Habeas Corpus Book Review 124 Harv. L. Rev. 941

The New Habeas Revisionism

The history of habeas corpus in England and its implications for the U.S. Constitution


The history of habeas corpus in pre-revolutionary England has figured prominently in American constitutional litigation and legal scholarship for much of the past fifteen years. In Habeas Corpus: From England to Empire, Paul Halliday, a University of Virginia historian, surveys the scope of the writ in English law during the sixteenth, seventeenth, and eighteenth centuries by examining every writ of habeas corpus ad subjiciendum issued by King’s Bench in every fourth year between 1502 and 1798 as well as those issued during non-survey years of particular importance (pp. 319—33). Judged purely as a work of archival research, Halliday’s monograph is first-rate and provides a refreshingly original view of the “Great Writ.” On its own, the story of these writs is a contribution to our historical understanding, adding to the conversation both episodes and themes that have been neglected for far too long.

But Halliday’s book is not just legal history. It is also – self-consciously – methodologically driven historical revisionism. Classical narratives fail to explain the virtual absence of meaningful developments between 1215 and the early seventeenth century, when the writ began to evolve. Nor do they provide any explanation for why it was then that the writ started to shape into the form it holds today. Finally, conventional histories are useless when it comes to explaining how habeas proved so feeble a constraint on the British Parliament in the eighteenth century and on colonial assemblies in the nineteenth. The result is that we have ended up with a narrative of habeas that may be normatively attractive, but that is historically misleading. Because of our modern preoccupation with the rights that individuals hold against their governments, scholars have long understood habeas corpus incorrectly as part of a framework of individual liberties, belying the extent to which the importance of the writ in pre-revolutionary England was about the courts much more than it was about the litigants. Halliday’s writs provide a narrative of pre-revolutionary English habeas as the means by which King’s Bench increasingly came to assert its authority, first at the expense of other judicial tribunals, and eventually at the expense of Parliament and the King himself.

To see how habeas came to be about judicial power is merely to scratch the surface of Halliday’s research, for Halliday identifies three other motifs in his survey that are inconsistent with most conventional accounts. First, “this power to judge arose not from ideas about liberty, but from sovereignty as it was understood three and four centuries ago: as embodied in an actual person,” that is, the monarch (p. 7). Second, “what constituted liberties was the result rather than the starting point of judicial decision-making” (p. 7). Third, “statute and empire, often acting together, revealed both the limits and possibilities of habeas corpus” (p. 7). In short, Halliday’s book indicts classical accounts of English habeas for their myopia and their hyperopia. The common law writ was far more powerful than we have appreciated, and Parliament’s role in the story far more equivocal.

The point of this Review, though, is not merely to describe Halliday’s work or to outline its contributions to English legal history (which Part I attempts). Rather, I aim to demonstrate how Halliday’s revisionism should also reorient our understanding of the U.S. Constitution’s Suspension Clause in a manner that bears on a growing number of contemporary cases. Thus, after summarizing the origins and background of the clause, Part II moves on to the role that history has (and should have) played in contemporary litigation arising out of the detention without trial of terrorism suspects. In particular, the history of the writ has been one of the most significant themes undergirding the Supreme Court’s 2008 decision in Boumediene v. Bush and subsequent litigation in the D.C. Circuit. As Part II explains, Halliday’s research suggests that these decisions, even when reaching the right results, have been based on flawed understandings of where the writ could go, and what it could do, at the time of the Founding. Finally, insofar as we have lost sight of the history informing the writ, Part III addresses when (and why) our understanding changed. To that end, Part III seizes on three distinct points of departure from English practice. Ultimately, although we may well conclude that “originalism” in the context of the Suspension Clause is either untenable or undesirable, so long as the Supreme Court continues to insist that the writ “as it existed in 1789” matters, Halliday’s book suggests that we have veered hopelessly off course – and that legislation is not the answer.