Show Notes

In this episode, Jason explains a few of the “terms of art” that are used in the Constitution in Article I, Section 9: Writ of Habeas Corpus, Bill of Attainder, & ex post facto laws. These terms are all authorities that are specifically denied to Congress with extremely limited exceptions. Tune in to find out why these are part of what Jason calls the Bill of Rights 1.0.

• U.S. Constitution, Article I, Section 9, Clauses 2 -3

[2]“[The Congress shall have Power]… To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”

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

• Records of the Federal Convention (see vol 1, vol 2, vol 3).
• Habeas Corpus translated means “You shall have the body” or “show the body”
• Magna Carta, paragraphs 28 – 29
  • “(28) No bailiff is henceforth to put any man on his open law or on oath simply by virtue of his spoken word, without reliable witnesses being produced for the same”
  • “(29) No freeman is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgement of his peers or by the law of the land. To no-one will we sell or deny of delay right or justice.”
• Charles Pinckney, South Carolina Delegate to the Constitutional Convention proposal:
  • “The privileges and benefit of the writ of habeas corpus shall be enjoyed in this government in the most expeditious and ample manner: and shall not be suspended by the Legislature except upon the most urgent and pressing occasions, and for a limited time not exceeding months.”
• Luther Martin, Maryland delegate to the Constitutional Convention in his written testimony to the MD legislature.
  • “As the State governments have a power of suspending the habeas corpus act in those cases, it was said, there could be no reason for giving such a power to the general government; since whenever the State which is invaded, or in which an insurrection takes place, finds its safety requires it, it will make use of that power. And it was urged, that if we gave this power to the general government, it would be an engine of oppression in its hands; since, whenever a State should oppose its views, however arbitrary and unconstitutional, and refuse submission to them, the general government may declare it to be an act of rebellion, and, suspending the habeas corpus act, may seize upon the persons of those advocates of freedom, who have had virtue and resolution enough to excite the opposition, and may imprison them during its pleasure, in the remotest part of the Union; so that a citizen of Georgia might be bastiled in the furthest part of New Hampshire, or a citizen of New Hampshire in the furthest extreme to the south, cut off from their family, their friends, and their every connexion. These considerations induced me, Sir, to give my negative also to this clause.”
• Luther Martin in his report to the Maryland House of Representatives
  • “Nothing could add to the mischevious tendency of this system more than the power that is given to suspend the Act of Ha: Corpus –Those who could not approve of it urged that the power over the Ha: Corpus ought not to be under the influence of the General Government. It would give them a power over Citizens of particular States who should oppose their encroachments, and the inferior Jurisdictions of the respective States were fully competent to Judge on this important priviledge; but the Allmighty power of deciding by a call for the question, silenced all opposition to the measure as it too frequently did to many others”
• Bill of Attainder – A legislative bill which specifically assigns guilt to a person without the benefit of a trial or jury and in some cases for crimes which are not already specified in statutes.  Bills of Attainder also could reach those not living or present for a crime (like family or acquaintances)  in order to strip them of life, liberty, or property.
• Ex Post Facto law – A law that is passed which makes previous actions a crime and punishable