The Enemy Within
“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”
This writ — or written order — has developed over the years as the principal check on arbitrary state power, the original human right, allowing a person who has been arrested to challenge the legality of that detention. It is called the “great writ,” habeas corpus, or “produce the body so that it may be examined.” Habeas corpus was codified by the British Parliament in 1640 and 1679 and is one of a handful of common laws explicitly referred to and protected in the American Constitution. Alexander Hamilton, the most zealous exponent of executive power among the founding fathers, noted that habeas corpus provided “perhaps greater securities to liberty and republicanism” than any clause of the Constitution.
But as of Oct. 17 of this year, this great writ has been substantially weakened in the United States by the assent of both the presidency and Congress.
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