The New Habeas Revisionism

Abstract

There is relatively little in the Constitution’s drafting history or ratification debates to illuminate the intended meaning of the Suspension Clause, and what it specifically protects by preserving “the Privilege of the writ of Habeas Corpus” except in cases where habeas is properly suspended. Most jurists and commentators at least seem to agree on the constitutional floor - that, as Justice Stevens put it in 2001, “at the absolute minimum, the Suspension Clause protects the writ ‘as it existed in 1789.’” But even that limited point of consensus only 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, Professor Paul Halliday provides a new series of answers to that question, using archival research to survey the scope of English habeas practice during the sixteenth, seventeenth, and eighteenth centuries. Rather than rely upon the published reports of English judicial decisions or the works of contemporaneous treatise writers, Halliday's work focuses on the writs themselves, extrapolating a series of conclusions based upon comprehensive archival research. To that end, Halliday's revisionist methodology reveals that many classical accounts of the scope of the writ in pre-revolutionary England (including Blackstone's) are in fact "whig" histories, superimposing modern and anachronistic understandings of rights and remedies onto a practice that was, in reality, far different. As Halliday explains, the dominant feature of pre-revolutionary habeas was the flexibility and dexterity of the justices in applying the common-law writ; and the true threat to such judicial power was Parliament - not just when it suspended habeas, but, ironically, when it codified the writ, as well. Ultimately, habeas corpus in seventeenth- and eighteenth-century England was about principles, not rules - about power, not rights. No case expressly refuted the rule against controverting the return, and yet the justices consistently flouted it. No case expressly held that the writ could reach anyone who answered to the sovereign, and yet the justices consistently sent it. No case expressly established the flexibility of the remedy that came to characterize habeas practice into the latter half of the eighteenth century, and yet the justices routinely demonstrated it. In the end, Halliday’s book does more than just refute time-honored conceptions of the scope of habeas in England at the Founding; it refutes the way in which we have arrived at those conceptions, proving not just that we have consistently taken the wrong lessons from the wrong sources, but that we have been (and perhaps still are) asking the wrong questions, looking for individual cases to prove what the rules (that must have existed) must have been.

Although this review essay uses the Guantanamo detainee cases to both summarize Halliday's conclusions and explain how they should reorient our understanding of the ambit of the writ in contemporary litigation, it suggests that the true significance of Halliday's history runs deeper. As useful as these revisionist conclusions should be in identifying the specific scope of the writ “as it existed in 1789,” what they really confirm is the protean dynamism of pre-revolutionary habeas in England. As the essay concludes, tying the Suspension Clause to what was true at the Founding only makes sense if one accepts that the result is a constitutional floor marked by fluid principles, not rigid practices. And although that proposition reveals serious and systematic flaws in how contemporary courts and commentators have approached questions as to the scope and sweep of habeas at the Founding, it remains for future generations, and not historians, to decide if the Constitution does - or should - protect anything more.

Keywords: habeas corpus, legal history, common law, revisionism, Guantanamo, terrorism, detainees, Suspension Clause