A Constitutional Theory of Habeas Power

Article — Volume 99, Issue 4

99 Va. L. Rev. 753
Download PDF

Modern habeas corpus law generally favors an idiom of individual rights, but the Great Writ’s central feature is judicial power. Throughout the seventeenth-century English Civil Wars, the Glorious Revolution, and the war in the American colonies, the habeas writ was a means by which judges consolidated authority over the question of what counted as ‘lawful’ custody. Of course, the American Framers did not simply copy the English writ—they embedded it in a Constitutional system of separated powers and dual sovereignty. ‘A Constitutional Theory of Habeas Power’ is an inquiry into the newly-minted principle that the federal Constitution guarantees some quantum of habeas process.

I argue that Article III combines with the Suspension Clause to guarantee habeas process and to specify the exclusive conditions by which Congress may restrict it. My ‘Habeas Power Theory’ has two global principles: (1) that the constitution entitles all federal prisoners to some quantum of habeas (or substitute) process before an Article III judge; and (2) that, absent a formal suspension, the constitution does not permit Congress to restrict judicial power to determine what constitutes proof of lawful custody.

By cohering the new writ history, decisional law, and maxims of federal jurisdiction, I sketch a theory for how judges ought to use habeas to test different forms of federal power—for immigration, military, and criminal custody. ‘Habeas Power’ represents an entry in a new thread of habeas literature, growing out of the War-on-Terror litigation and focusing on what one might call the ‘core features’ of the writ. Methodologically, the Article embraces the renewed emphasis on pre-Revolutionary English writ practice and habeas suspension statutes. It is also the scholarship’s most extensive treatment of habeas jurisdiction as an Article III remedial power over federal custody. By formulating the habeas authority as a power of judges, I try to square an affirmative constitutional guarantee of habeas process with more established maxims of federal jurisdiction.

Click on a link below to access the full text of this article. These are third-party content providers and may require a separate subscription for access.

  Volume 99 / Issue 4  

Constitutional Privileging

By Michael Coenen
99 Va. L. Rev. 683

A Constitutional Theory of Habeas Power

By Lee Kovarsky
99 Va. L. Rev. 753

The Dark Side of Town: The Social Capital Revolution in Residential Property Law

By Stephanie M. Stern
99 Va. L. Rev. 811

The Principal Problem: Towards a More Limited Role for Fiduciary Law in the Nonprofit Sector

By Natalie Brown
99 Va. L. Rev. 879