!/articles/1/essays/61/habeas-corpus

Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950

McClellan, James. Liberty, Order, and Justice. Indianapolis, Liberty Fund, Inc., 2000

That Crazy Little Thing Called Law

As discussed in my previous post, the Commerce Clause has changed in meaning and scope over the years since it was written. In order to take the Commerce Clause back to the Original Intent, we would have to repeal the New Deal, Great Society, and a vast amount of federal legislation and regulation that has been put in place over the last 2/3rd’s of the 20th Century.

Constitutional language varies in level of abstraction or generality. Some language is more concrete, and some is less concrete. The original definition of interstate commerce was the buying and selling of goods between states. The definition now includes the power to directly regulate labor, manufacturing, agriculture, and industry. Over the years, the Courts have expanded the Commerce Clause to include all of these activities.

According to Bork and Troy in an Internet article called, “Locating the Boundaries: The Scope of Congress’s Power to Regulate Commerce”:
“In generally ascending order of breadth, various writers and Justices have defined “commerce” as:
1. The trafficking and trading of economic commodities
2. The trafficking and trading of economic commodities and the modes of their transportation
3. The trafficking and trading of any kind of commodity and the mode of its transportation
4. The movement of any thing or any person and its mode of transportation
5. Economic activity that substantially or causally impacts on the trafficking, trading, or transportation of commodities
6. Any human activity or other phenomenon that has any ultimate impact on activities in more states than one”

From the time of the Founding, Congress had little reason to address the Commerce Clause for the next century. The Founders did not consider the activities that preceded trade to be part of commerce (manufacturing, agriculture).
Alexander Hamilton, in Federalist 12, states, “”Could that which procures a freer vent for the products of the earth, which is the most powerful instrument in increasing the quantity of money in a state – could that, in fine (commerce), which is the faithful handmaid of labor and industry…”

John Marshall

In 1824, under the John Marshall Court, the case of Gibbons v. Ogden was heard. This case involved a conflict between two steamship companies. The two lines wanted to travel between New York and New Jersey. The question was whether “commerce” included navigation. The court concluded that it did. Chief Justice John Marshall said that the way Congress decides to regulate commerce is completely at the discretion of Congress. This was an opening for a future broader interpretation of this clause.

From 1895 until 1938, the Courts experimented with different opinions of the Commerce Clause. By1938, according to David F. Forte, Professor of Law, Cleveland-Marshall College of Law, the court abandoned any serious role in monitoring Congress’ use of this enumerated power.

According to Bork and Troy, by the end of the 19th Century, the Courts had clarified three key aspects:
1. Although the lines between the state and federal powers remain fuzzy, the Court recognized that some power was concurrent (exist together).
2. In Asper Kidd v. Miln the Court decided that the State regulatory power as it and effects on interstate commerce was broad, but that the State would not be permitted to invade Federal power.
3. The term “commerce” was understood to include buying and selling, but that it did not include pre-commerce production. The pre-commerce production still remained in control of the State.

In 1895, US v. E C Knight Co declared that the Sherman Anti-Trust Act (limits cartels and monopolies) could not apply to monopolies in manufacturing. The case involved sugar production. The Court ruled that the federal government could not become involved in this production because it was local and therefore under exclusive control of the states.
The Court’s definition of manufacturing was stated as, “fashioning raw materials into a change of form for use…the buying and selling and the transportation indicated thereto constitute commerce.”

In 1903, the Court heard the case of Champion v. Ames. This case concerned the shipping of lottery tickets across state lines. The Court upheld the prohibition of the shipment of these tickets not because they were goods, but because they were objects encouraging immorality. This impinged upon the policing power of the States. This was the first example of the Courts prohibiting transportation of goods as well as controlling the exchange.
This was the first time that the Courts blessed Congressional regulation of interstate commerce for reasons that had nothing to do with preserving the free flow of goods and services across state lines.

In 1936, in the case of Carter v. Carter Coal Company, the Court still defined commerce as, “intercourse for the purposes of trade”. The Court decided that the Commerce Clause did not give Congress the power to regulate coal production before it entered into commerce. Other laws at the time were upheld if they had a substantive effect on interstate activity.

Until 1936, the Court decisions were straightforward, for the most part, and there was a distinction between commerce and manufacturing. In 1937, during the Progressive era, there was a change in the understanding of commerce.

