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It's A Gray Area: We are a nation of laws, not of men

November 20, 2010|By James P. Gray

What does it mean for us to be a nation of laws and not of men? This mainstay of our republic takes into account that each one of us, whether beggar or scion, or president of a bank — or of the country — is human, and thus vulnerable to human frailties. Thus our Constitution places us all in the care of an institution of laws that are (ideally) created with patience and reflection. Then those laws will, in turn, protect and defend us in times of peace or strife, but all while helping us to still maintain our sacred liberties.

And one of the most important protections our laws can provide is to protect us against the intrusions of our own government. That is where the critically important doctrine of habeas corpus comes into play.

Habeas corpus in Latin literally means "You are to hold (or arrest) the body." So a writ of habeas corpus is a challenge in court by the person who is being imprisoned. It has also been expanded to cover the type of imprisonment, or even the threat of imprisonment, as well as the custody of a minor child.

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The writ was a critically important part of the Magna Carta, which was forced upon King John of England by his barons on the fields of Runnymede in 1215, and historically serves as the important beginning of the rights of the governed against the sovereign. Since then the writ has been curtailed many times in Britain, but it has always staged a comeback.

The writ of habeas corpus was brought over to our country from England, and it buttresses our rights under the 5th Amendment to our Constitution, which provides that no person can be "deprived of life, liberty, or property without due process of law…."

This "Great Writ" has similarly been attacked in our country over time as well, including by President Abraham Lincoln, who tried to suspend it during the Civil War. In addition, most scholars now also agree that the U.S. Supreme Court abandoned its principle when it ruled in favor of the continued internment of thousands of Japanese-Americans during World War II.

But those historical facts underscore the necessity of being a nation of laws and not of men. Why? Because even our greatest leaders can succumb to the pressures of the moment, particularly our presidents, where the pressure to keep us safe during their "watch" must be crushing.

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