Today the Ninth Circuit amended its earlier habeas decision in Irons v. Carey, and I was intrigued by the following dicta that Judge Noonan added to his concurring opinion:
The great writ exists, by negative implication, in Article I of the Constitution of the United States. It was initially understood to extend only to prisoners in the custody of the United States. It was extended by statute in 1867 to embrace prisoners of a state in custody in violation of the Constitution of the United States. It may be that the right to federal review of a claim of unconstitutional incarceration by a state is now to be considered an essential of due process just as the existence of federal courts to hear cases in numbers that it would be impossible for the Supreme Court to handle alone may be viewed as essential to due process. In each case, Congress exercising a power originally designed for application to the national government may lie under a constitutional obligation to exercise it more broadly for the preservation of the Constitution. In each instance, Congress would be called to enact a statute which is necessary.
Does anyone know what that is supposed to mean? It sounds like Judge Noonan is suggesting that the constitution requires Congress to pass particular kinds of statutes when necessary “for the preservation of the Constitution” — with the catch, I suppose, that Congress only knows when a statute is necessary “for the preservation of the Constitution” when a judge like John Noonan says so. Of course, it’s one thing to say that a federal constitutional right exists, and therefore that courts can entertain a claim absent legislation. That’s common enough. But it sounds like Judge Noonan is speaking of an affirmative obligation to enact a statute. Am I interpreting this passage correctly, and if so, am I wrong in thinking that this is a pretty radical idea? Unfortunately, Judge Noonan does not provide any citations in this passage.