Section 9. Clause 1. The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.
Powers Denied to Congress
GENERAL PURPOSE OF THE SECTION
This section of the Constitution (containing eight clauses restricting or prohibiting legislation affecting the importation of slaves, the suspension of the writ of habeas corpus, the enactment of bills of attainder or ex post facto laws, the levying of taxes on exports, the granting of preference to ports of one State over another, the granting of titles of nobility, etc.,) is devoted to restraints upon the power of Congress and of the National Government,[1432] and in no respect affects the States in the regulation of their domestic affairs.[1433]
The above clause, which sanctioned the importation of slaves by the States for twenty years after the adoption of the Constitution, when considered with the section requiring escaped slaves to be returned to their masters (art. IV, § 1, cl. 3), was held by Chief Justice Taney in Scott v. Sanford,[1434] to show conclusively that such persons and their descendants were not embraced within the term "citizen" as used in the Constitution. Today is interesting only as an historical curiosity.
Clause 2. 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.
HABEAS CORPUS
Purpose of the Writ
This section, which restricts only the Federal Government and not the States,[1435] is the only place in the Constitution where the writ of habeas corpus is mentioned. The framers took for granted that the courts of the United States would be given jurisdiction to issue this, the greatest of the safeguards of personal liberty embodied in the common law, and the Judiciary Act of 1789[1436] provided for the issuance of the writ according to "the usages and principles of law." At common law the purpose of such a proceeding was to obtain the liberation of persons who were imprisoned without just cause.[1437] While the Supreme Court conceded at an early date that the authority of the federal courts to entertain petitions for habeas corpus derived solely from acts of Congress,[1438] a narrow majority recently asserted the right to expand the scope of the writ by judicial interpretation and to sanction its use for a purpose unknown to the common law, i.e., to bring a prisoner into court to argue his own appeal. Speaking for the majority Justice Murphy declared that: "However, we do not conceive that a circuit court of appeals, in issuing a writ of habeas corpus under § 262 of the Judicial Code, is necessarily confined to the precise forms of that writ in vogue at the common law or in the English judicial system. Section 262 says that the writ must be agreeable to the usages and principles of 'law,' a term which is unlimited by the common law or the English law. And since 'law' is not a static concept, but expands and develops as new problems arise, we do not believe that the forms of the habeas corpus writ authorized by § 262 are only those recognized in this country in 1789, when the original Judiciary Act containing the substance of this section came into existence."[1439]