Two Theories of Habeas Corpus
Thomas Jefferson School of Law
June 1, 2005
TJSL Public Law Research Paper No. 05-05
Determining the Writ of Habeas Corpus's appropriate role in the American criminal justice system has taken on new import because of controversy over the detention of accused terrorists. Unfortunately, the changes in habeas doctrine throughout the last century have mystified commentators. Without an understanding of where the writ has been, the courts are ill-equipped to chart its future.
This article presents two unexplored theories that advance our understanding of habeas law. The first - the judicial-power theory - questions the accepted view that habeas guards individual liberty and interprets the writ as a device that the U.S. Supreme Court uses to enforce its right to proclaim the law. This interpretation of the writ explains each expansion and contraction of the doctrine more effectively than any existing theory.
Despite its explanatory power, the judicial-power theory, like all prior theories, is incomplete because it assumes that habeas doctrine evolves in response to changing social attitudes external to the legal system. The second theory presented here explores how the ideology surrounding habeas has influenced those attitudes and legal doctrine. Habeas corpus embodies contradictory ideologies. A powerful liberty-supporting ideology has long helped to enable reformers to conceive of, and opponents to accept, new possibilities for expanding the rights of the accused. A counter-habeas ideology, however, sees the writ as a dangerous get-out-of-jail-free card that wrongly rewards those who deserve punishment. Ironically, this counter-habeas ideology has also advanced liberty interests by focusing law-enforcement-oriented attacks on the writ itself rather than on the substance of criminal procedure rights.
Number of Pages in PDF File: 59
Keywords: Habeas Corpus, federalism, comity, liberty, judicial power, ideologyworking papers series
Date posted: June 9, 2005 ; Last revised: March 26, 2009
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