Habeas Corpus: Political, Legal, or Both?

Habeas Corpus in America
The Politics of Individual Rights
Justin J. Wert
March 17, 2011

By Justin J. Wert, an assistant professor of political science at the University of Oklahoma.
On March 7, 2011, President Barack Obama signed an executive order authorizing military commissions to begin again at Guantanamo Bay after a two-and-a-half-year hiatus. But while the President's order reminded the country of his now-hollow promise to close down Guantanamo within his first year in office, it also served to remind us of the political and legal debates over the writ of habeas corpus that ensued immediately after the first detainees were brought to Camp X-Ray in January 2002. Indeed, the President's Executive Order states clearly that:

Detainees at Guantánamo have the constitutional privilege of the writ of habeas corpus, and nothing in this order is intended to affect the jurisdiction of Federal courts to determine the legality of their detention.

Habeas Corpus in America: The Politics of Individual Rights accounts for the development of one of the most important - but least understood - components of American constitutional law. Scholars, legal practitioners, politicians, and citizens alike, hold deeply divergent views about the writ's historical development and normative function.

To complicate matters even more, almost all existing studies of habeas divide their analysis of the Great Writ of Liberty into so-called "extraordinary" periods (like war and crisis) and "ordinary" periods (like its evolving use as a remedy for challenging criminal convictions in the United States), making it even more difficult to imagine a systemic and coherent account of the writ's role in American political development more generally. As a result, we still tend to ask very different questions - and therefore always produce very different answers - about habeas' function in American constitutional law, theory, and history.

Some new answers to these seemingly irresolvable problems are the subject of this book. Many historical works painstakingly detail much of habeas' early British and American colonial origins, and law reviews blossom with articles that advocate various legal approaches and preferred interpretations of the writ's scope and use by courts. Habeas Corpus in America instead accounts for the political origins and development of habeas corpus in the United States by moving beyond exclusively legal and court-centered analyses.

I show how habeas has served as a potent tool of political regime change, enforcement, and dissolution in American politics. The most significant changes to habeas corpus rarely come exclusively from the oracular pronouncements of judges. Instead, habeas changes are often initiated and led by a coalition of other institutions in American government, including Congress, the president, political parties, state governments, legal academics and jurists, and even interest groups. These coalitions, or political regimes, sought to undo the political and legal legacies of the past through strategic changes to habeas corpus in order to establish and then enforce their own vision of constitutional governance in the United States. These regimes certainly understood and took seriously the legal foundations of the writ, but more often than not they looked past existing legal precedents and constraints and, often with the aid of courts that were sympathetic to these regimes, fashioned habeas' legal structure - its normative function; its jurisdiction or reach; and the rights it protects -- to reflect the new ideals of their regime's governing principles. Habeas corpus thus serves as a vehicle through which political regimes attempt to re-order American governing institutions.

Chapter 2 traces habeas development and change from the Founding to the eve of the Civil War. including its role in the founding debates; the Judiciary Act of 1789; its first substantive interpretations from the Marshall Court; changes to federal habeas for state prisoners in the Habeas Acts of 1833 and 1842; and its important role as a mechanism of regime enforcement concerning fugitive slaves and the extension of slavery in the territories.

Chapter 3 accounts for the momentous changes to habeas during the Civil War and Reconstruction. One of the most important goals of this chapter is to show how habeas' suspension during the Civil War, and its subsequent expansion by congress at the beginning of congressional Reconstruction, were not separate developments but were instead of a piece with the Republican regime's larger goals of constitutional governance during and after the Civil War.

Chapter 4 highlights the Court's changes to habeas from the height of Jim Crow at the turn of the twentieth century to the beginning of the Warren Court. These more Court-centered changes and developments were nevertheless linked to larger political concerns that racked the nation in the first four decades of the twentieth century. Racial politics form the backdrop for habeas' development in three contexts: the persistent problem of lynchings and mob-dominated courtrooms in the Jim Crow south; the internment of Japanese-Americans during WWII; and the beginning of a more racially tolerant society after the war.

The New Deal and Great Society regimes' transformations to the American political landscape form the backdrop for Chapter 5. The Warren Court used habeas to force states to conform to the regime's new conceptions of constitutional governance through a reinterpretation of both the criminal process provisions of the Bill of Rights and the Fourteenth Amendment. These habeas changes soon led to political and legal backlash from an emerging conservative coalition that was able to gain traction by criticizing the Warren Court's transformation of the writ from an extraordinary to an ordinary remedy for any and all seeming constitutional violations.

Chapter 6 traces the Nixon and Reagan coalition's attacks on the habeas changes created by the Warren Court and their attempts to refashion habeas in the service of larger conservative Republican visions of state's rights federalism and race neutrality.

The concluding chapter weaves together the book's overall themes concerning habeas' political linkages to governing coalitions into an account of habeas' role since 9/11. The Court's War on Terror habeas cases show that no matter how reliably linked the Court is to the larger political regime, independent institutional conceptions by the Court of habeas' procedural necessity, as well as the Court's conception of its own role in the American constitutional system, preclude the judiciary's full cooperation in giving legal imprimatur to the regime's vision of governance.