There is relatively little in the Constitution’s drafting history or ratification debates to illuminate the meaning of “the Privilege of the writ of Habeas Corpus.” Still, most jurists and commentators now seem to agree on the constitutional floor. As Justice Stevens put it in 2001, “at the absolute minimum, the Suspension Clause protects the writ ‘as it existed in 1789.’” And yet, even that limited point of consensus only begs a separate question: what was the scope of the writ in English law in 1789, the practice from which we presume the Founders meant to borrow?Vladek describes Halliday's thesis that:
In Habeas Corpus: From England to Empire, Paul Halliday, a University of Virginia historian, provides an answer to that question (and many others) by comprehensively surveying the scope of English habeas practice during the sixteenth, seventeenth, and eighteenth centuries. Rather than peruse the published reports of English judicial decisions or the works of contemporaneous treatise writers, Halliday went to the archives. His study examines every writ of habeas corpus ad subjiciendum issued by King’s (or Queen’s) Bench in every fourth year between 1502 and 1798, and also covers writs issued during intervening non-survey years of particular importance. The result of Halliday’s quadrennial review was a set of some 2757 writs from the survey years, along with over 2000 from other periods. From these numbers, Halliday conservatively extrapolated that King’s Bench issued well over 11,000 such summonses during the course of his study, as compared to the far smaller number of habeas decisions from the same era available via the English Reports.
Because of our modern preoccupation with the rights that individuals hold against their governments, scholars have long understood habeas corpus incorrectly as part of a framework of individual liberties, belying the extent to which the importance of the writ in pre-revolutionary England was much more about the courts than about the litigants.Halliday argues provocatively that “what constituted liberties was the result rather than the starting point of judicial decision-making,” and that the British Parliament's role was mainly to limit habeas authority rather than establish it.
Ironically, despite Justice Stevens' claim that the status of the "Great Writ" in 1789 provides the floor for its authority, Vladek says "perhaps the most radical way in which American practice has diverged from England’s has been the evisceration ... of the common law as a basis for habeas jurisdiction." Justice John Marshall in 1807 was the first to withdraw habeas authority from its more robust and wide-ranging common law roots to insist that “the power to award the writ by any of the courts of the United States, must be given by written law.” Writes Vladek, "In other words, the Article III federal courts—including the Supreme Court—were powerless to issue common-law writs of habeas corpus, and could only act pursuant to express statutory jurisdiction." The reviewer concludes that "Whether he misunderstood English history or misrepresented it, Marshall thereby perpetuated critically incorrect assumptions about the scope of common-law habeas corpus at the Founding."
I'm looking forward to reading Halliday's book myself and may have more to say on the subject after I've done so, but in the meantime Vladek's review offers some thought provoking fodder for anyone interested in the topic.
RELATED: On the usefulness and limits of federal habeas petitions
Habeas corpus is indeed a tragedy in the United States, and we could learn a lot from its common law traditions; I have read that habeas roots go back even further, to Roman law.
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