In a development that deserves serious attention from all Americans who cherish constitutional freedoms, White House Deputy Chief of Staff Stephen Miller recently announced that the administration is “actively looking at” suspending habeas corpus for certain detainees. On May 9, 2025, Miller justified this consideration by citing an “invasion” at the southern border.
For patriots who value our founding principles, this proposal warrants careful examination regardless of which administration proposes it or which group it targets.
What’s At Stake: The Great Writ
Habeas corpus- often called the “Great Writ”-requires government authorities to justify an individual’s detention before a court. It prevents indefinite imprisonment without charges, trial, or legal representation. The Founders considered this protection so fundamental that they specifically limited when it could be suspended in Article I of the Constitution: only in “Cases of Rebellion or Invasion” when “public Safety may require it.”
A Constitutional Thought Experiment
To understand the importance of habeas corpus, consider a hypothetical question: What if the defendants on January 6th were denied this constitutional protection?
Without habeas corpus, approximately 1,417 individuals charged in connection with the Capitol events could have been detained indefinitely with:
• No formal charges required
• No right to appear before a judge
• No ability to challenge evidence or the conditions of their confinement
• No access to attorneys
About 24% of these defendants faced obstruction charges. The Supreme Court’s June 2024 ruling that limited which January 6th defendants could be charged with obstructing Congress demonstrates precisely why judicial review matters. Without habeas corpus, these Americans would have remained imprisoned despite the Court’s determination that particular prosecutions were legally flawed.
Constitutional Principles for All Americans
Whether you believe the January 6th prosecutions were justified, the principle remains: in America, we don’t imprison people without judicial review. Period.
Many patriots rightfully express concern about government overreach and the erosion of constitutional protections. These same principles should apply consistently, regardless of who is detained or which administration is in power.
The Founders understood that unchecked detention power was the hallmark of tyranny, not limited government. The Suspension Clause limits when habeas corpus can be suspended precisely because it recognizes this danger.
Historical records show that the Founders deliberately placed strict constitutional limits on when habeas corpus could be suspended. Article I, Section 9 explicitly states, “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.” These limitations, invasion, and public safety were necessary for the Founders’ intent to prevent casual or arbitrary suspension.
The debates at the Constitutional Convention further demonstrate the Founders’ concerns about unchecked detention powers. When habeas corpus was discussed on August 28, 1787, James Wilson of Pennsylvania actively “opposed the suspension of the writ of habeas corpus” that Gouverneur Morris had proposed. Similarly, Charles Pinckney argued that the writ “should not be suspended but on the most urgent occasions, and then only for a limited time not exceeding twelve months.” These objections highlight the Founders’ wariness about granting the federal government power to detain individuals without judicial review.
Historical research confirms that the Founders understood habeas corpus as a safeguard against arbitrary detention. By the Founding period, the privilege had “come to encompass a general right of persons owing allegiance and thereby enjoying the protection of domestic law – most especially citizens – not to be detained without charges for criminal or national security purposes in the absence of a valid suspension.” The Constitution Center notes that the writ is “a crucial means by which a prisoner can obtain freedom.”
The Founders recognized that “the entire point of suspending the privilege was to endow the Executive with the power to arrest and detain such persons without criminal charges in times of war.” This extraordinary power was precisely why they imposed strict limits on invoking it. Throughout early American history, “it was virtually taken for granted that where a valid suspension was not in place – even during wartime – citizens owing allegiance who were suspected of supporting the enemy could only be detained on American soil under substantiated criminal charges.”
This historical evidence confirms that the Founders viewed unchecked detention power as contradictory to limited government principles and established constitutional safeguards accordingly.
Historical Perspective
Throughout American history, habeas corpus has only been suspended four times: during the Civil War, Reconstruction, the 1905 Philippine insurrection, and briefly after Pearl Harbor. Each instance involved extraordinary circumstances that genuinely threatened national survival.
Miller’s suggestion that current immigration challenges constitute an “invasion” warranting suspension represents an expansive interpretation of constitutional language that deserves scrutiny from those who value strict constitutional construction.
Why This Matters to All Patriots
True constitutional conservatives understand that dangerous precedents threaten everyone’s liberty when fundamental rights are suspended for any group. Once established, the legal precedents that permit government detention without judicial review for one group today become the very weapons that can strip away your freedoms tomorrow.
Our constitutional republic depends on maintaining key safeguards against government power, regardless of which party controls Washington. Justice Scalia noted, “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.”
When government officials consider suspending fundamental rights guaranteed since our nation’s founding, every American patriot should pay close attention. After all, the Constitution we defend protects “all persons within its jurisdiction,” regardless of political creed or conviction.
This sacred document embodies the promise we make when we pledge allegiance to our flag—“with liberty and justice for all,” a commitment that transcends the ballot box, the partisan divide, and the shifting tides of public opinion, reflecting the profound commitment to universal human dignity upon which this nation was established.
