Explanation of &quot;habeas corpus&quot; What body? And who has to have it? For what purpose? And then (it might be obvious once you've answered those questions, but please spell it out anyway) why is habeas corpus so central to the law?
It is short for habeas corpus ad subjiciendum, and refers to "the great writ" in Medieval Latin Praecipimus tibi quod corpus A.B. in prisona nostra sub custodia tua detentum, ut dicitur, una cum die et causa captionis et detentionis suae, quocumque nomine praedictus A.B. censeatur in eadem, habeas coram nobis ... ad subjiciendum et recipiendum ea quae curia nostra de eo adtunc et ibidem ordinare contigerit in hac parte. Et hoc nullatenus omittatis periculo incumbente. Et habeas ibi hoc breve. that is, We command you, that the body of A.B. in Our prison under your custody detained, as it is said, together with the day and cause of his taking and detention, by whatsoever name the said A.B. may be known therein, you have at our Court ... to undergo and to receive that which our Court shall then and there consider and order in that behalf. Hereof in no way fail, at your peril. And have you then there this writ. What you do with it is determine if a person is being legally detained, so the person holding the person must bring them to the court. So it is the body of the prisoner, the jailer does have it and the court must have it. However, it's not just producing a body, it refers to the requirement to explain the legal basis for the imprisonment. The purpose of the writ is to assure that individuals are not imprisoned illegally. Otherwise, people could be randomly swept up off the streets and directly imprisoned, with no legal recourse. This is a fundamental right recognized since the Magna Carta: No Freeman shall be taken or imprisoned, or be disseized of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land
Separate law? Is a separate law needed to prohibit people to whom Section 3 applies from taking office, or to remove such people from office? Griffin’s Case There is some reason to think so. In 1869 there was Griffin’s Case, 11 F. Cas. 7, 2 Am. Law T. Rep. U. S. Cts. 93; 8 Am. Law Reg. N. S. 358. This was tried by Chief Justice Chase, in his role as a Circuit Justice, not as a Supreme Court case. One Caesar Griffin was accused of shooting with intent to kill, tried before a Virginia state court, convicted, and sentenced to two years in prison. He then filed a writ of Habes Corpus claiming that his imprisonment was unlawful, because the jusge before whom he was tried, Hugh W. Sheffey, (in the words of Justice Chase): in December, 1849, [Sheffey] as a member of the Virginia house of delegates, took an oath to support the constitution of the United States, and also that he was a member of the legislature of Virginia in 1862. during the late Rebellion, and as such voted for measures to sustain the so-called Confederate States in their war against the United States; and it was claimed in behalf of the petitioner, that he thereby became, and was at the time of the trial of the petitioner, disqualified to hold any office, civil or military, under the United States, or under any state ... Several other people tried and convicted before Judge Sheffey in the circuit court of Rockbridge county, including some convicted of murder, filed similar Habes Corpus petitions, claiming that Sheffey was prohibited by Section 3 from holding office, and that therefore their convictions were invalid. Judge Sheffey had been appointed to the office of Judge after the end of the US Civil War by the reorganized government of Virginia, the one recognized as valid by the Federal Government. He was appointed before the ratification of the 14th Amendment. There was no dispute that he fit the letter of the group of prohibited persons in Section 3. Justice Chase wrote: The general question to be determined on the appeal from this order is whether or not the sentence of the circuit court of Rock-bridge county must be regarded as a nullity because of the disability to hold any office under the state of Virginia, imposed by the fourteenth amendment, on the person, who, in fact, presided as judge in that court. Justice Chase rejected the suggestion that all official actions by Sheffey and anyone in a similar position were automatically void and of no authority because of sectio0n 3. He wrote that: The proposition maintained in behalf of the petitioner, is, that this prohibition, instantly, on the day of its promulgation, vacated all offices held by persons within the category of prohibition, and made all official acts, performed by them, since that day, null and void. After pointing out that many of the offials of the reconstructed governments of the sothern states were withign the terms of the prohibition of section 3, Chae went on to write: If the construction now contended for be given to the prohibitive section, the effect must be to annul all official acts performed by these officers. No sentence, no judgment, no decree, no acknowledgment of a deed, no record of a deed, no sheriff’s or commissioner’s sale — in short no official act — is of the least validity. It is impossible to méasure the evils which such a construction would add to the calamities which have already fallen upon the people of these states. As a further reason not to construe section 3 as instantly and automatically removing all such officials, Chase wrote: Now it is undoubted that those provisions of the constitution which deny to the legislature power to deprive any person of life, liberty, or property, without