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Basic Constitutional Concepts
and certain other specified powers. Today, nobody is surprised that the
Federal government establishes rules for naturalization and bankruptcy,
punishes counterfeiters, grants copyrights and patents. Yet until the Constitution was ratified in 1788, the government of the United States performed no such functions.
Powers Denied to Congress
These great grants of power to the Congress had to be balanced by certain strong restraints on federal authority if the people of the thirteen
States were to be persuaded to ratify the Constitution. So Section 9 of Article I sets definite limits on what Congress may do.
The first-listed restraint, which seems odd to us today, is that Congress
might not forbid the importation of slaves until 1808. This temporary
provision is followed by guarantees of ancient rights and privileges derived from the British common law and constitution. The first of these is
the privilege of habeas corpus, a Latin term meaning ‘‘you have the body.’’
A writ of habeas corpus is an order issued by a court to an arresting officer, directing him to bring a prisoner before the court. If confinement
was improper, the judge will order his release. The writ of habeas corpus,
one of the most ancient liberties inherited from England, is wholly procedural in character and defines no rights. But it offers persons charged
with a crime one of their most important protections against illegal arrest
and confinement, and serves as an important check on the illegal usurpation of power by the executive. The writ has been used in England and
the United States to test the legality of virtually any confinement, including detention by military authorities. Under the Constitution, Congress
may suspend this privilege in times of rebellion or invasion. During the
Civil War, President Lincoln suspended the writ without Congressional
authorization, and was much criticized for his action.
The second guarantee is protection against bills of attainder. This is a
legislative act designed to punish a particular individual without a jury
trial. Congress can determine what conduct shall be considered a federal
crime, but no one can be punished until after a jury trial. This guarantee
is an important check on the illegal usurpation of power by the legislature. The prohibition was originally adopted in England to outlaw the