Andrew P. Napolitano on the American heritage of a legal right that was recognized by even the most tyrannical and absolute of monarchs in Britain.
The presidential helicopter lifting off from the South Lawn of the White House on May 1, 2025. (White House / Molly Riley)
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 [in America] 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 even 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?
“Suspension of the habeas corpus,” a political cartoon showing the symbolic character John Bull suspended by his feet between two columns labeled “Lords” and “Commons.” (Library of Congress, no known restrictions)
Lincoln’s Suspension
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?
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, was the senior judicial analyst at Fox News Channel and hosts the podcast Judging Freedom. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. To learn more about Judge Andrew Napolitano, visit here.
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Napolitano’s screed repeats the tired old chestnut of the monstrous tyranny of King George. But if you look up contemporary accounts you will find that every assembly at the many “liberty trees” that sparing up in the colonies began with a toast to the King. It was his ministers who offended the colonial aristocracy, because Parliament was finally exercising its legal authority to tax the colonies – to pay for the cost of their own defense. This came only after having nearly bankrupted the Exchequer protecting the colonies in the French and Indian War. And the tyrant Lincoln terrorizing his political opponents, please, that was Jeff Davis; 40% of southerners had voted against secession and their brutal, systematic suppression is a very dark page of American history. Lincoln was exercising his obligation, and very leniently at that, to deal with men who were actively in arms or in support of men in arms against the Constitution that he had sworn to defend , which is the very deliberately specific limited definition of treason in that document.
What if a public is so anesthetized that they do not notice, care or otherwise stand with a self-imposed powerlessness before the loss of this and other protections from tyrannical governance? The force to maintain protections from power has always come from the people’s recognition of loss and the potential and actual outrage.
While the history, from the Magna Carta and other even earlier attempts at rules of justice, is important as a device to help spur such outrage, it is rendered silent when the people no longer can hear it.
Hey Judge Nap –
Better be careful. You’re skirting the edge of hocus focus, and so your corpus might be on the verge of non-habeas’d!!
I am having a strange feeling of 1770s again. I ask why? Why is this happening, and for who? With the country now having been fully financialized, and the dollar destroyed outside the country. All that is left to colonize are We The People. : (
Manifest Destiny for the oligarchs….and the great many are the indigenous peoples.; a little more complicated than that, but basically the process that seems to be unfolding.
Correct me if I’m mistaken but didn’t Obama dispense with Habeas Corpus when he signed section 1021A in the NDAA?
This article is worthless. Those who know the facts and law applicable to the situations posed as questions by the author learn nothing from the reading the article. Those who do not know those things learn nothing from the article because the author does not bother discussing them. I just wasted my time reading this article. The author may think it clever to pose these “illustrations” as hypothetical questions but it serves no useful purpose to the reader.
@jim thomas:
do you think that lessons to be learned
should ALWAYS be SPELLED OUT so
as to leave no room for a reader’s own
imagination or interpretation?
i think one can read judge napolitano’s article
as a very strong indictment of those who CON-
sider themselves above the law and feel they can
bend, shake and break it at their whim and will.
an absolutist attitude i find scary and extremely
annoying, to put it mildly. will anyone stop them
from wrecking and/or rigging what’s left of what
was once supposed to become a true democracy?
I felt pretty much the same as you. This could have been an excellent opportunity to educate, instead, the good judge apparently gave in to a need to vent, choosing this peculiar form in which to do so. Anyway, that is my only explanation for this missed opportunity.
So you’re saying the only good article possible about stripping habeas corpus is one that lays out facts and applicable law? Well, I must say you’re entitled to your opinion, but the only thing I learned from your comment was about you, and since I will never meet you I must say it’s about as helpful as your take on Judge Napolitano’s article.
Andrew, please explain what part of our US Constitution allows foreign nationals… citizens of another nation… to invade America and then claim for themselves rights and privileges held by actual United States citizens?
The courts have ruled that the immigration issue is not an “invasion.”
hxxps://consortiumnews.com/2025/05/15/the-bogus-habeas-corpus-argument/
Your use of ‘invasion’ is misinformed and deeply prejudicial. In the most extreme form of honest rejection of those coming to this country without permission, they are a disorganized rabble moved by difficult circumstances to try to find the subsistence of life; that is not by any standard an invasion in either form or numbers…and certainly does meet the legal standard of invasion as presented in the constitution.
I wish you had read the excellent editorial by Judge Napolitano. The Judge doesn’t say the Constitution allows unlimited entry into the country. The Judge so brilliantly stated, once arrested you have the right to trial. Now if you are saying WE the People are not guaranteed a hearing before a judge. I would not live in that country. We the people are no longer making that guarantee provided and STATED in the Constitution.