The Republican senators flinched, and in last week's so-called "compromise" chose Bush over the Constitution. In doing so, they turned their backs on a rule of law that stretches back over nearly eight centuries to an epic moment in 1215 on a meadow by the River Thames in the United Kingdom.
The modern institution of civil and human rights, and particularly the writ of habeas corpus, began in June of 1215 when King John was forced by a group of feudal lords to sign the Magna Carta at Runnymede.
Two of the most critical parts of the Magna Carta were articles 38 and 39, which established the foundation for what is now known as "habeas corpus" laws (literally, "produce the body" from the Latin - meaning, broadly, "let this person go free or else give him a trial - you may not hold him forever with charging him with a crime"). The concept of habeas corpus in the Magna Carta led directly to the Fourth through Eighth Amendments of our Constitution, and hundreds of other federal and state due process provisions.
"38 In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.
"39 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 was radical stuff, and over the next four hundred years average people increasingly wanted for themselves these same protections from the abuse of governmental power that the feudal lords had gotten at Runnymede. But from 1215 to 1628, outside of the privileges enjoyed by the feudal lords, the average person could be arrested and imprisoned at the whim of the king with no recourse to the courts.
Then, in 1627, King Charles I overstepped, and the people snapped. Charles I threw into jail five knights in a tax disagreement, and the knights sued the King, asserting their habeas corpus right to be free or on bail unless convicted of a crime.
King Charles I, in response, invoked his right to simply imprison anybody he wanted (other than the rich feudal lords), anytime he wanted, as he said, "per speciale Mandatum Domini Regis."
This is essentially the same argument that George W. Bush makes today for why he has the right to detain people without charges for as much as their entire lives solely on his own say-so: because he's in charge. And it's an argument now supported on the record by these Republicans who have chosen to betray America's founding principles in exchange for peace with the White House.
Legal scholars had expected that George W. Bush's decree to the "renegade" Republicans would meet true resistance.
After all, King Charles' decree wasn't well received. The result of his overt assault on the rights of citizens led to a sort of revolt in the British Parliament, producing the 1628 "Petition of Right" law, an early version of our Fourth through Eighth Amendments, which restated Articles 38 and 39 of the Magna Carta and added that "writs of habeas corpus, [are] there to undergo and receive [only] as the court should order." It was later strengthened with the "Habeas Corpus Act of 1640" and a second "Habeas Corpus Act of 1679."
Thus, the right to suspend habeas corpus no longer was held by the King. It was exercised solely by the people's (elected and hereditary) representatives in the Parliament.
The third George to govern the United Kingdom confronted this in 1815 when he came into possession of Napoleon Bonaparte. But the British laws were so explicit that everybody was entitled to habeas corpus - even people who were not British citizens - that when Napoleon surrendered on the deck of the British flagship Bellerophon after the battle of Waterloo in 1815, the British Parliament had to pass a law ("An Act For The More Effectually Detaining In Custody Napoleon Bonaparte") to suspend habeas corpus so King George III could legally continue to hold him prisoner (and then legally exile him to a British fortification on a distant island).
Now, the third George to govern the United States, 191 years later, isn't even bothering with the civilized step that King George III of England took, of asking Congress for a temporary suspension of habeas corpus for a particular situation. Instead, he's demanding that his Republican colleagues give him the sole power to do away with habeas corpus altogether - and Bill Frist is insisting that they will push it through even over a filibuster.
It's a virtual repeat of Charles I's doctrine that a nation's ruler may do whatever he wants because he's the one in charge - "per speciale Mandatum Domini Regis."
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