due process of law, or to pass a bill of attainder or an ex post facto, are inconsistent in their spirit and general purpose with a provision which, at once without trial, deprives a whole class of persons of offices held by them, for cause, however grave. It is true that no limit can be imposed on the people when exercising their sovereign power in amending their own constitution of government. But it is a necessary presumption that the people in the exercise of that power, seek to confirm and improve, rather than to weaken and impair the general spirit of the constitution. ... Is there, then, any other reasonable construction? ... The object of the amendment is to exclude from certain offices a certain class of persons. Now, it is obviously impossible to do this by a simple declaration, whether in the constitution or in an act of congress, that all persons included within a particular description shall not hold office. For, in the very nature of things, it must be ascertained what particular individuals are embraced by the definition, before any sentence of exclusion can be made to operate. To accomplish this ascertainment and ensure effective results, proceedings, evidence, decisions, and enforcements of decisions, more or less formal, are indispensable; and these can only be provided for by congress. ... [I]t seems to put beyond reasonable question the conclusion that the intention of the people of the United States, in adopting the fourteenth amendment, was to create a disability, to be removed in proper cases by a two-thirds vote, and to be made operative in other cases by the legislation of congress in its ordinary course. Chase also note that, 2 months after the conviction of Griffin: in February, 1869, congress adopted a joint resolution entitled “a resolution respecting the provisional governments of Virginia and Texas.” In this resolution it was provided that persons, “holding office in the provisional governments of Virginia and Texas,” but unable to take and subscribe the test oath prescribed by the act of July 2, 1862 [12 Stat. 502], except those relieved from disability, “be removed therefrom;” and that this indicates that such people were regarded by Congress as having remained in office and not beign automatically removed. Griffin's Case seems to establish that some proceeding is needed to establish when a person falls under the exclusion rule of Section 3 of the 14th. In 1869 this was done by military order. In 1870 Congress passed a statute providing for criminal proceedings in such cases. This was repealed at the end of Reconstruction. Currently 18 U.S. Code § 2383 makes &quot;rebellion or insurrection against the authority of the United States or the laws thereof,&quot; a crime, and provides that anyone convicted of it &quot;shall be incapable of holding any office under the United States.&quot; This is not quite the same as the section 3 disqualification. One the one hand, it does not depend on a prior oath to support the constitution, and on the other it does not appear to ban holding a state or local office. But it shows how a similar law could be drafted by Congress. Legislative declaration Can a Congressional resolution, or a Federal statute declare that specific people have so engaged? This is probably prohibited as a Bill of Attainder, that is, a legislative declaration, without trial, that particular persons are guilty of particular crimes. Other Proceedings What proceedings would be needed to establish that a person had &quot;engaged in insurrection or rebellion&quot;? If a person subject to the section 3 disqualification was elected to either house of Congress, that house could refuse to seat such person, or expel him or her, as the Constitution permits. Most state legislatures have similar powers over the seating and expulsion of their own members. If a person is convicted under 18 USC § 2383 or any similar law, that person would clearly be excluded. Congress could pass a law establishing a special tribunal for determining when a person was subject to Section 3 of the 14th. But it has not done so. See also See also: this leglal blog post This article in Constitution Daily 14th Amendment's Section 3 Gets New Look as Democrats Weigh Measures Against Trump from the National Law Journal
I was initially going to vote to close this as a political rather than a legal question, however, I think there is scope for separating out the two dimensions. Our society makes a distinction between children and adults by giving them different legal rights, obligations and protections. If you think about it, there are a lot of things beyond sexual activity where the law does this: voting, drinking, military service, compulsory schooling, legal culpability etc. What things are subject to legal restriction is a political distinction. Now, there is no reason politically why these laws could not have been drafted to say "children can do this, adults can do that" and leave it to the courts to decide who is a "child" and who is an "adult". Biologically and emotionally people reach maturity at different ages so this is perfectly sensible. It might even be more just. However, justice is only one thing that we require of our legal system. Among the others are certainty and efficiency. Providing a bright line based on birth date gives certainty. Not requiring the court to deal with this on a case-by-case basis increases efficiency - justice is not free. This is why jurisdictions use age as a proxy for adulthood. As to why they choose any particular age, that is a political question.
