Habeas Corpus
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Habeas Corpus

Rethinking the Great Writ of Liberty

Eric M. Freedman

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Habeas Corpus

Rethinking the Great Writ of Liberty

Eric M. Freedman

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Habeas Corpus is the process by which state prisoners—particularly those on death row—appeal to federal courts to have their convictions overturned. Its proper role in our criminal justice system has always been hotly contested, especially in the wake of 1996 legislation curtailing the ability of prisoners to appeal their sentences.

In this timely volume, Eric M. Freedman reexamines four of the Supreme Court’s most important habeas corpus rulings: one by Chief Justice John Marshall in 1807 concerning Aaron Burr’s conspiracy, two arising from the traumatic national events of the 1915 Leo Frank case and the 1923 cases growing out of murderous race riots in Elaine County, Arkansas, and one case from 1953 that dramatized some of the ugliest features of the Southern justice of the period. In each instance, Freeman uncovers new original sources and tells the stories of the cases through such documents as the Justices’ draft opinions and the memos of law clerk William H. Rehnquist. In bracing and accessible language, Freedman then presents an interpretation that rewrites the conventional view.

Building on these results, he challenges legalistic limits on habeas corpus and demonstrates how a vigorous writ is central to implementing the fundamental conceptions of individual liberty and constrained government power that underlie the Constitution.

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NYU Press
Part I


Introduction to Part I

As proud heirs to the traditions of English liberty, the framers of the Constitution felt very deeply the importance of habeas corpus as a weapon against tyranny. Hence the Suspension Clause: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”1
According to firmly entrenched wisdom, this provision was intended to protect only the right of federal—not state—prisoners to seek the writ in federal court.2 Thus, any such right that state prisoners may have by legislation3 is purely a matter of Congressional grace, and could be revoked at any time without violating the Suspension Clause.
As the Introduction indicates, I believe that this view is erroneous. The purpose of Part I is to correct it. The origin of the mistake is dicta inserted by Chief Justice John Marshall into Ex Parte Bollman.4 In that case, Marshall discussed Section 14 of the Judiciary Act of 1789,5 which (with the addition of clause numbers for ease in following the argument), reads:
And be it further enacted, [1] That all the beforementioned courts of the United States shall have the power to issue writs of scire facias, habeas corpus,[2] and all other writs not specially provided for by statute, [3] which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law. And that either of the justices of the supreme court, as well as judges of the district courts, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment.—[4] Provided, That writs of habeas corpus shall in no case extend to prisoners in gaol, unless where they are in custody, under or by colour of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify.6
Marshall’s opinion includes two key points. First, the proviso “extends to the whole section,”7—that is, clause [4] limits both the first sentence of the section (relating to courts) and the second (relating to judges)—with the result that the Act does not (except in very limited circumstances) grant the federal courts the power to issue writs of habeas corpus to state prisoners. Second, except to the extent affirmatively granted by statute, the federal courts lack the power to issue writs of habeas corpus.8
The provisions of the First Judiciary Act have long been given special weight in interpreting the Constitution.9 The idea that the statute might have violated the Suspension Clause by withholding the writ from state prisoners is accordingly thought to be most implausible. On the unexamined assumption that Marshall read Section 14 correctly, the conclusion has been thought to follow that the Clause did not extend to them. This chain of reasoning, however, contains three flaws, each independently fatal to reaching that conclusion.
First, Section 14, read intelligently, does not deny federal courts the power to liberate state prisoners by habeas corpus but instead grants it. Marshall’s contrary statement in Ex Parte Bollman made political sense but does not make legal sense.
Second, even if the statute did not affirmatively grant the power, the federal courts did not lack it. Common law and state law supplied the necessary authority.
Thus, to arrive at the conclusion that the terms of Section 14 show that the Suspension Clause did not extend to state prisoners, one would have to leap a third set of hurdles: to read the statute as an affirmative statutory preclusion of the writ, and then to demonstrate that, so read, the statute was constitutional. This last position passes the limits of plausibility; if in fact Section 14 not only failed to grant the federal courts habeas corpus jurisdiction over state prisoners but actually denied it, then the statute was indeed unconstitutional.
In the remainder of Part I, I seek to support these propositions as follows.
Chapter 2 recounts the history of the Suspension Clause, in Philadelphia and during the ratification debates. It concludes that there was a broad consensus that the Clause as written would limit legislative interference with the right that both federal and state courts were assumed to possess: to release on habeas corpus both federal and state prisoners.
I then take up Bollman. Chapter 3 lays out the legal, political, and factual background to the case, describing the arguments of counsel and the responses provided in Marshall’s opinion. It then analyzes the weakness of those responses, which have survived to misdirect modern students only because their practical impact proved to be so slight.
Chapter 4 sets forth the way that Bollman should have interpreted Section 14. In making the statutory argument that the proviso limits the power of federal judges, but not federal courts, it relies upon the statutory language, policy considerations, prior legislation, subsequent legislation, the real-world environment in which the legislation was passed, and the appropriateness of a construction that avoids raising doubts as to the statute’s constitutionality.
Chapter 5 rebuts the inferences that Bollman drew from the first sentence of Section 14: (a) that the Suspension Clause is nothing more than an exhortation to Congress to provide for the writ, so that (b) if Congress failed to do so, the federal courts would lack the jurisdiction to grant it. Reviewing the strong consensus of contemporary jurists concerning the powers the federal courts might exercise by authority of the common law and state law—a consensus that Marshall himself had joined just a few years before—the chapter argues that neither the framers of the Suspension Clause nor those of the Judiciary Act believed that the federal courts would lack habeas corpus powers in the absence of an affirmative statutory grant.
Chapter 6 discusses several previously unpublished rulings by lower federal courts during the early 1800s. In these cases, the courts—seemingly adopting legal theories consistent with the ones presented here—behaved as though Section 14 did not constrain their power to issue the writ of habeas corpus to state prisoners, and sometimes actually discharged such prisoners. Although the cases uncovered so far are too few in number to support any strong conclusions, they do tend to confirm my thesis.
Concluding Part I, Chapter 7 suggests that although—whatever the original intent—the Suspension Clause should protect the writ as it has evolved to date, legal and scholarly arguments would benefit by basing themselves on the most accurate available history. The Bollman-derived idea that the federal writ of habeas corpus was not originally available to state prisoners should be discarded.


