“The privilege of the writ of habeas corpus shall not be suspended, unless when, in case of rebellion or invasion, the public safety may require it. “ This is a restriction, and not a grant of power. In the debate on the adoption of the Federal constitution, in the Virginia convention, Patrick Henry held up the negative restrictions of the constitution as evidence that Congress were to have powers by implication, where there were no express grants to which they would be incidental. Gov. Randolph answered him by saying I persuade myself that every exception here mentioned is an exception not from general powers, but from particular powers therein vested. … I contend that by virtue of the power given to Congress to regulate courts, they could suspend the writ of habeas corpus. This is, therefore, an exception to that power. The general power over the habeas corpus, according to Gov. Randolph, which view was concurred in by all the friends of the constitution in that august body, arose from an express grant of power to Congress. The restriction upon the exercise of that power must necessarily have applied also to Congress, yet Mr. Lincoln gravely contends that this negative restriction upon Congress is a positive grant of power to the President. The suspension of this writ necessarily suspends a law of Congress, providing when, and how, and by whom it may be issued. June 1863, ex-Governor Morehead of Kentucky.
I cannot see how any American could take lightly the suspension of the Writ of Habeas Corpus. No other common law right is as important and meaningful since its adoption in the Magna Carta in 1215 and the first recorded usage of habeas corpus ad subjiciendum in 1305. Without it, the state has full power over a persons life without any redress.