Story Published:
Apr 28, 2010 at 6:54 PM CST
Story Updated:
Apr 28, 2010 at 6:54 PM CST
ANDREW C. MCCARTHY -- SENIOR FELLOW, NATIONAL REVIEW INSTITUTE...
PART 1 OF 4 PARTS
Permission to reprint in whole or in part is hereby granted, provided the following credit line is used: "Reprinted by permission from Imprimis, a publication of Hillsdale College."
The following is adapted from a speech delivered in Washington, D.C., on March 5, 2010, in the "First Principles on First Fridays" lecture series sponsored by Hillsdale College's Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship.
Habeas corpus: "You shall have the body." It is known as "the Great Writ," an inheritance from the Magna Carta and British common law that was formally established in the American colonies in the 1690s.
When the Constitution was adopted in 1787, it became part of our fundamental law, enshrined in Article I, Section 9: "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."
The writ, in short, is a time-honored bulwark against tyranny.
It has become fashionable these days to invoke the "rule of law" as if it means the rule of lawyers--and in particular, the rule of judges.
But that has never been the term's meaning. In the U.S., the rule of law is embodied in the Constitution and resides in the statutes, treaties, rules, and regulations adopted pursuant to the Constitution.
The rule of law does not refer either to judges or to elected officials, who are themselves servants of the Constitution.
It has also become trendy in recent years, especially among our legal elites, to declaim piously that "the Constitution is not suspended in wartime."
And, of course, no true patriot believes that the Constitution could ever be suspended.
But the Constitution is not--nor has it ever been--the imposition of judiciall rule.
Indeed, the Constitution imposes strict limitations on the judicial power just as it does on Congress and the executive branch. It has never been the case that where judicial power ends anarachy begins.
