Wednesday, April 13, 2016

Constitution Series Part 11: Article I, Section 9, Clauses 1 and 2

After Section 8 detailed all of the things Congress is explicitly allowed to do, naturally what follows is a list of what Congress is explicitly not allowed to do. You might consider this a sort of first-round Bill of Rights, though as you'll see it's kind of weird what limitations were determined to be more important than, say, freedom of speech.

Before I go into these limitations, though, I feel the need to point out that there is a void between Section 8 and Section 9, a space between the explicit rights and limitations of Congress that's filled with implicit rights and limitations that seem to contradict each other. Section 8 reads like a list of powers, but some read them as limitations; as if those are the only things Congress is allowed to do. Likewise, you can read Section 9 (and, by extension, the Bill of Rights) as a definition of Congress's rights; these are the things they definitely can't do, but everything else is fair game!

The thing is, it can only be one or the other. Is Section 8 a list of limitations, or is Section 9 defining Congress's rights? The fact that both sections exist makes it kind of confusing. In the early days they seemed to take the "Section 8 as limitations" route, while lately it seems we're more inclined toward the "Section 9 defines rights" route. What do you think?

Consider that as we go through these limitations and, later, the Bill of Rights.


Section 9
The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.
The Constitution goes to great lengths to talk about slaves and slavery without actually saying the words. At first glance, this clause doesn't seem like it has anything to do with slavery, does it? It's like they're just talking about immigration or something.

But, nope, this is talking about slavery. In a massive concession to the South, as if they knew it was only a matter of time before slavery was abolished, this clause in our Constitution prohibits ending the slave trade until 1808, two decades from the time the Constitution was written. Granted, this is just a limitation on the federal government's ability to end the importation of slaves. The "of the states now existing" part seems to allow for the possibility of individual states abolishing slavery if they so choose.

Many of the founding fathers were livid about this limitation, as many of them were abolitionists. After all, they just fought a war for freedom and equality. To found a nation on the idea of freedom while also condoning slavery was contradictory.

However, delegates from the southern states made it clear that the south simply would not accept the Constitution without such a limitation, so they compromised. The slave trade could continue, but only for 20 years, and in the meantime the selling of slaves could be taxed. At the very least, it gave abolitionists something to look forward to.

Sure enough, on January 1, 1808, Thomas Jefferson signed legislation that ended the importation of slaves. The legislation didn't abolish slavery (that was several decades down the line), and it didn't prohibit slave owners within the states from trading slaves among themselves, but the importation of slaves was over. A small first step, but a first step nonetheless.

Also, note how slaves are referred to in the text: they're not a slave; they're a "Person." A capital "P" "Person," lest we forget and start thinking of them as less than human. Lest we start thinking of them as property. When I read it, it sounds grudging. Go back up there and read the clause again, but this time imagine "Person" in all caps and italicized and you'll get what I mean. "PERSON," like they won't let you forget. "PERSON."
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.
Habeas Corpus is a common law concept that basically says that, if someone is being detained, the person doing the detaining should have to prove to a judge that they have both the right and a reason to detain a prisoner. It's a defense against unlawful detainment. The idea can be traced back to the 12th century at least.

You might consider this the first and most important guarantee to the American people; more important than anything in the Bill of Rights. After all, what good are those rights if the government is allowed to detain you for any reason anyway? This idea is so ingrained in our culture, as a human right so basic we don't even have to think about it, that when people are detained in other cultures that don't have this privilege we're shocked and outraged. It bothers us on a deep level.

That said, there are some instances in which the Writ can be suspended: "Rebellion or Invasion." There was considerable debate about this. After all, what if the government decides that any dissent constitutes an act of "rebellion" and allows the government to suspend the Writ and lock up those dissenters? In the end, though, these concessions were deemed necessary.

Also, who exactly can suspend the Writ in these cases? Congress? The President? Literally Anybody?

Given that the clause is in Article I, it's been generally accepted that only Congress can suspend the Writ of Habeas Corpus in these situations. This was put to the test during the Civil War, during which President Lincoln attempted to suspend the Writ on his own, only to face an outcry until Congress confirmed it.

The extent and power of the Writ has changed over the years, expanding and contracting to fit the will of the times. Since September 11, 2001, the Writ has become less powerful as the government has taken greater liberty in detaining prisoners without sufficient cause despite the fact that Congress has not suspended the Writ. (It has only done so a handful of times in our country's history.) We allow it because right now we're a nation gripped with fear, but eventually the pendulum will likely swing the other direction again.

Continue to Part 12: Article I, Section 9, Clauses3 to 5

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