14 Pages Posted: 30 Apr 2009 Last revised: 13 May 2014
Date Written: March 17, 2009
For nearly 800 years the writ of habeas corpus has been a bulwark against the unlimited exercise of executive power first in England, and later the United States. Throughout much of U.S. history, habeas corpus has continued the English tradition of being a check on executive power and thus bolstering the separation of powers. More recently, the writ of liberty has been threatened by the indefinite detention of alleged “enemy combatants” in Guantanamo Bay, Cuba, as part of the Bush Administration’s “War on Terror” under the Military Commissions Act of 2006 (MCA). In Boumediene, the Court relied on a comparative analysis of the writ of habeas corpus in English and U.S. law that proved dispositive both to the future of the detainees at Guantanamo specifically, as well as the scope of habeas corpus as the writ of liberty generally. Despite its critical role, there has been little literature examining the great writ’s convoluted history. This book review addresses this omission by summarizing and critiquing the only comprehensive, contemporary account of the evolution of habeas corpus in England and the United States entitled Habeas Corpus Writ of Liberty: English and American Origins and Development, by Robert Walker. It then moves on to focus on how Justice Kennedy’s majority opinion in Boumediene, which came down after this book was published, upheld the finest traditions of habeas corpus as being a robust tool against unlimited executive power. The review concludes by arguing that procedural barriers must be lowered for the writ of liberty to reach its full potential as a guarantor of post-conviction relief for unlawful or arbitrary detention.
Keywords: habeas corpus, constitutional, comparative, england
Suggested Citation: Suggested Citation
Shackelford, Scott, Book Review of Habeas Corpus Writ of Liberty: English and American Origins and Development, by Robert Searles Walker, Ph.D (March 17, 2009). Cleveland State Law Review, Vol. 57, No. 3, 2009. Available at SSRN: https://ssrn.com/abstract=1361912