Turner v. Williams, 194 U.S. 279 (1904)

MR. JUSTICE BREWER, concurring:

In view of the range of discussion in the argument of this case at the bar, I feel justified in adding a few words to what has been said by THE CHIEF JUSTICE.

First. I fully indorse and accentuate the conclusions of the Court, as disclosed by the opinion, that, notwithstanding the legislation of Congress, the courts may and must, when properly called upon by petition in habeas corpus, examine and determine the right of any individual restrained of his personal liberty to be discharged from such restraint. I do not believe it within the power of Congress to give to ministerial officers of final adjudication of the right to liberty, or to oust the courts from the duty of inquiry respecting both law and facts. "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." Const. Art. I, sec. 9, clause 2.

Second. While undoubtedly the United States as a nation has all the powers which inhere in any nation, Congress is not authorized in all things to act for the nation, and too little effect has been given to the Tenth Article of the amendments to the Constitution that

The powers the people have given to the general government are named in the Constitution, and all not there named, either expressly or by implication, are reserved to the people, and can be exercised only by them, or upon further grant from them.

Third. No testimony was offered on the hearing before the circuit court other than that taken before the immigration board of inquiry, and none before such board save that preserved in its report. Hence, the facts must be determined by that evidence. It is not an unreasonable deduction therefrom that petitioner is an anarchist in the commonly accepted sense of the term -- one who urges and seeks the overthrow by force of all government. If that be not the fact, he should have introduced testimony to establish the contrary. It is unnecessary, therefore, to consider what rights he would have if he were only what is called, by way of differentiation, a philosophical anarchist -- one who simply entertains and expresses the opinion that all government is a mistake, and that society would be better off without any.