Eric M. Freedman, Hofstra Law, has posted the final two installments of a trilogy on habeas corpus. Both of the new installments are forthcoming in volume 8 of the
Northeastern Law Journal. We noted the first installment, published as
Habeas Corpus as a Common Law Writ, 46 Harv. C.R.-C.L. L. Rev. 591 (2011),
here. The second installment is
Habeas Corpus as a Legal Remedy:
...This part of the project argues that understanding habeas corpus during the colonial and early national periods—and ultimately reclaiming its power today—requires understanding that it was just one strand in a web of public and private legal remedies restraining abuses of government power. This article documents, with heavy reliance on previously-unpublished sources, the extent to which in the colonial and early national periods habeas existed within an elaborate structure of public and private mechanisms for constraining government actors.
Among the implications of the piece is that the view of the current Supreme Court that protecting public officials from unwarranted damages liability is a judicial role is thoroughly ahistorical. Only during the first half of the 19th century did the system for controlling governmental abuses of power evolve into the patterns that now seem natural and pre-ordained.
The third installment is
Habeas Corpus as an Instrument of Checks and Balances:
...This article, based heavily on previously-unpublished archival sources, argues the following:
“Separation of powers” differs from “checks and balances.” One protects individual liberty by allocating particular governmental powers to specific branches. The other protects individual liberty by having each branch restrain the others. Allocation of powers, enforced by judges, was an established feature of British government in the North American colonies.
Checks and balances, though, was a new idea and its acceptance was not possible until the judicial branch established its republican legitimacy. Judicial independence got off to a rocky start in the new nation both because the judges were so closely identified with the Crown and because the common law they administered had no plainly visible democratic source. The result was rampant legislative interference with judicial decision-making.
The notion of an independent judiciary that restrained the other branches was still aborning in 1807, when John Marshall stated in dicta in Ex Parte Bollman – quite wrongly as a matter of both British history and American constitutional law – that federal courts had no inherent authority to issue the writ of habeas corpus in the absence of legislation granting them that power.
In succeeding decades, the shifting theoretical and institutional structure of checks and balances came to rest. After a period of struggle on multiple fronts, the judiciary reclaimed its pre-Independence institutional independence from the legislature and solidified a cultural expectation that executive officers would comply with judicial decisions.
But the Supreme Court proved hesitant to repudiate Bollman’s dangerously flaccid view of the writ, notwithstanding that history and policy alike called upon it to take that step.
Finally, in 2008 in Boumediene v. Bush — a landmark ruling that put it on the right side of history — the Court recognized habeas corpus as an instrument for the enforcement of checks and balances, and the power to issue it as inherent in the Article III judicial role. This welcome development dispelled a distorted vision of the past that held the potential to cloud clear thinking in facing the problems of the future, including those posed by the struggle against terrorism.
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