Wednesday, September 12, 2007

More on Constitution and Habeas

I'm thinking that since the Suspension Clause appears in Article 1 of the Constitution, it is implicit that states acquiesced to federal oversight of prisoners through the habeas process.

We saw a long argument regarding incorporation of the Bill of Rights; that argument seems to have been largely resolved - they've been partially incorporated in piecemeal fashion.

So far as I know, there was no incorporation debate with regards to the actual Constitution. The limits of the Commerce Power have expanded and contracted over time, but there's never been any real assertion that the Commerce Power is itself violative of state's rights and federalism. To the contrary, the Commerce Clause was specifically included in the Constitution to rectify inadequacies in the Articles of Confederation.

Certainly it can be argued that the Commerce Clause has frequently been assaulted by parties wielding a Federalism club. While that may be true, I don't think there an many serious legal scholars that would argue that the Commerce Clause isn't liberally construed in favor of federal power by the modern court.

So why doesn't the Court's narrowing of Habeas raise eyebrows when considered in the light of the expansive view they've taken of Commerce Power? Why does the Commerce Clause get more federalism-sourced deference than the Great Writ?

Finally, and I know this course wasn't titled "Constitutional Law," but to the extent that originalists, strict constructionists, etc. hearken back to the understanding of the Framers when the Constitution was written... Well, is their narrowing of the Great Writ consistent with it's place in history in 1787?

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