The Power of Habeas Corpus in America: From the King's Prerogative to the War on Terror
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Despite its mystique as the greatest Anglo-American legal protection, habeas corpus's history features opportunistic power plays, political hypocrisy, ad hoc jurisprudence, and many failures in effectively securing individual liberty. The Power of Habeas Corpus in America tells the story of the writ from medieval England to modern America, crediting the rocky history to the writ's very nature as a government power. The book weighs in on habeas's historical controversies - addressing its origins, the relationship between king and parliament, the U.S. Constitution's Suspension Clause, the writ's role in the power struggle between the federal government and the states, and the proper scope of federal habeas for state prisoners and for wartime detainees from the Civil War and World War II to the War on Terror. The concluding chapters stress the importance of liberty and detention policy in making the writ more than a tool of power. Taken as a whole, the book presents a more nuanced and critical view of the writ's history, showing the dark side of this most revered judicial power.
that the defendant had been released to pledges (Duker, 21). These two writs were thus distinswritct, although they interacted. Jenks argues that respondendum developed into capias, then into cum causa, but there is doubt about this history (Mian, American Habeas Corpus, 7–8). Furthermore, as mentioned earlier, “habeas corpus” were common words used to summon people for a range of purposes – including defendants, sheriffs, plaintiffs in lawsuits, and even jurors. “In sum, the two-word command
This was its greatest deficiency. As Paul D. Halliday demonstrates 40 41 42 43 44 Crawford, 622. Crawford, 618–9. Crawford, 620. Crawford, 624 Church, 30. Parliament and the King 39 in Habeas Corpus: From England to Empire, Parliament’s habeas struggle against the king had very little to do with upholding liberty but rather reflected its own efforts at amassing and managing power. The biggest culprit behind unjust arrest in the centuries between 1500 and 1800 was not so much the Privy
English as the Americans practiced it. The American legislatures demanded it in proclamations and charters and then put it in their state constitutions when they threw off the yoke of the world’s premier imperium, and claimed independence, picking and choosing from the British system those principles that most complemented the libertarian spirit of their revolution. The colonists hailed their right to be free from unjust detention. As people of British stock, they claimed habeas corpus as a
Luther v. Borden, 48 U.S. 7 How. 1 1 (1849). 76 The Power of Habeas Corpus in America soldiers who committed crimes like rape were shot. Under these tribunals, 117 were convicted, mostly Americans. In September, changes designated normal crimes – rape, theft, assault – to the civil court system.62 A LIMITED REMEDY In 1830, the Supreme Court handed down the decision Ex parte Watkins,63 affirming that criminal conviction upheld by a lower federal court was generally a sufficient cause of
system, Johnson adhered to long-held constitutional views rather than entertain new power alignments.12 Competing power interests lay in the background of all of habeas history. So too did they lurk in the background of Reconstruction and the debates over habeas in the late 1860s. Moreover, the different branches had true ideological disagreements with one another. Johnson favored mercy and reconciliation toward the defeated South or at least its people. He believed they “needed peace and a