338
Scalia, J., dissenting
or classes of individuals. Suspension Acts had been adopted (and many more proposed) both in this country and in England during the late 18th century, see B. Mian, American Habeas Corpus: Law, History, and Politics 109-127 (1984)— including a 7-month suspension by the Massachusetts Assembly during Shay's Rebellion in 1787, id., at 117. Typical of the genre was the prescription by the Statute of 1794, 34 Geo. 3, c. 54, § 2, that " '[an Act for preventing wrongous imprisonment, and against undue delays in trials], insofar as the same may be construed to relate to the cases of Treason and suspicion of Treason, be suspended [for one year] . . . .' " Mian, supra, at 110. See also 16 Annals of Cong. 44, 402-425 (1852) (recording the debate on a bill, reported to the House of Representatives from the Senate on January 26, 1807, and ultimately rejected, to "suspen[d], for and during the term of three months," "the privilege of the writ of habeas corpus" for "any person or persons, charged on oath with treason, misprision of treason," and other specified offenses arising out of the Aaron Burr conspiracy).
In the present case, of course, Congress has not temporarily withheld operation of the writ, but has permanently altered its content. That is, to be sure, an act subject to majoritarian abuse, as is Congress's framing (or its determination not to frame) a habeas statute in the first place. But that is not the majoritarian abuse against which the Suspension Clause was directed. It is no more irrational to guard against the common and well known "suspension" abuse, without guaranteeing any particular habeas right that enjoys immunity from suspension, than it is, in the Equal Protection Clause, to guard against unequal application of the laws, without guaranteeing any particular law which enjoys that protection. And it is no more acceptable for this Court to write a habeas law, in order that the Suspension Clause might have some effect, than it would be for this Court to write other laws, in order that the Equal Protection Clause might have some effect.
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