Montana Viewpoint: To safeguard our freedoms
Jim Elliott
To fulfill President Trumps order to detain and deport people who are in our country illegally the Immigration and Customs Enforcement agency (ICE) has rounded up suspects and taken them to jails or detention centers, often without having been charged of having committed a crime.
It seems that to be considered a “suspect” it helps to have brown skin and dark hair and perhaps to look Hispanic. (It would be interesting to know how many blond-haired and fair-skinned people have been detained.) Some of them are held for days without being charged or being able to come before a judge. In many cases the arresting authority does not release the names of the detainees to their relatives.
Like it or not, the United States Constitution applies to everyone (except diplomats of foreign countries) who are physically within the boundaries of the United States. That means citizens and non-citizens alike. That means that the Constitutional provisions of “habeas corpus” applies to all persons in the United States whether they are here legally or illegally.
So, what’s all that mean? In England, before the 1200s, people could be locked up without any reason other than they had annoyed the King or a lesser authority. The detained person had no rights, no way to defend themselves, and no way of knowing how long they would be held in jail (which could be forever).
In 1215 a group of English noblemen confronted the King of England and compelled him to sign a document known as the Magna Carta. The Magna Carta was one of the first documents guaranteeing certain rights to the citizen. It read, in part, "no Freeman shall be arrested or imprisoned...except by the lawful judgment of his peers and by the law of the land." [Article 39 Of the Magna Carta].
This eventually became known as “habeas corpus” which meant that the government had to have a reason to lock someone up and that the person had the right to know what that reason was. Filing a writ of habeas corpus forces the authorities to allow the prisoner or detainee to come before a court to learn of and to dispute the charge under which he was detained.
Habeas corpus was included in the United States Constitution and is one of the few protections listed in the Constitution rather than in the Bill of Rights. In 1830 Chief Justice John Marshall wrote: “the writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action." Why? Because it is the individual’s means of holding the government accountable. Without it, they can throw away the key to your cell.
And why am I writing about this? Because President Trump’s Deputy Chief of Staff Steven Miller has said that the administration was “actively looking at” suspending habeas corpus in its quest to expel undocumented immigrants. [Fox News, May 9, 2025]. The Constitution says in Article I, Section 9: “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.”
It is unclear that the President has the power to do that. In 1861 President Lincoln suspended habeas corpus because the country was indeed in a state of rebellion, but his order was challenged in court by an imprisoned man named Merryman whose lawyer held that only Congress could suspend it. Congress quickly obliged by suspending it retroactively to the date of Lincoln’s order.
In 1871 it was suspended once more in South Carolina by President Grant because of the activities of the Ku Klux Klan against the newly freed blacks in the South, again, with the approval of Congress.
So, that’s the background, and I hope it never becomes the “foreground”. If it does, it means that anyone in America—you, me, a neighbor, a friend, a parent; all of them American citizens—could be arrested, locked up, and put away for however long the government wanted with no charges ever being brought and no chance to appeal to the courts for justice.
Currently, because those arrested are not American citizens many of us say, “so what”. But some of the arrested ARE American citizens who have also been denied due process. If it happens to one of us, it could happen to all of us.
If the Right to Bear Arms is important to you, your ability to exercise your right of habeas corpus should be right up there in importance.
Montana Viewpoint has appeared in weekly and online newspapers across Montana for
over 30 years. Jim Elliott served sixteen years in the Montana Legislature as a state
representative and state senator. He lives on his ranch in Trout Creek.