The Origins of the Suspension Clause

A review of the progress of the Suspension Clause as it traveled from the Constitutional Convention in Philadelphia through the state ratification conventions and into the Constitution reveals two salient features: (1) the powerful attachment of all debaters to safeguarding the availability of the writ so as to protect the liberty of individuals against its possible wrongful deprivation by the government, and (2) an ultimate agreement among contemporaries that the Clause as written in Philadelphia accomplished that goal. It is hard to believe that this consensus among otherwise intense adversaries would have existed if they had known how Bollman would later read the Clause.

A. The Suspension Clause in Philadelphia

As the sources now stand, the history of the Clause at the Convention is sparse but clear.
On August 20, 1787, Charles Pinckney of South Carolina moved that:
The privileges and benefit of the writ of habeas corpus shall be enjoyed in this government in the most expeditious and ample manner: and shall not be suspended by the legislature except upon the most urgent and pressing occasions, and for a limited time not exceeding ——— months.1
The motion was referred without debate to the Committee of Detail.2
When the matter returned to the Convention floor on August 28, Madison’s notes record that:
Mr. Pinkney, urging the propriety of securing the benefits of the Habeas corpus in the most ample manner, moved “that it should not be suspended but on the most urgent occasions, & then only for a limited time not exceeding twelve months.” Mr. Rutlidge was for declaring the Habeas Corpus inviolable—He did not conceive that a suspension could ever be necessary at the same time through all the States—Mr. Govr. Morris moved that “The privilege of the writ of Habeas Corpus shall not be suspended, unless where in cases of Rebellion or invasion the public safety may require it.” Mr. Wilson doubted whether in any case a suspension could be necessary, as the discretion now exists with Judges, in most important cases to keep in Gaol or admit to Bail. The first part of Mr. Govr. Morris’s motion, to the word “unless” was agreed to nem: con: – on the remaining part; N.H. ay. Mass ay. Ct. ay. Pa. ay. Del. ay. Md. ay. Va. ay. N.C. no. S.C. no. Geo. no. [Ayes—7; noes—3.]3
Luther Martin of Maryland has left us further details of the debate on this last motion (in which he sided with the minority):4
As the State governments have a power of suspending the habeas corpus act [in cases of rebellion or invasion], it was said there could be no good reason for giving such a power to the general government, since whenever the State which is invaded or in which an insurrection takes place, finds its safety requires it, it will make use of that power—And it was urged, that if we gave this power to the general government, it would be an engine of oppression in its hands, since whenever a State should oppose its views, however arbitrary and unconstitutional, and refuse submission to them, the general government may declare it to be an act of rebellion, and suspending the habeas corpus act, may seize upon the persons of those advocates of freedom, who have had virtue and resolution enough to excite the opposition, and may imprison them during its pleasure in the remotest part of the union, so that a citizen of Georgia might be bastiled in the furthest part of New-Hampshire—or a citizen of New-Hampshire in the furthest extreme to the south, cut off from their family, their friends, and their every connection—These considerations induced me, Sir, to give my negative also to this clause.5
The Clause then moved to the Committee of Style and Arrangement, which substituted the word “when” for “where,” resulting in the text we have today.6

B. The Suspension Clause after Philadelphia

While the foregoing history is generally well known,7 recent years have given scholars increased access to materials illuminating the debates that took place once the Constitution was released to the public. But, in a development that we should have learned by this time to consider as less surprising than disappointing, the resulting greater volume of the historical record has not been accompanied by any greater insight into the specifics of original intention on matters of particular interest today—as those matters did not happen to be the ones particularly in controversy among the debaters of the time. That fact, however, is itself illuminating. The shared premises of the political opponents may in this instance teach us as much as their disagreements.
The participants were united in their belief that the maintenance of a vigorous writ was indispensable to the political freedom of individuals. Discussions of the Clause revolved about the adequacy of the Constitutional text to achieve the shared goal of liberty preservation.
Specifically, the attacks on the Suspension Clause as it emerged from the Convention fell into two groups.
1. Some debaters used the existence of the Clause to attack the Federalist premise that a Bill of Rights was unnecessary because the proposed federal government would have only those powers specifically delegate...

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