The Constitutional Puzzle of Habeas Corpus

42 Pages Posted: 16 Mar 2004


The U.S. Constitution has always protected habeas corpus. Yet when we consider the Suspension Clause together with three other constitutional principles, we find a constitutional puzzle. Pursuant to the Madisonian Compromise, inferior federal courts are constitutionally optional. Under Marbury v. Madison, Congress cannot expand the Supreme Court's original jurisdiction beyond the bounds of Article III. Pursuant to Tarble's Case, state courts cannot issue writs of habeas corpus to determine the legality of federal custody. There would seem to be a violation of the Suspension Clause, however, if neither the inferior federal courts, the Supreme Court, nor the state courts could issue writs of habeas corpus. This Article suggests that the apparent conFLict among these constitutional principles can be resolved by the power of individual Justices of the Supreme Court to issue writs of habeas corpus.

Keywords: Habeas Corpus, Marbury, Tarble's Case, Madisonian Compromise, Suspension Clause

Suggested Citation

Hartnett, Edward A., The Constitutional Puzzle of Habeas Corpus. Boston College Law Review, Vol. 46, p. 251, 2005, Available at SSRN: or

Edward A. Hartnett (Contact Author)

Seton Hall University School of Law ( email )

One Newark Center
Newark, NJ 07102-5210
United States
973-642-8842 (Phone)

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