In 1937, during the case of NLRB v. Jones and Laughlin Steel Corporation, Justice Cardozi held the more narrow view that commerce power could not reach out to areas that were indirect and remote. However, after his death, the new liberal Court in 1941 embraced an expansive interpretation of the law.

In 1941, in the case of US v. Darby, the Court ruled to uphold the Fair Labor Relations Act of 1936. This law had previously been the responsibility of the States to enforce. The Federal government was now in the role of regulating employment under the Commerce Clause. They prohibited shipments of products by manufacturers who did not comply with the Fair Labor Relations Act.

In 1942, the case of Wichard v. Filburn is considered another true turning point for the Commerce Clause. This case allowed the federal government to regulate economics. In this case, a wheat farmer was fined for growing wheat for his family without penalty. The reasoning of the Court was that growing wheat for his family would interfere with the interstate wheat market.

According to Forte, “By these means, the Court turned the commerce power into the equivalent of a general regulatory power and undid the Framers’ original structure of limited and delegated powers, as also observed by Justice Clarence Thomas in his dissent in Gonzales v. Raich (2005).”

At the close of the 20th Century, cases that were heard in the Rehnquist court were an attempt to expand the Civil Rights Act of 1964.

One example was US v. Lopez, 1995. This case was an attempt to criminalize possession of guns near a school (Gun Free School Zones Act). The Court struck this down because Congress does not have the power to control local school laws and because the action of Lopez did not interfere with interstate commerce.

Justice Rehnquist declared that the “commerce power extends to (1) the use of the channels of interstate commerce; (2) the regulation of instrumentalities of interstate commerce, or person or things in interstate commerce; and (3) a local commercial activity having a substantial relation to interstate commerce. Possessing a gun is not a commercial activity, even though gun violence affects commerce.”

In another example, In the US v. Morrison (2000), the Court struck down the concept that a victim could sue their attacker in a federal court under the Commerce Clause. This was part of the Violence Against Women Act. The Court ruled that non-economic activities cannot be connected to the interstate commerce.

John Roberts

On June 28, 2012, the Court, under Chief Justice John Roberts, ruled on the Affordable Care Act. The question before the court was in constitutionality of the individual mandate. The individual mandate is defined, as “is a requirement by law that certain persons purchase or otherwise obtain a good or service”.

The Court ruled that the mandate was constitutional. Further analysis of the ruling shows that there are two parts to the decision. The question before the Court was whether this mandate is constitutional under the Tax and Spend Clause as well as under the Commerce Clause.

In writing for the majority, Justice Roberts shows that the mandate is indeed a tax. He wrote:
“Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. That, according to the Government, means the mandate can be regarded as establishing condition – not owning health insurance- that triggers a tax- the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s power to tax.”

He was able, with his opinion on the mandate being constitutional under the Commerce Clause, to push back the overreaching power of Congress regarding the Commerce Clause. He wrote:
“The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.”
The Court refused to buy the government’s sweeping (and over-reaching) interpretation of the Commerce Clause.

And so, the debate over the vast and over-reaching powers of the Congress via the Commerce Clause continues to this day.

References:
Bork and Troy, “Locating the Boundaries: The Scope of Congress’s Power to Regulate Commerce”, http://www.constitution.org/lrev/bork-troy.htm

David F. Forte, Professor of Law, Cleveland-Marshall College of Law, http://www.heritage.org

http://www.wikipedia.com

Federalist Papers, Number 12

Online Dictionary

To Regulate Commerce

potcoplays.wikia.com

  “When those who are governed do too little, those who govern can- and often will- do too much.”
Second Inaugural Address as Governor of California, Sacramento, January 4, 1971

“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;” Article 1, Section 8, Clause 3

The few words of the Commerce Clause have a tremendous impact on the power of the Congress to regulate and control international, interstate, and Indian Tribe activity. Since the clause is so broad and undefined, it lends itself to attempts at Congressional overreach of power. Through the years, this clause has been interpreted and re-interpreted many times by the Courts.

Commerce is defined as the buying and selling of goods on a large scale and between different places.

