The Dirty History of Habeas Corpus

By Madar, Chase | The American Conservative, May-June 2014 | Go to article overview

The Dirty History of Habeas Corpus


Madar, Chase, The American Conservative


The Power of Habeas Corpus in America: From the King's Prerogative to the War on Terror, Anthony Gregory, Cambridge, 432 pages

How powerful is the law? The laws of armed conflict--grandly and euphemistically called "international humanitarian law"--have never been better cultivated by so many jurists, yet somehow hundreds of thousands of Iraqis managed to die after our 2003 invasion, with a perhaps greater number perishing due to the economic sanctions between our Gulf Wars. The era since World War II has also seen an expansion of defendants' rights in criminal procedure, yet in the past 30 years the arc of our history has bent toward mass incarceration on a scale surpassed only by the Gulag.

None of this is lost on Anthony Gregory, a researcher at the libertarian Independent Institute whose recent book, The Power of Habeas Corpus in America, is a sophisticated biography of that most essential legal right, the "negative liberty" not to be arbitrarily imprisoned by the state. As Rubin "Hurricane" Carter, a boxer framed for murder and then freed on a habeas motion, said, "The Writ of Habeas Corpus is not just a piece of paper, not just a quaint Latin phrase. It was the key to my freedom."

But despite the central importance of habeas in Anglo-American law and legal folklore, Gregory's study is anything but a soaring law-school graduation speech about the majestic triumph of legal principle. Instead, Gregory's account of the "Great Writ" reveals its history is "characterized by politicization, unfulfilled promises, legal technicalities, power struggles and hypocrisy, as much as a story of liberation and justice." In fact, our hero H.C. frequently seems like a minor character in its own wide-angle biography, knocked around by war, social upheaval, and the immense centripetal force of state centralization.

Gregory begins his account in British Isles, where habeas was not bequeathed to free-born Englishmen by a legal Lady of the Lake but rather sprouted almost accidentally in the space between feuding court systems--the Norman crown in London versus the older common law system at work in the provinces. "The writ's core purpose was jurisdictional muscle-flexing," says Gregory of habeas' unglamorous early years. But the procedure, by which a prisoner could demand a review of his or her detention by a higher court, became a bulwark against oppressive state power.

Puritans and parliamentarians later demanded the codification of habeas to protect against arbitrary detention--yet then, as soon as these groups acquired executive power, they ruthlessly pruned back the writ's scope, a two-step they would not be the last to perform. In early modern British history, enemies of the state were rounded up on vague charges and stashed away in the Channel Islands or elsewhere on the British Empire's periphery, places where jurisdiction was contestable and lawyerly interference difficult. Sound familiar?

In colonial North America, the common law right of habeas corpus took deep root and was even enshrined in the U.S. Constitution. But though statutory codifications of rights are typically advertised as a triumphs for freedom, such legislative acts are almost always a curtailment of the right's scope, a scaling back of some of the unwritten powers the right formerly held. And the Constitution, for Gregory, entailed a lamentable reduction of habeas corpus as it furnished the central government with an "off switch" in the form of Article I, Section 9, which allows the writ to be suspended in time of national emergency.

Gregory therefore does not try overly hard to argue that Lincoln's suspension of habeas corpus--an action repeated by Jefferson Davis in the Confederacy--was in any real sense illegal, as many libertarian jurists have contended in the past. Perhaps because Gregory is a non-lawyer, he is refreshingly able to see laws as the prosaic, secular creation that they are: he refreshingly does not see the U. …

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