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«Reviewed by Stephen I. Vladeck∗ “We shall have to look to history for the essentials of the Great Writ, but not to one point in that history for ...»

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Cambridge, Mass.: Harvard University Press. 2010. Pp. ix, 502. $39.95.

Reviewed by Stephen I. Vladeck∗

“We shall have to look to history for the essentials of the Great Writ, but

not to one point in that history for its accidents.”1

The history of habeas corpus in pre-revolutionary England has figured prominently in American constitutional litigation and legal scholarship for much of the past fifteen years.2 Although this history has mattered for different reasons in different cases, the common theme has been the unprecedented degree to which courts have had to grapple with the purpose, meaning, and scope of the U.S. Constitution’s Suspension Clause, which provides that “[t]he 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.”3 And given how assiduously jurists have traditionally avoided asking (let alone answering) such questions,4 contemporary judges and scholars have found little settled by prior precedent. The result, in post-conviction, immigration, and extradition cases as much as in suits arising out of the detention of alleged terrorists, has been an extraordinary amount of ef–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– ∗ Professor of Law, American University Washington College of Law. I have benefitted tremendously from the comments of Baher Azmy, Bobby Chesney, Eric Freedman, Amanda Frost, Jon Hafetz, Dan Marcus, Gerry Neuman, Ira Robbins, Amanda Tyler, Larry Yackle, and students in my Fall 2010 seminar on the history of habeas corpus; from faculty workshops at Southwestern Law School, the University of Auckland, the University of Georgia, the University of Iowa, and the University of Texas; from the research support of Dean Claudio Grossman; and from the source-gathering assistance of Adeen Postar. In the interest of full disclosure, I should note that I have served as co-counsel at various points to the Petitioner in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), and to different amici curiae in a host of the other contemporary cases discussed in this review.

1 Brief for Respondent at 33, United States v. Hayman, 342 U.S. 205 (1952) (No. 23).

2 This increased focus was largely sparked by passage of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (codified as amended in scattered sections of the U.S. Code), which included the most significant constraints on the federal courts’ power to issue the writ that had (to then) ever been enacted.

3 U.S. CONST. art. I, § 9, cl. 2.

4 See, e.g., INS v. St. Cyr, 533 U.S. 289, 301 n.13 (2001) (“The fact that this Court would be required to answer the difficult question of what the Suspension Clause protects is in and of itself a reason to avoid answering the constitutional questions that would be raised by concluding that review was barred entirely.”).

942 HARVARD LAW REVIEW [Vol. 124:941

fort devoted to answering fundamental questions about what the Constitution requires.

There is relatively little in the Constitution’s drafting history or ratification debates to illuminate the meaning of “[t]he Privilege of the Writ of Habeas Corpus.”5 Still, most jurists and commentators now seem to agree on the constitutional floor. As Justice Stevens put it in 2001, “at the absolute minimum, the Suspension Clause protects the writ ‘as it existed in 1789.’”6 And yet, even that limited point of consensus begs a separate question: what was the scope of the writ in English law in 1789, the practice from which we presume the Founders meant to borrow?

In Habeas Corpus: From England to Empire, Paul Halliday, a University of Virginia historian, provides an answer to that question (and many others) by comprehensively surveying the scope of English habeas practice during the sixteenth, seventeenth, and eighteenth centuries. Rather than perusing the published reports of English judicial decisions or the works of contemporaneous treatise writers, Halliday went to the archives. His study examines every writ of habeas corpus ad subjiciendum7 issued by King’s Bench8 in every fourth year between 1502 and 1798, and also covers writs issued during intervening non-survey years of particular importance (pp. 319–33). The result of Halliday’s quadrennial review is a set of some 2757 distinct prisoners or detainees using the writ in the survey years, along with over 2000 other distinct users from other periods (pp. 4–5). From these numbers, Halliday conservatively extrapolates that over 11,000 prisoners re–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 5 See, e.g., ERIC M. FREEDMAN, HABEAS CORPUS: RETHINKING THE GREAT WRIT OF LIBERTY 12 (2001) (noting that the drafting history of the clause at the 1787 Constitutional Convention was “sparse”).

