Last modified on 10 September 2016, at 00:25

Suspension Clause

The Suspension Clause permits suspension in times of crisis of the writ of habeas corpus so that government may imprison persons without evidence of wrongdoing.

The U.S. Constitution, Art. I, § 9, cl. 2, permits suspension of the privilege of writ of habeas corpus in limited circumstances:

"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."

Although this provision does not state that suspension must be effected by, or authorized by, a legislative act, it has been so understood, consistent with English practice and the Clause's placement in Article I.[1]

The Suspension Clause was by design a safety valve, the Constitution's only "express provision for exercise of extraordinary authority because of a crisis."[2]

President Thomas Jefferson unsuccessfully sought a suspension of habeas corpus to deal with Aaron Burr's conspiracy to overthrow the Government.[3] During the Civil War, Congress passed its first Act authorizing executive suspension of the writ of habeas corpus,[4] to the relief of those many who thought President Lincoln's unauthorized proclamations of suspension[5] unconstitutional. Later Presidential proclamations of suspension relied upon the congressional authorization.[6] During Reconstruction, Congress passed the Ku Klux Klan Act, which included a provision authorizing suspension of the writ, invoked by President Grant in quelling a rebellion in nine South Carolina counties.[7]

Two later Acts of Congress provided broad suspension authority to governors of U.S. possessions. The Philippine Civil Government Act of 1902 provided that the Governor of the Philippines could suspend the writ in case of rebellion, insurrection, or invasion.[8] In 1905 the writ was suspended for nine months by proclamation of the Governor.[9] The Hawaiian Organic Act of 1900 likewise provided that the Governor of Hawaii could suspend the writ in case of rebellion or invasion (or threat thereof).[10]


  1. See Ex parte Bollman, 8 U.S. 75, 4 Cranch 75, 101, 2 L. Ed. 554 (1807); Ex parte Merryman, 17 F. Cas. 144, 151-152, F. Cas. No. 9487 (CD Md. 1861) (Taney, C. J., rejecting Lincoln's unauthorized suspension); 3 Story § 1336, at 208-209.
  2. Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 650 (1952) (Jackson, J., concurring).
  3. See 16 Annals of Congress 402-425 (1807).
  4. see Act of Mar. 3, 1863, 12 Stat. 755
  5. e.g., Proclamation No. 1, 13 Stat. 730
  6. e.g., Proclamation No. 7, 13 Stat. 734.
  7. See Act of Apr. 20, 1871, ch. 22, § 4, 17 Stat. 14; A Proclamation [of Oct. 17, 1871], 7 Compilation of the Messages and Papers of the Presidents 136-138 (J. Richardson ed. 1899) (hereinafter Messages and Papers); id., at 138-139.
  8. Act of July 1, 1902, ch. 1369, § 5, 32 Stat. 692.
  9. See Fisher v. Baker, 203 U.S. 174, 179-181, 51 L. Ed. 142, 27 S. Ct. 135 (1906).
  10. Ch. 339, § 67, 31 Stat. 153.

See also