Guardian Against Tyranny: The Writ of Habeas Corpus

“Anthony Gregory reduces 400 years of Anglo-American legal and political history to a readable, thorough, compelling study of this natural and constitutional right. This book is so well researched and written that it will soon become the bible on all things habeas corpus for generations.” –Hon. Andrew P. Napolitano, Senior Judicial Analyst, Fox News Channel

To live under tyranny is to live in fear—especially the fear of being arrested and jailed at the whims of the rulers. This is why America’s Founders regarded the right not to be detained arbitrarily as a cornerstone of liberty, and why they cherished the legal device they believed had secured that right: the writ of habeas corpus. If we are to live as a free people and avoid the clutches of oppression, it is imperative that we learn the history of this Anglo-American right—a task made immensely easier with the publication of the landmark new book, The Power of Habeas Corpus in America: From the King’s Prerogative to the War on Terror, by Independent Institute Research Fellow Anthony Gregory.

Habeas corpus is often thought to have originated as an individual right against unjust detention. But Gregory shows that the truth is more complex—and far more dramatic—than the mistaken notion that habeas corpus as we know it emerged fully formed from the brows of the barons who forced King John to sign Magna Carta. The Great Writ, as scholars have called it, began as a court’s and a king’s prerogative to challenge the detainment of a particular person (hence the Latin meaning of habeas corpus: “have the body”). It evolved into a pillar of individual liberty over the course of centuries of power struggles.

The Power of Habeas Corpus in America tells the story of those struggles, offering insights on numerous pivot points of American history: how the American colonists overestimated the extent of the legal protections enjoyed by English citizens; why the Anti-Federalists criticized the U.S. Constitution’s Suspension Clause; how state writs of habeas corpus were used both to support slavery and to challenge it; how Lincoln planned to escape prosecution for suspending habeas corpus during the Civil War; how the states lost their authority to use habeas against federal detention; how the Great Writ freed many immigrants who’d been detained under the Chinese Exclusion Act; how the Supreme Court rationalized the internment of Japanese-Americans during World War II; why federal habeas review in the late 20th century expanded and contracted; and how the round-up of immigrants in the wake of the 9/11 terrorist attacks underscores the importance and limitations of habeas protections. (The book devotes five of its eight appendices to dissecting Supreme Court decisions regarding the detention of suspected terrorists during the Bush administration.)

Although Americans celebrate habeas corpus as a safeguard against tyrannical imprisonment, it has been an imperfect remedy. What would make it fully reliable? For habeas to live up to this ideal, Gregory argues, ultimately there is only one solution: legal thinkers—and the public—must champion an ethos that elevates the principle of individual liberty above government power. Readers who absorb Gregory’s nuanced and erudite book will be well equipped to articulate the value of a legal right that unfortunately remains vulnerable to the machinations of the state—and will be better able to defend liberty, too.

[This post appeared first in the April 30, 2013, issue of The Lighthouse. For a free subscription to this weekly newsletter and other bulletins of the Independent Institute, enter your email address here.]

Carl Close is Research Fellow and Senior Editor for The Independent Institute and Assistant Editor of The Independent Review and editor of The Lighthouse, The Independent Institute’s weekly e-mail newsletter.
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