The Great Writ, Bill Of Attainder, and Ex Post Facto Laws

Greetings Everyone!  Today we are going to look at clauses two and three in Article One, Section Nine of our Constitution.  They read;

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.”


“No Bill of Attainder or ex post facto Law shall be passed.”

First let’s look at clause two, the Habeas Corpus clause, also known as the “Great Writ” clause.  Habeas Corpus has been a pillar of western law since the signing of the Magna Carta in England in 1215.  The founders believed habeas corpus to be so essential to preserving individual liberty in America that they enshrined the writ in the very first article of our Constitution. Google defines habeas corpus as; “a writ requiring a person under arrest to be brought before a judge or into court, especially to secure the person’s release unless lawful grounds are shown for their detention.”  Writ is no longer commonly used in our vocabulary, so for those of us who are not as familiar with the definition, here it is; “a form of written command in the name of a court or other legal authority to act, or abstain from acting, in some way.”  Synonyms of this word would be indictment, citation, court order, etc. Habeas Corpus is an order by a court of law that requires anybody holding a person based on a crime committed to demonstrate a legal basis for holding that prisoner.  This clause guarantees the right that a prisoner shall have legal representation and a lawful basis for being held.  Alexander Hamilton in Federalist No. 84, stressed the importance of implementing such a law in the colonies, to, in his words, “protect against the favorite and most formidable instruments of tyranny.”  That is, to keep the government from holding a person indefinitely without showing any legal basis for their detention.

Abraham Lincoln suspended habeas corpus for the first time in American history in 1861, following riots and local militia action in Maryland and parts of the midwestern states.  Habeas corpus was suspended a second time during the Reconstruction period after the Civil War, in response to civil rights violations by the infamous Ku Klux Klan. During WW2 eight German saboteurs, including two U.S. citizens, secretly entered the United States to attack its civil infrastructure as part of Operation Pastorius and were convicted by a military tribunal.  The Supreme Court decided in that case that the writ of habeas corpus did not apply, due to the fact that they were unlawful combatants.

After the 1996 Oklahoma City bombing Congress passed the Antiterrorism and Effective Death Penalty Act, or AEDPA, which introduced for the first time one of the few limitations on habeas corpus.  In the act, a statute of limitations was set, stating that one year must elapse following conviction for prisoners to seek the writ.  The act was intended to, in its own words “deter terrorism, provide justice for victims, and provide for an effective death penalty.”

Now let’s look at clause three.  A bill of attainder is a legislative act declaring a person or group of people guilty of a crime and punishing them without a trial.  The effect of such an act would effectively strip a person of their civil rights that are guaranteed by the Constitution. An ex post facto law retroactively changes the legal status or penalties of actions that were committed before the enactment of the law.  It may criminalize actions committed when legal, or it may change the punishment for a crime by adding new penalties etc., or even alter the rules of evidence to make it likelier for the person in question to be convicted.  This clause in the Constitution prohibits such a law from ever passing.

I hope you’ve enjoyed today’s Constitution post!


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