Wednesday, July 7, 2010

The History of Habeas, Part I: Why 1789 (?) Matters...

Hi everyone! Let me just start with a big thank you to Mary for the invitation to guest-blog over here. Part of why I was so excited when Mary asked is because my current academic project is very legal history-centered, even though I am--at best--an amateur legal historian. In particular, I'm in the midst of drafting an essay reviewing Paul Halliday's fantastic new book on the history of habeas corpus in England, and trying to explain both how and why the narrative he constructs of the writ in pre-revolutionary England looks so different from our conventional understanding of what the Constitution's Suspension Clause protects... [I introduce at least some of these arguments in this shorter piece recently published in the Iowa Law Review Bulletin.]

Before getting into the weeds, though (which I hope to do in future posts), I thought I'd start with the basic question: Why does (or should) pre-revolutionary English practice figure so prominently in our contemporary understanding of the Suspension Clause? Putting aside for the moment larger debates over originalism and the significance of fidelity to the Founders' intent, is there a specific reason in the habeas context why eighteenth-century English legal history matters?

The Supreme Court seems to think so. In INS v. St. Cyr, for example, Justice Stevens wrote that "at the absolute minimum, the Suspension Clause protects the writ 'as it existed in 1789.'” For that proposition, he quoted the Court's 1996 decision in Felker v. Turpin, which assumed that point without deciding it, in turn citing Chief Justice Burger's concurrence in the judgment in Swain v. Pressley (Burger's concurrence was the first time any Justice had even implicitly suggested that the meaning of the Suspension Clause should be derived from English practice at the Founding). Of course, not everyone agrees; Justice Thomas recently wrote that the Court has “steadfastly declined to adopt a date of reference by which the writ’s constitutional content, if any, is to be judged." [I'm not sure how one reconciles that with St. Cyr, but, c'est la vie.]

Leaving aside the oddity of relying on 1789 instead of 1787 (which seems to be because Burger's Pressley concurrence was talking about what was true of habeas at the time section 14 of the Judiciary Act of 1789 was enacted), these terse statements go a long way toward explaining why the history of habeas matters so much today. Because the Justices over the past decade have been unwilling to agree on anything more (or later) than 1789 as the constitutional floor for habeas, we've seen a veritable explosion of academic work and amicus briefs mining the history of habeas corpus in the years and decades leading up to the Founding. Halliday's book is by no means the first, but it is perhaps the most comprehensive. Moreover, as I'll explain in later posts, one of his most significant conclusions is that the high-water mark for habeas in England was right around 1790, which means that even the minimalist view of the Suspension Clause adopted by the Court in St. Cyr may encompass the common-law writ at its apex.

In the interim, though, I thought I'd open the conversation by flagging the "1789" point, and asking how, if at all, this ties into larger debates over originalism. If one assumes, for the moment, that Halliday's conclusions are all correct, does that settle the issue with regard to what the Suspension Clause protects? Or do scholars instead need to go a step further, and show that the Founders specifically understood the scope of the writ in England at the time they wrote the Suspension Clause? Put another way, can we assume that the Founders incorporated habeas as it existed, or can we only conclude they incorporated it as they understood it?

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