In the US, Pennsylvania specifically, the court in Pettigrew v. Pettigrew, 207 Pa. 313 says that the law rec­ognizes property in a corpse, but property subject to a trust and limited in its rights to such exercise as shall be in con­formity with the duty out of which the rights arise. Larson v. Chase, 47 Minn. 307 likewise states in this country it is, so far as we know, universally held that those who are entitled to the possession and custody of it for purposes of decent burial have certain legal rights to and in it, which the law recognizes and will protect. Indeed, the mere fact that a person has exclusive rights over a body for the purposes of burial leads necessarily to the conclusion that it is his property in the broadest and most general sense of that term, viz., something over which the law accords him exclusive control. This is in contrast to the English legal tradition where the church has jurisdiction over a corpse, giving rise to a doctrine that a corpse is not property, citing a dictum from Lord Coke that It is to be observed that in every sepulchre that hath a monument two things are to be considered, viz., the monument, and the sepulture or burial of the dead. The burial of the cadaver that is caro data vermibus is nullius in bonis, and belongs to ecclesiastical cognizance; but as to the monument action is given (as hath been said) at the common law, for defacing thereof. This article provides further analysis and case citations, mostly in the US. The topic of body-ownership is the subject of a book-length analysis (ten Have &amp; Welie, Ownership of the human body). I think, according to this article, that under Islamic law, a body (living or dead) is not property, so an advance directive is not an absolute right.
The Magna Carta acted as an origin of many legal concepts of today, includng the English, and thus US, common law system. It clearly affected the Founders' views of government and was instrumental in creation of the US constitution. But no provision of the Magna Carta would be considered on its own to be valid US law.
Primary Theory I suspect there might not be a legal answer to this question. I have always suspected a sort of pseudo-intellectual elitism (or simple preference or carelessness) with passive voice sentence construction in general. I sense license writers have not (yet) escaped this general trend. I would love someone to prove this theory incorrect. But, alas, I doubt it will happen. Alternative Theory But because this is a Law Q&amp;A site, I will advance the following alternative theory. I don't believe it's correct. But I will advance it because it's the only possible explanation I can think of that might be even remotely based on legal reasoning... Maybe they are just basing their construction on the way the law itself is written? For example, if the law says, "Permission must be granted..." Then it would follow that a writer who wants to comply with the law might choose, "Permission is hereby granted..." instead of something like "The authors hereby grant permission..." or, as the OP suggested, "You may..."
There is no such law mandating this layout, nor is there any law permitting the defendant to demand a change to it. The arrangement seems most likely to have been driven by security concerns when courts began removing "the dock" and letting the defendant past the bar to sit with his attorneys. One court has also concluded that it was meant to assist the government "because it bears the burden of proof." It's of course impossible to prove a negative like this, but I'll note that Kenneth Lay's attorneys raised the issue in the Enron case, and they were unable to cite a single case saying that the defendant has the option to sit closer to the jury. If they couldn't find it, it probably doesn't exist. Meanwhile, the government was able to find several cases saying that the defendant does not have the right to demand a change, though it did not have any cases saying that the layout is mandatory. Instead, it described itself as "traditionally" having a right to the table. In that case, the judge ended up splitting the baby. Saying that there was "no law" to inform his decision, he sat the government next to the jury during its case, and it sat the defense next to the jury during its case. That was quite a bit more generous than the Seventh Circuit, which has rejected the jury-proximity argument as frivolous. So there are some cases addressing the issue, but I don't know of any case where a court has actually looked at the issue and given any real consideration to the due-process implications of the substantial empirical evidence suggesting that the party closest to the jury enjoys an advantage.
Why does the one country that promotes constitutional democracies above all others not have a judicial branch specifically for those matters? I know SCOTUS will hear these matters . . . I have had it mention that SCOTUS hears less than a hundred cases a year. Something which sounds incredibly low. A constitutional court profoundly limits the extent to which relief for violations of the constitution are judicially reviewable relative to the U.S. status quo. All courts from traffic court on up hear these matters and adjudicate constitutional issue in the status quo. It is also helpful to recognize that the U.S. Constitution regulates government conduct, not necessarily only though the device of determining that legislation is or is not constitutional. If a police officer stops you without having reasonable suspicion to do so, he has violated the U.S. Constitution, without regard to what the statutes of the state in question say. If evidence is seized without probable cause and this evidence is introduced in court over your objection in a criminal case, the government has violated the constitution and you are entitled (unless it was harmless error) to have your conviction vacated. If a tax collector seizes your property for unpaid taxes without first affording you due process to dispute their right to do so, the government has violated one of your constitutional rights. The Constitution imposes affirmative duties and obligations on the government, it does not merely invalidate laws enacted as unconstitutional. Most instances of constitutional adjudication involve government conduct and not the validity of government enacted statutes.