What if the writ of habeas corpus has been guaranteed to the British since 1215 and to Americans since 1789? What if this encompasses the right of every person who is confined by the government against his or her will to compel the jailer to justify the confinement before a neutral judge?
What if this right is personal and individual and applies to all persons at all times? What if the right can be exercised by anyone who is arrested, whether it be for spitting on the sidewalk or murder? What if this right — to be free from an unjust confinement; to be free from arrest without trial — is one for which the Founders and the Framers fought the American Revolution?
What if habeas corpus is today recognized by all judges in the United States? What if judges actually stop court proceedings when a habeas corpus petition is received in order to hold a hearing and compel the government to lay out the evidence against the accused and justify his or her confinement, lest he or she spend one minute more behind bars than is lawful?
What if British monarchs and their subjects believed that the monarchy was divinely created? What if they actually believed that God the Father chose whomever was the king at a given moment to rule over them? What if they called this the divine right of kings? What if the divine right of kings enabled the monarch to write any law, prosecute any person and impose any punishment he wished for real or fanciful or even imagined crimes?
What if even this divine right of kings nonsense — once universally accepted and now universally rejected — had an exception to it? What if that exception was habeas corpus? What if even the most tyrannical and absolute of monarchs in Britain recognized and respected habeas corpus for their subjects in Britain?
What if British kings failed to recognize habeas corpus for the colonists in America? What if their governments arrested folks here and then brought them months later to London for trial? What if there was no mechanism for habeas corpus in the colonies to protect one from the wrath of the British government?
What if on the few occasions where habeas corpus was recognized, the colonial judges — who were dependent on the king for their jobs and their salaries — persistently ruled in favor of continued confinement, no matter how flimsy the evidence against the accused or how unlawful the charges?
What if Thomas Jefferson condemned this practice in the Declaration of Independence? What if the failure of colonial judges to recognize here in America the same rights recognized of Englishmen in Britain played a significant role in arousing the colonists to revolution in 1775 and 1776?
What if colonial revulsion at the refusal to recognize habeas corpus was so great that James Madison — who wrote the Constitution — insisted that this right be preserved in the Constitution? What if this was done before the Bill of Rights was added?
What if Madison recognized that in cases of invasion or rebellion, Congress might want to suspend habeas corpus until the rebellion or invasion subsided? What if Congress — in order to prevent frivolous or politically based suspensions of the right — defined invasion or rebellion as a state of affairs of such calamity that the federal courts are unable to conduct proceedings?
What if Abraham Lincoln suspended habeas corpus during the War Between the States in certain regions in the north so he could arrest his critics without trial? What if the Supreme Court ruled that under the plain meaning and recognized structure of the Constitution, only Congress — not the president — can suspend habeas corpus? What if, before the court invalidated Lincoln’s tyranny, thousands of folks were arrested and confined without charges, appearances before judges, trials or any meaningful opportunity to be heard — in the North where there was no invasion or rebellion?
What if Franklin D. Roosevelt did the same based on race during World War II and he claimed he did so based not on invasion or rebellion but on the fear of invasion or rebellion? What if — in one of its lowest moral rulings in history, at a time of anti-Japanese racial animosity in America — the court permitted the suspension?
What if subsequent Congresses and presidents and courts condemned this ruling and this suspension? What if Congress — 40 years later — compensated those still living and their offspring for these arrests without trial?
What if George W. Bush tried to suspend habeas corpus in the months following 9/11? What if on the day after the attacks of 9/11 in lower Manhattan the federal courts were able to conduct proceedings? What if the Supreme Court ruled against him? What if Congress tried to implement arrest without trial and the Supreme Court ruled that there was no invasion or rebellion of such chaotic magnitude that the federal courts could not conduct proceedings, and so it invalidated the suspension of habeas corpus?
What if here we go again? What if the White House announced last week that it — not Congress — is contemplating the suspension of habeas corpus, but only for certain persons?
What if the concept of arrest without trial in America is unfathomable? What if the cornerstone of American jurisprudence is the existence of an independent judiciary to which all persons may turn for relief when being pursued by the government, justly or unjustly?
What if suspending this right attacks the core values of America — fairness, equality, rule of law? What if the right to fairness from the government is the realistic expectation and historical lesson understood and expected by all in America?
What if arrest without trial transforms our democracy into a monarchy? What if this happens right before our eyes? What do we do about it?
To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
COPYRIGHT 2025 ANDREW P. NAPOLITANO
DISTRIBUTED BY CREATORS.COM
