Habeas corpus – an unlawful detention is a seemingly arcane term but one that is extremely important to the foundation of our Western legal tradition and our American legal and constitutional tradition.
Habeas corpus is a difficult idea to understand but it’s very simple at its base at its core.
It simply means that there has to be a reason why you’re being held by a government.
There needs to be a reason that you can’t be taken up in the middle of the night.
In the example justifying habeas corpus squirrel it away into a secret prison somewhere and be held without charge.
And this is one of the most fundamental rights and one of the most fundamental parts of any kind of legal system.
That imagines itself to be one based on justice and limited government and one based on popular sovereignty that the government must give some reason.
And if doesn’t have to be a good reason but it must give some reason that
State level in the antebellum period
State level in modern period
Federal level in the antebellum period
Federal level in modern period
Why it’s holding you? or
Why is it taking your life, your freedom away from you?
History Of Habeas Corpus in America
The Habeas Clause also suggests that habeas corpus is somehow potentially linked to war or extraordinary periods of conflict or unrest and that’s certainly the case and that’s how I want to give a quick overview of the development of habeas throughout American history is to break it into two parts:
- One is its extraordinary you steering during periods of war or crises.
- Second is actually more frequent use and abuses will come to see if habeas corpus is in its Ordinary use in day-to-day state level or federal level criminal and civil cases.
Although I won’t get into civil cases, habeas corpus applies in many different areas of the law from the death row inmate either in state prison or in federal prison to civil cases involving domestic issues about child custody.
So if it runs the gamut of American law but I’m going to break it up for you here into two different categories:
We’ll first talk about its ordinary use as I said every state had provisions that provided for habeas corpus so in the US history though as we’ve talked about in other articles.
We didn’t have the Bill of Rights incorporated against the states in the American history. We didn’t have the 13th, 14th or 15th amendments or any other subsequent amendments.
Obviously we also had a pretty strong commitment to States rights and in fact the very first Congress and the Judiciary Act of 1789 provided that federal courts and up & to and including the Supreme Court could issue writs of habeas corpus.
In other words somebody could challenge their detention through a writ of habeas corpus and if that would be the case.
If you file a writ because I detained you, a judge would command me to bring your body before him and give cause to why I should hold you if I have no cause.
And if I will have no cause at all then you will immediately set free
When we talk about federal habeas corpus further, there were very few federal crimes in the history of the United States.
Most crimes were on the state level.
So we had state habeas which varied considerably in US history.
More importantly those State habeas decisions say we have a judge in California here a habeas issue a habeas petition here it says well it’s all right to hold this person.
Well they have no recourse anywhere else the matter just ends there.
However much habeas the state provides is however much habeas you get in a sense it could not go to federal court until later and I’ll talk about that.
But habeas is used on the state level in the antebellum period is fascinating because we think of it as I began this lecture as the cornerstone of western legal tradition.
Blackstone called it a bulwark of our liberties, the great neff Acacius writ but in the antebellum period it was used for both noble and ignoble purposes good and bad purposes particularly with respect to slavery.
In the United States, for example in California if I stole your slave you could have you ask a judge to issue a habeas read to me to demand that I bring the body of that slave before the judge and show cause why I should own him or her and not you.
Certainly not the way that we imagined the great enough Acacius writ working similarly if a slave absconds or runs away from the plantation in the south and goes to the north.
What northern states would do as form of the proxy war of slavery?
The cold war of slavery before the Civil War, States that were sympathetic or had individuals were sympathetic to anti-slavery arguments would hold that slave and hide that slave.
Habeas was issued to show cause why that person would be holding someone and hiding somebody.
It was also the case that when federal marshals were committed to hunting down fugitive slaves.
State authorities would arrest federal marshals and federal courts would issue habeas writs to the state authorities to justify why they have national law enforcement officers in custody without cause.
What is the historical significance of habeas corpus?
So again it’s a fascinating developmental historical significance of how habeas operates in the antebellum period.
And habeas really is in a sense then an umbrella that serves as a proxy for other sorts of Rights that we recognize as important at any one particular time in American political history.
That’s why you could have good and bad uses of it. From our modern-day perspective we certainly think a good use of it would be to free someone who’s innocent and being held in some arbitrary way right but we would all probably think that a bad and ignoble use of the red.
This is for when I steal your slave and we use habeas the great writ of Liberty to not free this person or have a discussion about freedom but to send him two to one owner rather than another but that was the case because we recognize different sorts of Rights and different sorts of commitments to these ideas in the antebellum period but with the Civil War and I will get back to the Civil War when we talk about in war during and after the Civil War, there was a kind of a recommitment to national power and enlargement of national power.
At the end of the civil war during the period of reconstruction particularly when we passed the 13th, 14th, and 15th amendments, the same time that we were passing those Reconstruction Amendments.
Though the national government again characteristically in during this period of increased national power amends that original Judiciary Act of 1789 passed by Congress allowing basically for the first time the removal of State habeas cases to Federal courts and the idea here was that understanding and knowing that the ignoble and ugly history of the way.
