Habeas history

Grits mentioned the other day the much-misunderstood fact that habeas corpus is a governmental power - not a right of individuals the way we think of the bill of rights - and that historically interventions by legislative bodies served to weaken the writ, not bolster it. Here's a recent column by Anthony Gregory of the Independence Institute who has recently published a book titled, "The Power of Habeas Corpus in America: From King's Prerogative to the War on Terror." This excerpt from his column elaborates on some of that history:

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.

In antebellum America, however, state habeas corpus remained prominent. State courts used habeas corpus against the federal government, although this fact has tragically gone missing in most literature on federalism. States even used habeas to challenge military enlistments, and they also used habeas to enforce as well as undermine slavery. The great writ’s usage to seize blacks in northern states with personal liberty laws, and return them to bondage, is a most shameful and neglected episode in U.S. legal history.

Prior to the mid-nineteenth century, the federal government had very little habeas authority over the states. A major shift came in the 1833 Force Act, where, to stop nullification of the tariff, the feds claimed the power to shield tax collectors from state imprisonment. In practice, the true expansion of federal habeas over states accompanied the Fugitive Slave Law, to protect federally-approved slave catchers from state obstruction. In the 1859 case Ableman v. Booth, the Supreme Court, in a pro-slavery decision, ruled against the state power to question federal detentions.

During the War Between the States, both the Union and Confederacy seriously violated habeas corpus rights. Lincoln delegated to a military authority the unilateral power to suspend habeas without congressional approval. (Ed. note: See a Confederate-era Texas exception described in this Grits post.) In 1871, the Supreme Court finalized its revolutionary claim over the states in Tarble’s Case.

Libertarians should favor strong due process protections, but the nationalization of due process has had limits. Although the feds have expanded their scope over habeas, in less than 1 percent of the cases do prisoners get relief. Most convicts don’t file because the review process takes longer than their sentence. Once championed as a way to guarantee a speedy trial, habeas is now a bureaucratic process that takes half a decade.

Those interested in these topic should  read the whole thing. Grits found the column interesting enough to request a review copy of Mr. Gregory's treatise, which the publishers graciously sent me, so more on this topic subject when I've finished the book.