The American Prospect: Trump Would Torch Magna Carta

[Dennis Donovan]

The American Prospect - Trump Would Torch Magna Carta

For centuries, the writ of habeas corpus—a fundamental protection against unlawful imprisonment—has remained a core fixture of democratic governance. Suspending it would defy the Constitution, but Trump is weighing his options.

by James Baratta
May 14, 2025

Under the Constitution and federal law, individuals may challenge the legality of their detention in a court of law by filing a writ of habeas corpus. It is perhaps the most important protection preventing state actors from arbitrarily tossing people in jail indefinitely. At its core, habeas corpus provides a structural ballast in the preservation of liberal democratic values, and extends to both citizens and noncitizens. In addition to being one of the few rights mentioned explicitly in the original body of the Constitution, habeas is one of the oldest rights in the Anglo-American common-law tradition, dating back to before the Magna Carta of 1215, and supported by hundreds of years of legal precedent.

On May 9, White House deputy chief of staff Stephen Miller said the Trump administration is “actively looking at” whether to suspend habeas corpus. According to Miller, “a lot of it depends on whether the courts do the right thing or not.” The offhand yet alarming comments come as the Trump administration continues to fight a losing battle in the courts, which have lodged a wrench in its mass deportation plans.

The Constitution specifies that the right of habeas corpus “shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it,” though it does not specify any procedure for doing so.

“The Great Writ,” as it is traditionally called, has been suspended four times since the ratification of the Constitution, each of them involving actual rebellions or invasions, which demonstrate the thorny practical and moral issues such situations create. For instance, as the National Constitution Center explains, President Abraham Lincoln unilaterally suspended habeas corpus in the early days of the Civil War in 1861, in response to threats against United States troops in Maryland that threatened to cut off Washington, D.C. One slave owner who had blown up important bridges was arrested and held without trial.

In response, Supreme Court Chief Justice Roger B. Taney, author of the infamous Dred Scott v. Sandford decision, ruled in his capacity as a circuit court judge (as justices were required to serve on occasion in those days) in Ex Parte Merryman that only Congress has the authority to suspend habeas corpus. Lincoln ignored the ruling, arguing that because Congress was in recess, allowing traitors to run free during open rebellion was senseless. It “can not be believed the framers of the instrument intended that in every case the danger should run its course until Congress could be called together, the very assembling of which might be prevented, as was intended in this case, by the rebellion,” he wrote in response. Still, Congress later approved of Lincoln’s action with the Habeas Corpus Suspension Act of 1863.

/snip

[bucolic_frolic]

1. Habeas Corpus Suspension Act of 1863

Congress is an ongoing example of group think and weak fish.

But on the bright side, that's where John Roberts belongs!

[rickyhall]

2. If we just hand Linden Johnson, instead of Micro Miky Johnson.