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The first part of the clause “To regulate commerce with foreign nations” gives Congress complete and exclusive control over international commerce. This clause allows congress to pass import and export laws, to control the means of transportation of goods and services as well as communication about them, and to exercise control over the immigration process.

A positive aspect this power is that it helps to keep our commercial relationships with other countries uniform. As an example, it prevents individual states with seaports from setting their own rules, regulations, and fees.

Congress also deals with collection of tariffs on imported goods, protection from importation of diseased foods or other products, and prevention of exportation of materials that are necessary for production of goods within the United States (as in times of war).

We the people give Congress complete control over foreign commerce.

The benefit to we the people is:
• Government revenue and protection of home industries
• Safeguards to health
• Regulation of immigration
• Operation of seaports and airports
• Uniform regulation of international trade

The most controversial and often-discussed part of the clause is “to regulate commerce…and among the several States…” This is the regulation of interstate commerce; it goes hand-in-hand with Clause 1 of Section 8, the Spending (Tax and Spend) Clause. These powers have enabled our country to make the changes necessary to go from an agricultural nation to a large industrial nation. The powers enable the Congress to address problems on a uniform, national level.

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According to the Findlay’s in Your Rugged Constitution, the regulation of interstate commerce includes:
• All things that move among the states, including goods, persons, and words.
• The modes of transportation including railroads, airplanes, ships, express companies, and the waterways and airspace.

Interstate commerce refers to movement from state to state or through a state to get to another state. It also includes products that are made or mined in one state for use in another state. An example of this would be mining iron ore in Wisconsin for use in a steel mill in Illinois.

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Interstate commerce law also restricts the states in that Congress may challenge laws or taxes established by a state unconstitutional in the Courts if they interfere with interstate commerce or regulation of commerce.

The third part of the clause “to regulate commerce…with the Indian tribes;” gives the federal government the power to communicate with and oversee the activities of Indian Tribes. This allows for uniform treatment via the federal government vs. potential inconsistency of laws between the states.

We the people give Congress the authority to regulate interstate commerce and supervise trade with Indian Tribes.

The benefit to we the people is:
• Free flow of goods among the states without tariffs
• Maintenance and supervision of transportation by water, land, and air
• Prevention of the movement of harmful goods into the country
• Protection of Indians from exploitation

This post discusses the way the Commerce Clause was viewed in our country before the 1930’s. After that time, the Courts allowed the congress to expand the power of the Commerce Clause many times. Most recently, this concern was addressed in the Supreme Court decision on the Affordable Care Act. In writing about this decision, Chief Justice Roberts shows how he managed to open the way for a push-back of the broad-reaching Congressional power via the Commerce Clause. In my next post, I will discuss some aspects of the historic changes to the Congressional power of regulating commerce over the last 80 or so years.

References:

Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950

Hannaford, Peter. The Quotable Ronald Reagan. Washington, DC: Regnery Press, 1998

Webster’s Dictionary

US Constitution

Origination Clause

 

“All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other bills.” Article 1, Section 7, Clause 1, US Constitution

The Origination clause allows the House of Representatives to introduce any bills that have to do with revenue. Revenue means money collected by a government (as taxes).

The Founder’s intention in making the decisions for taxes and collection of revenue to come from the House was that the Representatives are the closest to the people who elected them. They should be the most aware of the needs of the people. They would also then be directly accountable to the people for any unpopular taxes.

James Madison

As James Madison wrote in Federalist 58:
“The House of Representatives cannot only refuse, but they alone can propose the supplies requisite for the support of the government…. This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect, every just and salutary measure.”

Some scholars feel that the fact that the Senate can make proposals for changes to these bills weakens the power of this function of the House.

The Senate in recent times has developed a procedure known as “gut-and-amend”. In this procedure, the Senate removes the content of the bill that was proposed and sometimes keeps the title. In this way, the content of the bill has come from the Senate instead of from the House. The content could have come via the Senate from appointees of the Executive branch (i.e. the Treasury Department).

An example of a bill that was put through “gut-and-amend” in the Senate was the Affordable Care Act, otherwise known as “Obamacare”.

Chief Justice John Roberts

Chief Justice John Roberts, in his opinion June 28, 2012 as to the constitutionality of the bill, opined that the mandate to purchase health insurance is indeed a tax.