6 St. Cyr, 533 U.S. at 301 (citation omitted); see also Boumediene v. Bush, 128 S. Ct. 2229, 2248 (2008). But see Noriega v. Pastrana, 130 S. Ct. 1002, 1006 (2010) (Thomas, J., dissenting from denial of certiorari) (claiming 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”). For the origins of the Court’s odd focus on 1789, as opposed to 1787 (when the Constitution was written) or 1788 (when it was ratified), see Daniel J. Meltzer, Habeas Corpus, Suspension, and Guantánamo: The Boumediene Decision, 2008 SUP. CT. REV. 1, 15 n.62. To be clear, I do not mean to endorse the “as it existed in 1789” approach as anything more than a floor. Among other defects, it neglects the potential significance of subsequent developments, such as the ratification of the Bill of Rights and the Fourteenth Amendment. See Gerald L. Neuman, The Habeas Corpus Suspension Clause After INS v. St. Cyr, 33 COLUM. HUM. RTS. L. REV. 555, 589–621 (2002).

7 Although there are several different forms of the writ, the iteration with which Halliday (and current discussions) are exclusively concerned is habeas corpus “ad subjiciendum,” that is, “the writ used to ‘inquir[e] into illegal detention with a view to an order releasing the petitioner.’” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) (alteration in original) (quoting Fay v. Noia, 372 U.S. 391, 399 n.5 (1963)). Halliday discusses this distinction at pp. 16–17.

8 For ease of reference, I refer to the tribunal throughout this essay as “King’s Bench,” even though it has been known as the “Upper Bench” as well as “Queen’s Bench” for much of Halliday’s study and today.

2011] THE NEW HABEAS REVISIONISM sorted to the writ during this period, as compared to the far smaller number from the same era reflected in the English Reports (p. 28).9 Judged purely as a work of archival research, Halliday’s monograph is first-rate. By relying on primary source materials and endeavoring to place the individual writs in their proper historical context, Halliday’s book provides a refreshingly original view of the “Great Writ,” rather than a rehashing of older histories, most of which were not based upon the same sources (although they could have been). On its own, the story of these writs is a contribution to our historical understanding, adding to the conversation both episodes and themes that have been neglected for far too long.

But Halliday’s book is not just legal history.10 It is also — selfconsciously11 — methodologically driven historical revisionism.12 In his words, “[I]f lawyers and judges want to act on claims about history, we must first make a fully contextualized reclamation of those past principles. Only then might history serve law: not as a grab bag of poor analogies, but as an otherwise unseen position from which to think anew about the questions that law must answer” (p. 4). Instead, as Halliday explains in the book’s early pages, many of the nineteenthand twentieth-century discussions of the history of habeas corpus in ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 9 As Halliday notes, there is plenty of recent scholarship on the inadequacies of the English Reports as a remotely comprehensive historical source (p. 343 n.50) (citing J.H. BAKER, AN INTRODUCTION TO ENGLISH LEGAL HISTORY 183–84 (4th ed. 2002)). See also A.W. BRIAN SIMPSON, LEADING CASES IN THE COMMON LAW 10–12 (1995); J.H. Baker, Why the History of English Law Has Not Been Finished, 59 CAMBRIDGE L.J. 62, 82–83 (2000).

In an article previewing what was to come in the book, Halliday (along with G. Edward White) explained that the most generous accounting of the English Reports yields 159 reports of 143 habeas cases in the three centuries leading up to 1789 — 1.44 percent of the projected total of Halliday’s dataset. Paul D. Halliday & G. Edward White, The Suspension Clause: English Text, Imperial Contexts, and American Implications, 94 VA. L. REV. 575, 591 n.35 (2008) (citing R.J.


