August 20, 2013
We know many things about habeas corpus. We know that it goes back to the Magna Carta and that the U.S. Constitution affirmed this bulwark of Anglo-American liberty. We know that habeas prohibits jailing people without cause, and that it remained healthy throughout U.S. history, except during wartime, until George W. Bush’s 2006 Military Commissions Act. And we also know that in 2008, the Supreme Court guaranteed basic due process rights for Guantánamo’s inmates.
The trouble is that none of these things are true. Five years ago, I believed the conventional civil libertarian narrative and began writing a paper to criticize the Bush administration and its nearly unprecedented violation of this sacred right.
My research revealed that much of what I knew about habeas corpus was wrong, and that many well-intentioned people had a romanticized view of the great writ. I published my findings in my Independent Institute book The Power of Habeas Corpus in America: From the King’s Prerogative to the War on Terror, and I found that as with other idealized state functions, habeas corpus has an uneven history.
Indeed, habeas is a government power—specifically a judge’s power to summon and question a case involving detention—and judges have used it to centralize their own authority. About a century ago, legal scholar Edward Jenks controversially wrote: “the most embarrassing discovery [is that] the more one studies the ancient writs of Habeas corpus … the more clear grows the conviction, that, whatever may have been its ultimate use, the writ of Habeas corpus was originally intended not to get people out of prison, but to put them in it” [emphasis in the original]. Jenks oversimplifies, but his point certainly complicates the popular understanding.
The writ’s English origins are ambiguous, depending on whether we focus on the functional aspect—the power to oversee detention processes—or the linguistic. Habeas corpus means, “have the body,” and thirteenth century judges used such language to call forth witnesses and juries as well as prisoners. The Magna Carta guarantees against unjust detention, but does not contain the words “habeas corpus.” The common use of such words to defend a prisoner’s liberty came later. Even then, judges utilized the writ to monopolize power over lower jurisdictions.
When members of Parliament fought the king over despotic detentions, they championed an idealized writ, but this was wishful thinking, even disingenuous. Soon after Parliament beheaded King Charles in 1649, it proved itself just as tyrannical as the monarch, and jailed the opposition. The celebrated Habeas Corpus Act of 1679 was more administrative than revolutionary and contained loopholes.
In colonial America, habeas corpus arose from the bottom up. The legal community was informal. The common law that developed on this side of the Atlantic had a more organic development than in England, where it arose in the royal court system. In myth, Queen Anne gifted habeas corpus to Virginia in 1719, but Virginians had long observed it by then. The colonists, like their counterparts in Parliament, began romanticizing the Magna Carta and the Common Law for their libertarian elements.
American habeas corpus was originally decentralized. The Constitution of 1787 ruined this arrangement, centralizing the suspension authority, and its celebrated Suspension Clause allowed the central state to override state habeas corpus. Thomas Jefferson objected, although as president he tried to suspend habeas in his struggle with Aaron Burr’s conspirators.