Habeas, History, and Hermeneutics
Arizona Law Review, Volume 64, Issue 2 (Summer 2022, Forthcoming)
35 Pages Posted: 5 Aug 2021 Last revised: 28 Sep 2021
Date Written: August 5, 2021
Supreme Court Justices Clarence Thomas and Neil Gorsuch recently proposed a radical shrinking of federal habeas corpus relief for state prisoners who are in custody pursuant to a final judgment of criminal conviction. They called for a return to the supposedly traditional principle that federal courts cannot grant habeas relief to such prisoners unless the state court that sentenced them lacked jurisdiction. This Article explains that (1) this supposedly traditional principle was not, in fact, a traditional principle of habeas, and (2) even if it were, Congress has displaced it by statute. Exploring the errors in the Justices’ arguments provides valuable lessons in the proper uses of historical materials and in the hermeneutics of statutory interpretation.
Keywords: Habeas Corpus, Federal Courts, History, Statutory Interpretation.
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