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Rsrch Sem: The History of Habeas Corpus (LAW-795-002)
Vladeck

Notices

Description

Debates over the scope of the writ of habeas corpus—the only remedy the Founders saw fit to guarantee in the text of the original Constitution—have persisted throughout American history. What did the drafters mean by the “Privilege of the Writ of Habeas Corpus”? And why would the federal government have the power to “suspend” it only “in Cases of Rebellion or Invasion [when] the public Safety may require it”? In recent years, these questions have taken on a newfound prominence, as Congress has legislated unprecedented constrains upon the power of the federal courts to issue the writ, first in immigration and state post-conviction cases, and more recently in the context of the detention of non-citizen terrorism suspects as part of the war on terrorism. As such, the question of what the Constitution’s Suspension Clause actually protects arises today to a degree unprecedented in the history of our constitutional system.

Within this ongoing conversation, one of the rare points of consensus among courts and commentators is the baseline—that, at a minimum, the Constitution protects the scope of habeas corpus “as it existed in 1789.” Thus, most agree that the relevant question in deciding whether the Constitution protects the writ in particular cases today is whether similar relief would have been available from the courts of England in the late-eighteenth century—from which the Founders expressly borrowed habeas corpus. Put another way, the constitutional question is, in fact, a question of legal history—and, as we shall see, legal historiography.

Our goals in this seminar are three-fold: First, in studying both old and new histories of the writ of habeas corpus in seventeenth- and eighteenth-century England, we will attempt to understand the full scope of the writ available in English courts at the time of the Founding, and to thereby crystallize exactly what the writ was “as it existed in 1789.” Second, in light of these conclusions, we will reevaluate current debates over the scope of the writ in the United States, including questions such as whether it should be available to non-citizens detained outside the territorial United States; whether it should be available to challenge potentially illegal transfers to another country (including extradition and rendition); whether certain equitable doctrines (such as equitable tolling) should be available to petitioners in post-conviction cases; and others. Indeed, students will be encouraged to identify other areas of habeas jurisprudence in which these new historical conclusions might be deployed to argue for modifications to extant doctrine. Finally, we will also endeavor to understand the origins of the incongruity between the history that we will have studied and the current state of American constitutional jurisprudence. That is, we will seek to create our own historiography of habeas corpus in the United States—to understand where, along the way, our jurisprudential understanding went so thoroughly off the rails, and why it did so.

Textbooks and Other Materials

The textbook information on this page was provided by the instructor. Students should use this information when considering purchases from the AU Campus Store or other vendors. Students may check to determine if books are currently available for purchase online.

Our readings for the semester will vary between handouts provided by me via MyWCL, and excerpts from two books that I expect you to acquire on your own — Habeas Corpus: From England to Empire, by Paul Halliday (Harvard Univ. Press 2010); and Habeas Corpus: Rethinking the Great Writ of Liberty, by Eric Freedman (NYU Press 2001).

All other assignments will be provided electronically via MyWCL. Please also note that I will use your official WCL law school e-mail for all course communication, so it is your responsibility to either check that account frequently, or to set it up to forward to another account that you check even more frequently.

First Class Readings

The assignment for the first class is to carefully read through the Syllabus, along with the Supreme Court's decision in Boumediene v. Bush, 553 U.S. 723 (2008), paying particular attention to Parts III and IV of Justice Kennedy's opinion for the Court, and Parts II and III of Justice Scalia's dissent. As you read these opinions, consider the following questions:

(1) Pay close attention to page 16 of Justice Kennedy’s opinion, where he invokes the 2001 decision in St. Cyr for the proposition that, “at the absolute minimum,” the Suspension Clause protects the writ of habeas corpus “as it existed when the Constitution was drafted and ratified,” i.e., 1789. Do you agree that this is the right approach to analyzing what the Suspension Clause means? What are the pros of a 1789-based approach to the content of the Suspension Clause? What are the cons? Do we tend to interpret other constitutional provisions this way? If not, can you think of reasons why the Suspension Clause might be unique in this regard?

(2) Whatever the merits of using 1789 as a baseline, how does Justice Kennedy apply that to his analysis in Part III? What specific lessons does he draw from the scope of habeas in England at the time of the Founding? On which sources does he rely in ascertaining what was true of habeas corpus in pre-revolutionary England? Is this “good” history? What other sources might you have liked to see him invoke?

(3) Ultimately, what conclusions does Justice Kennedy reach in light of the historical materials he surveys in Part III? Is it odd, given all the attention that he pays to the history, that he concludes that it is ultimately equivocal (e.g., in the discussion culminating on page 22)? Based on the sources that he discusses, would you have reached the same conclusion? Why or why not?

(4) In Part IV, Justice Kennedy moves onto “practical considerations” in analyzing whether the Suspension Clause protects the Guantánamo detainees. Is his analysis wholly divorced from the historical discussion in Part III? On what conclusions, ultimately, does his analysis depend? Why, in the end, does he decide that the Suspension Clause “has full effect” at Guantánamo? Is history really immaterial?

(5) Finally, leaving aside the rhetoric of Justice Scalia’s acerbic dissent, and its dubious reliance on Eisentrager, what do you make of Part III, where he undertakes his own historical analysis? Is Scalia relying on the same sources as Kennedy? How does he justify reading the “silence” of English case law as cutting against habeas at Guantánamo? Do you find his analysis convincing? Why or why not?

Syllabus

Use your MyAU username and password to access the syllabus in the following format(s):

• Microsoft Word 2007 (DOCX)
• Adobe Acrobat (PDF)