What makes a constitution? Today it seems generally agreed that one essential element of a constitution is a frame of government—a pattern of rules laying out who is to exercise what powers and to what ends. The ends, of course, are “rights.” Americans in particular tend to think of a constitution as a single document courts “enforce” against the rest of the government in order to protect individual rights.
There is a real question, however, not only as to whether rights are the sum of constitutional purpose, but also whether a constitution dedicated to protecting rights can in fact protect those rights. As American courts continue to help the president and legislature ignore the laws and even decree new ones in contempt of constitutional provisions and limitations, it is worth considering what is necessary for rights to exist and matter. Today’s government acts in contempt of settled law in the name of a constitution reduced to a list of abstract, conflicting, and unattainable rights found at times in the text but more often in the imaginations of the judges. Thus, to take one contemporary example, the right of same-sex couples to public acceptance now trumps the right of Christians to avoid celebrating conduct they consider sinful. Even more important, however, both rights are examined anew each time a case comes before a judge, who may change his mind at any time as to what rights trump which, or even which continue to exist.
Still, most contemporary Americans cannot help but think of constitutions in terms of rights. So perhaps it will be useful to ask what rights are truly “fundamental” in the sense of being necessary for a decent, ordered existence. In addressing this question the example of the United Kingdom provides a useful example, because it often is said not to have a written constitution and yet is seen as a bastion of free government. What rights are essential to British constitutionalism?
In important ways it always has been untrue to say that the United Kingdom has no written constitution. Historically, the “unwritten constitution” of the United Kingdom has its roots in a number of important documents. These include the Magna Carta. Despite that document’s rejection by contemporary British elites as a mere antiquarian curiosity, its principles of religious institutional liberty and the rule of law laid the groundwork for constitutional government. At the same level of importance, though not so often noted, is the Habeas Corpus Act of 1679.
Like most important constitutional statutes, the Habeas Corpus Act was in its essentials a restatement of ancient, deeply held principles. The most basic of rights, philosophers and prisoners have agreed, is the right to go about one’s life, and that means freedom from arbitrary imprisonment. For centuries the common law of England (and, beginning in 1215, Magna Carta) had held arbitrary imprisonment unlawful and required that judges look into the reasons why a prisoner was being held; rulers were forbidden, in theory at least, from simply throwing their opponents in prison and forgetting about them (or worse). Royal abuses of this rule led, as with a variety of rights laid out in Magna Carta, to demands that ancient usage be made explicit through a written statute. Like many other rights, then, habeas corpus was in significant measure a product of tradition, but the Habeas Corpus Act of 1679 set forth an effective procedure for guaranteeing that prisoners (or third parties acting on their behalf) would be able to force their jailors to produce the prisoner (the Latin means, essentially “you have the body”) and justify his imprisonment.
The point of habeas corpus is to make certain that prisoners are held only if and when they are actively being prosecuted for some actual crime. A king (or president, for that matter) who can simply throw enemies in jail and leave them there is an arbitrary ruler who cannot himself be bound by any law because he may imprison anyone who seeks to use the law to bind him. The framers of the American Constitution recognized the importance of this right against arbitrary imprisonment, writing it directly into the Constitution’s first article, providing that “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.”
This provision can be inconvenient. Police shows on television regularly show seemingly guilty suspected criminals being “sprung” because the police were unable to gather sufficient evidence to have them indicted for a crime. President Lincoln found the provision so inconvenient that he on several occasions suspended it, in direct conflict with the Constitution, in the name of national security. Related issues are important and show the tensions between, for example, security and liberty—tensions not always well managed by our judicial system.
Today we witness President Obama seeking to release suspected (perhaps “highly likely” would be a better term) terrorists from the prison in Guantanamo Bay, Cuba, in defiance of specific legislation on the subject. Yet the late, much lamented Justice Antonin Scalia was himself a foe of specific elements of American policy regarding terror suspects. Merely shutting down Guantanamo out of a desire to make friends with the communist regime in Cuba, setting prisoners free to return to active terrorism (as already has happened) is hardly sensible, let alone morally or legally required. But Scalia demanded, in a powerful dissenting opinion in the case of Hamdi v. Rumsfeld (2004) that American citizens at least be either charged with some crime or released from Guantanamo Bay, or any other prison. As Scalia put it, “The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.”
Habeas corpus is in some ways a small thing. It does not guarantee justice or freedom from bad laws. It promises only prosecution by and under law. But this right is fundamental in the sense that it binds the government to rules and so protects citizens in disputes with that government from the brute force of chains and barred cells, or worse. Because of habeas corpus those who anger the government through their speech or conduct cannot simply be made to disappear; they must be charged with a crime under a known statute. They must be prosecuted for doing something the law openly said was illegal rather than simply made to pay for having the wrong opinions.
Without habeas corpus no other “rights” are important because the government will be able to quash any attempt to demand it respect them. But to maintain the benefits of this crucial right to law we must maintain the clarity of the law itself. Habeas corpus guarantees only that the government will charge the prisoner with violating some law. If the law is vague, inconsistent, or changing, the state may use it for its own ends, using it to effect arbitrary imprisonment. This is the danger of national security laws, but also of vague regulations and even of plea bargaining, where one’s status with the state, whether one has sufficient pull with regulators or prosecutors, determines whether and how harshly one is charged and potentially even punished. Thus a constitution that either does or is “interpreted” to require too complicated a structure of rules in the name of justice ends by making justice, like law, impossible. Too many rights, too haphazardly drawn and enforced, may leave us with no rights at all.
Bruce P. Frohnen is Professor of Law at The Ohio Northern University Pettit College of Law.
 It is at least arguable that the same logic and concern ought as a matter of policy to apply to foreign nationals removed from the zone of conflict. Those who conspire to commit murder on American soil (including the “soil” of American facilities overseas) ought to be prosecuted for these activities, rather than merely sidelined in holding cells. Whether this administration can be trusted to undertake such action, or should attempt to do so in contempt of legislation to the contrary, is, of course, a separate, deeply important matter.