Some southern states dealt with what we’re now Freedman african-americans that it wasn’t enough just to have these issues of habeas resolved on the state level they needed a more neutral national powerful forum to check these decisions.
So we had a period where there was an increase in State to Federal habeas petitions in the United States but just as reconstruction is a very sad story not because of the good things that the north and the national government tried to do in the south but it’s sad because the commitment to freedom and equality dies.
So quickly during Reconstruction I mean really by the 1820-1870 the commitment is waning considerably after grant’s presidency and so is the case that such as the case with habeas as well and it goes into a little bit of a decline and what decline we would see less cases going to from the State to the federal level.
On these fundamental issues of equal rights and basic fairness issues with respect to African-Americans are the kinds of minorities.
But it’s really in the 20th century in the 50s and 60s that habeas really comes alive again.
As I said at the beginning writ of habeas is really an umbrella right more of a procedural right that within itself encompasses the substantive rights and in the 1950s and 60s we of course have the Warren court revolution in the United States.
We have tremendous amounts of constitutional reform in areas from voting rights to education and especially to Criminal Procedure and habeas actually was the vehicle through which those rights were enforced.
It was really the carrot and the stick to get states to fall in line with the Warren courts.
Criminal Procedure due process revolution of the 1960s now the war on courts criminal process Criminal Procedure revolution was somewhat controversial so it’s not surprising then that from the 70s onward as the court became more conservative and more Republicans occupied the executive branch became president.
You would see maybe new commitments are different commitments to different sorts of rights or attempts to even roll back commitments to rights recognized in the 1960s and it’s not unsurprising then that those kinds of political coalition would go after habeas corpus and try to kind of rain its ability to remove cases from State to Federal courts because they knew how important and how pop potentially powerful the writ could be in recognizing a right or not recognizing your right and getting States to fall on fall in line on certain kinds of issues and not to and that is really the story of habeas.
Today, as well those who agree with the Criminal Procedure revolution of the 1960s once strong federal habeas corpus that can go into and receive from States.
These courts types of cases through habeas and to resolve them in ways that are consistent with their view of the criminal procedures of the Bill of Rights and tale.
And those who think that those procedures are too liberal or not strong enough one to decrease if not completely eliminate habeas corpus not federal habeas corpus for state prisoners.
Habeas Corpus in Wartime
The flip side of the Habeas chlorine is habeas during extraordinary periods of war or crisis and the most famous digs and the most famous example of this was Lincoln suspension of habeas corpus in US history.
During the Civil War we have to understand critics certainly pointed this out that the Habeas clause is an Article 1 constitutes the legislative branch.
In a sense kind of saying it was legitimate in the past as well there were some habeas issues in Civil War or War on Terror.
Obviously dealing with those in turned on the west coast Japanese internment but in just a few minutes i want to talk about habeas corpus in the War on Terror because those are the most recent cases and those are the cases in which i think we can really understand what the larger issues are with respect to habeas corpus.
The issue with habeas corpus is simply this with respect to the civil war are those who are deemed enemy combatants by the President of the United States and held at Guantanamo Bay camp x-ray entitled to challenge their status as enemy combatants through a writ of habeas corpus in federal courts.
Well, you should already have a feel for the potential power that habeas corpus has again if there’s no evidence there’s no reason that you’re holding someone they are to go free.
So that might be one thing if we’re talking about somebody who might be detained in a local town or something like that for any variety of reasons but someone who might be you know detained during war might seem more dangerous than that in that person and there might be some balancing that we might want to do about how far we want to extend habeas rights.
Well Congress feared that this was the case and because Congress has power to do this.
Article 3 of the Constitution allows the supra studen the appellate jurisdiction of Federal Courts.
So Congress knows that it might be the case that a certain number of people at Guantanamo may be having some kind of intelligence.
There might not be any basis to hold or to designate them as enemy combatants and therefore hold them in the way that we still do at Guantanamo sought to get rid of habeas corpus for those individuals and passed a series pieces of legislation that in part provided in a sense that no were prohibited habeas corpus writs from Guantanamo Bay detainees to federal courts.
The court said no, in the home Don case and then Congress came back and said oh we really meant it when we said no they are not to have habeas access we’re going to pass this law again but be more specific in our language.
In the first bill, there was an issue about those who were there at a certain time and then those who were there after for a period of time.
The second bill, the military commissions act was more specific that absolutely no federal court jurisdiction through habeas for these folks and then the court in boumediene though just a few years ago.
Now said no Congress cannot do this everybody at Guantanamo has the ability to challenge their designation as an enemy combatant not their ability not the government’s ability to hold them.
But their designation as an enemy combatant which allows the government to do different things to them that is you are able to challenge that categorization, that classification and to end here then we see all three branches here coming together not necessarily in a good way.
All three branches fight over power and access right during a time of war about issues as fundamental as your right not to sit in a jail on an island without any charges against you.
If that’s the case one of the most fundamental things you could imagine right and we see the system hopefully working out for the best.
At the end of the day the court’s decision whether you like it or not is a check against the other two branches of government and if that’s not something that’s good.
I would actually say it’s something that’s great.
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