10 Halliday declines to unpack the story of his writs chronologically, explaining that “the book’s three sections and nine chapters... are organized around concepts and practices rather than particular periods or strict chronology” (p. 7). Halliday continues: “If narrative is like a tone poem, then this book has been written as a fugue.... Take a theme, then repeat it, layering on new themes while playing them all against each other. Doing so brings out revealing dissonances” (p. 6). Thus, his is not so much a history of habeas as it is a study of habeas across a fixed time period, within which distinct themes (rather than time) serve as the independent variable. Although such an approach may reinforce some of Halliday’s central conclusions, it also produces one of the few genuine flaws in the monograph: the repeated invocations of the same episodes in different chapters.

11 For example, Halliday notes, “We read Coke, Blackstone, and a handful of printed reports, then claim that we know what the law ‘was’ in 1789 or some other moment. If we do that while countless parchment court records and case reports surviving only in manuscript lie unread in archives, then we have been derelict as historians. If we act upon such claims in our courts, we may be derelict in our jurisprudence, our claims resting on hollow foundations” (pp. 3–4).

12 Although “revisionism” is often treated as synonymous with “negationism,” I mean it here in its neutral context, as described in James McPherson, Revisionist Historians, PERSPECTIVES, Sept. 2003, at 5.

944 HARVARD LAW REVIEW [Vol. 124:941 England exemplify the “Whig” histories that Herbert Butterfield decried in the 1930s.13 These earlier commentators — including no less a figure than William Blackstone14 — repeatedly attempted to “draw lines through certain events... to modern liberty,” “forget[ting] that this line is merely a mental trick.”15 To that end, the typical narrative of habeas in pre-revolutionary England proclaims [habeas as] the result of an inescapable process, begun in a misty past, carried through Magna Carta, past a tyrannical king or two, and finally to its triumph: the realization of all that the writ portended with the help of democratic impulses working through statute-making bodies, whether British Parliaments, colonial assemblies, or American Congresses.

(p. 2)16 Such a story, however and whenever told, is too convenient by half.

To begin with, “[i]t is not a little ironic... that [habeas’s] original purpose was not to release people from prison but to secure their presence in custody.”17 And yet, classical narratives fail to explain the virtual absence of meaningful developments between 1215 and the early seventeenth century, when the writ began to evolve.18 Nor do they provide any explanation for why it was then, in particular, that the writ started to shape into the form it holds today, especially if meaningful statutory advancement did not take place until later. “So much awkward silence separates [the thirteenth century from the seventeenth],” Halliday notes, “that some authors have thrown up their hands” (p.

16). And even for those who have not, none can make up for the fact that “[n]o single line runs through the Middle Ages to the writ that was newly invigorated in the decades around 1605” (p. 18).19 Finally, conventional histories are useless when it comes to explaining how, if habeas evolved linearly to become the “great writ of liberty,” it proved so ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 13 See H. BUTTERFIELD, THE WHIG INTERPRETATION OF HISTORY 1–8 (1931); see also Michael E. Parrish, Friedman’s Law, 112 YALE L.J. 925, 954–55 (2003) (book review) (summarizing Butterfield’s work, and how legal historians are particularly susceptible to writing “Whig” history).

14 See, e.g., Halliday & White, supra note 9, at 589 & nn.28–30 (discussing Blackstone’s contributions to — and misunderstandings of — habeas’s history).

15 BUTTERFIELD, supra note 13, at 12.

16 As additional examples, Halliday cites two influential nineteenth-century American treatises linking habeas to the Magna Carta (pp. 16 & 339 n.15) (citing WILLIAM S. CHURCH, A TREATISE ON THE WRIT OF HABEAS CORPUS 3–4 (2d ed. 1893); and ROLLIN C. HURD, A



17 BAKER, supra note 9, at 146.

18 This historical gap has been referred to as the writ’s “peculiar path to fame.” See William F. Duker, The English Origins of the Writ of Habeas Corpus: A Peculiar Path to Fame, 53 N.Y.U.

L. REV. 983 (1978).

19 Thus, Halliday identifies a series of changes in practice that first began to appear around 1605 (pp. 26–27).

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