Democrats talk about bipartisanship and many no doubt feel committed to it, but the new majority party in Congress got elected in part by disagreeing with the legislation Republicans have passed. It now must be thinking about which pieces to reconsider. As it does, it should include the Military Commissions Act.

In enacting that bill, the president and Congress clearly contradicted a constitutional provision that says flatly: “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.”

The law stripped all of the 450 detainees at Guantanamo – not only the 60 or so now facing trial by military tribunal – of the right to ask a judge to rule whether the government has a legal basis for holding them.

Neither rebellion nor invasion is now present, although some administration attorneys have argued that the Sept. 11 attacks five years ago amounted to invasion.

This limited repeal of habeas corpus fails all three of the Constitution’s tests, said John D. Hutson, a former judge advocate general of the Navy and dean of the Franklin Pierce Law School in New Hampshire, as quoted by the Hartford Courant: “This is not about an invasion. It is about the embarrassment of holding people who, if they got to court, could show they should not have been held.”

The writ dates back to 1305, in the reign of British King Edward I. Its full name is “habeas corpus ad subjiciendum,” meaning “[You should] have-produce the body to be subjected to [examination].”

Courts have ruled that many rights under the Bill of Rights and the Fourteenth Amendment apply to “all persons,” not just U.S. citizens.

If there is any doubt about the broad sweep of the law, consider the reaction of John Yoo, a Justice Department lawyer from 2001 to 2003 and now a professor of law at the University of California at Berkeley. He said that the brief debate over the new law was “a struggle for power between the three branches of government.” He declared that “it is not the presidency that ‘won.’ Instead, it is the judiciary that lost.” He called it “a stinging rebuke to the Supreme Court.”

He referred to the high court’s 5-3 ruling on June 29 rejecting Congress’s earlier attempt to deprive Guantanamo inmates of the right to appeal to the courts.

The Supreme Court seems certain to be heard from on the issue. It may well uphold the plain wording of the Constitution. And it may well refuse to stand for this congressional restriction on its jurisdiction. And a new Congress might agree.