“Such an analysis suggests that the shared responsibility payment may for constitutional purposes be considered a tax. The payment is not so high that there is really no choice but to buy health insurance; the payment is not limited to willful violations, as penalties for unlawful acts often are; and the payment is collected solely by the IRS through the normal means of taxation. Cf. Bailey v. Drexel Furniture Co., 259 U. S. 20, 36–37. None of this is to say that payment is not intended to induce the purchase of health insurance. But the mandate need not be read to declare that failing to do so is unlawful. Neither the Affordable Care Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. And Congress’s choice of language—stating that individuals “shall” obtain insurance or pay a “penalty”—does not require reading §5000A as punishing unlawful conduct. It may also be read as imposing a tax on those who go without insurance.”

There is a group called the Pacific Legal Foundation who is filing a lawsuit against the government over the Affordable Care Act saying that since the mandate is a tax, then the bill should have originated in the House and thus it is unconstitutional.

Please see the articles below for further information on the lawsuit based on the Origination Clause.

http://www.washingtontimes.com/news/2013/mar/31/obamacare-lawsuit-over-health-care-tax-will-test-c/?page=1

http://www.humanevents.com/2013/04/02/the-lawsuit-that-might-kill-obamacare/

Under Article 1, Section 7, Clause 1, we the people gave the House of Representatives the authority to originate bills to raise money via taxes. The House of Representatives have the closest connection to the people.

The benefit to we the people is that we can hold our Representative accountable and either continue their office in the House, or remove them if we feel they are not handling taxation as we think they should.

References:

Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950

http://www.heritage.org

http://www.wikipedia.com

Webster’s Dictionary

Senate’s Role in Impeachments

“One legislator accused me of having a 19th century attitude on law and order. That is a totally false charge. I have an 18th century attitude. That is when the Founding Fathers made it clear that the safety of law-abiding citizens should be one of government’s primary concerns.”
Ronald Reagan –Address to the Republican State Central Committee Convention, San Diego, September 7, 1973

“The Senate shall have the sole Power to try all Impeachments. When sitting for that purpose, they shall be on an oath of Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two-thirds of the Members present.” US Constitution Article 1, Section 3 Clause 6

Impeachment means to charge a public figure formally with misconduct in office. In order for a public official to be removed from office, two steps must occur. First, the House of Representatives must impeach (accuse the elected official of a crime {i.e. treason, bribery, perjury, obstruction of justice, etc.}) and then the Senate must convict the person and vote to remove the elected official from office. For further discussion of impeachment, please see the post “The Speaker of the House” from March 6, 2013.

In the Senate, the elected official who was charged with a crime will have a trial. The Senate will pass judgment. The Senators will take an oath of affirmation. The Vice President will preside as President of the Senate, unless the person being tried is the President of the United States. In that case, the Chief Justice of the Supreme Court will preside. This allowance was made initially to prevent a situation where the Vice President was presiding over a trial where the outcome could make him President. In more “modern” times, it prevents the Vice President, who would probably be sympathetic to the President on trial, from limiting the independence of the Senate in deciding such an important issue.

During impeachment trials, the Constitution requires that two-thirds of the Senate members be present. This indicates the importance of this vote. On other issues, the decision of the Senate may require two-thirds of the votes cast by the members who are present.

With Clause 6, we the people give the Senate the power to decide if elected officials have violated the trust of the people.

The benefit to us is that we should get serious, mature, and firm judgment from the Senate members. Additionally, we have the Chief Justice of the Supreme Court as an unbiased Judge when the President of the United States stands accused.

“Judgment in Cases of Impeachment shall not extend further than to remove from Office, and disqualification to hold and enjoy any Office of honor, trust, or profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to law.” US Constitution, Article 1, Section 3, Clause 7

This clause limits the penalties that the Senate may impose if they find the person guilty of a crime against the people. The Senate may remove the elected official from office and prevent that person from holding public office in the future.

The person who is convicted, however, may still be indicted, given a trial and punishment under civil or criminal law.

We the people give the Senate limitations on the sanctions that can be imposed on the person found guilty of a crime against the people.

The benefit to us is that elected officials are protected from severe punishments until their case is tried in the established courts.

References:

Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950

Hannaford, Peter. The Quotable Ronald Reagan. Washington, DC: Regnery Press, 1998

US Constitution

Wikipedia.org