Habeas Corpus: Rethinking the Great Writ of Liberty.
New York and London: New York University Press, 2001. x + 243 pp. Notes,
index. $45.00 (cloth), ISBN 0-8147-2718-2 ISBN 0-8147-2717-4; $19.00
(paper), ISBN .
Steven Semeraro, Thomas Jefferson School of Law.
Reconfirming Habeas Corpus
M. Freedman's Habeas Corpus: Rethinking the Great Writ of Liberty is
effectively two books. The first digs deeply into primary source
material--perhaps deeper than any legal historian has--to examine three
critical moments in the development of habeas corpus doctrine in the United States.
The second uses this history as a springboard to draw startling new legal
conclusions about the state of habeas corpus law in each of these three
periods. Professor Freedman's analysis would greatly strengthen the case for
broad federal oversight of state criminal procedure (pp. 147-153), if it was
supported by the historical record. Unfortunately, the history that Freedman
presents so well often fails to support the conclusions he draws from it.
Professor Freedman examines the debates surrounding the drafting and
ratification of the Constitution and the early case law, presenting a
thorough record of the early views of the Suspension Clause and the
habeas power that Congress vested in the federal courts through the
Judiciary Act of 1789. Next, he takes up the early-twentieth-century
cases of Frank v. Magnum and Moore v. Dempsey,
describing the tense social environments from which those cases arose and
presenting intriguing commentary from that period on both the actual events
and the court decisions. Third, and most fascinatingly, he provides a rare
behind-the-scenes look at the tortured proceedings in the U.S. Supreme Court
leading to the perplexing decision in Brown v. Allen. Through
communications among the justices and their clerks, Freedman presents more
than a glimpse into the secret world in which Supreme Court decisions take
form. In the process, he explains one of the Court's most obtuse decisions
in illuminating light.
descriptive history of these three periods, the book is quite extraordinary.
Although there is no shortage of historical writing on habeas corpus,
prior writers have limited themselves principally to the case law, the
legislative history of more recent statutes, and the effects of macro shifts
in global legal policy on habeas corpus. Freedman's approach is refreshingly
different in its focus on primary sources that reflect directly on the
thought processes of the men creating the doctrine at these woefully
under-examined critical points. And his technique of integrating social
history with legal materials lends even greater insight by helping the
reader to comprehend the influences affecting the decision-makers of the
second, more analytic, aspect of Freedman's book is less effective than the
first in large part because the historical presentation strongly supports
the traditional interpretations of that history that Freedman seeks to
debunk. And therein lies the rub. The U.S. Supreme Court has never seriously
questioned the existence of a constitutional requirement of some form of
federal judicial review of serious deprivations of liberty, including those
in state criminal proceedings. By presenting what might be the clearest
historical account in the literature, and citing it as support for a broad,
constitutionally mandated right to habeas corpus review of state criminal
convictions in federal court, Freedman may legitimize the use of that
history as a primary, if not sole, determinant of habeas's future. To be
sure, Freedman does not support an entirely historical approach to legal
analysis; he just wants to ensure that those who do look to history "get
the facts right" (p. 46). By failing to deliver on the historically based
analytic argument for the broad federal right, however, he may be
unwittingly strengthening the case of those who would use the ghost of
habeas past to narrow federal review in the battle with those who look
beyond history in steering habeas future.
following three sections discuss Freedman's analytic arguments and explain
how the historical material he has uncovered undermines those arguments.
Virtually every legal historian to consider habeas corpus has concluded that
Section 14 of the Judiciary Act of 1789 prohibited federal courts from
adjudicating petitions for writs of habeas corpus from prisoners held in
custody pursuant to state court criminal proceedings. Freedman boldly
proclaims that his historical research proves his predecessors wrong. As he
sees it, the first Judiciary Act "does not deny federal courts th[e] power
to liberate state prisoners by habeas corpus but instead grants it" (p. 10).
Second, even if the statute did not grant that power, he believes that the
common law and state law supplied federal courts with the necessary
authority to grant the writ to state prisoners (p. 10). And third, if the
Act were interpreted to prohibit federal courts from granting the writ to
state prisoners, it would violate the Suspension Clause.
support his conclusion, Freedman cites many historical sources and
then-existing policy considerations. But virtually all of the historical
evidence appears to point quite strongly in the opposite direction. And even
as to policy, the force of Freedman's analysis is less than persuasive in
light of the historical evidence.
initial matter, the Articles of Confederation included no mention of habeas
corpus. During the drafting of the Constitution, Charles Pinckney
proposed language that would have created a habeas corpus power in the
federal government. That grant of authority, however, did not appear in
the final version of the Constitution. All that remained of Pinckney's
proposal was the Suspension Clause, a prohibition on suspending the writ
except in limited circumstances. Given that the Constitution created a
government of limited powers, the decision to cut language extending the
habeas power to the federal government is a troubling one for the historian
who seeks to find a constitutional right to federal habeas review of state
Freedman expresses little concern about that omission, however. He focuses
instead on Madison's notes and other materials describing the drafting and
ratification process, which show that the debate centered on whether the
federal government should ever be permitted to suspend the writ. All
apparently assumed that the writ of habeas corpus would continue to exist.
Freedman thus contends that because "the authority of the federal courts to
issue the writ to state prisoners" was never questioned, "all parties [must
have] read [the Suspension Clause] as protecting broadly against
Congressional interference with the power [of] federal and state courts ...
to order the release on habeas corpus of both federal and state prisoners"
primary sources that Freedman cites, however, actually cast doubt on his
conclusion that the Constitution's framers silently enshrined federal habeas
oversight of state criminal cases. Those who objected to the Suspension
Clause were concerned with the potential abuse of federal authority, not the
lack of federal power. They expressed fear that if given the power to
suspend the writ, the federal government would undermine the authority of
state courts to free improperly held political prisoners (p. 13). There was
no reason to risk placing so much power in the federal government, the
opponents argued, because the states could "make use" of the suspension
power themselves if need be, and there would never be a need to suspend the
writ "at the same time through all the states" (pp. 12-13, 18).
statements reveal that the habeas power that the framers assumed was a state
power, and that their concern was that the federal government would
interfere with that state authority. It hardly follows that the framers
sought to empower the federal government to free state prisoners. Logically,
those concerned with overly broad federal power would be just as concerned
with the misuse of federal power to free properly detained prisoners as with
the abuse of that power to block the release of those improperly held.
Section 14 of the Judiciary Act is entirely consistent with this conclusion.
The statutory section has a simple three-sentence, one-paragraph, structure:
the first two sentences grant powers (1) federal courts may generally grant
writs, including the writ of habeas corpus, and (2) individual justices may
also grant writs of habeas corpus to inquire into the legal cause of
commitment. Then, the third sentence limits the power to grant habeas relief
to those prisoners held in federal custody. The one recorded reference to
habeas corpus in the legislative history reads cryptically "Hab. Corpus and
Sovereignty of the State--" (p. 37 n. 6). Although precious little can be
drawn from that, it does at least suggest that the first Congress thought
about federal court interference with the state's sovereign right to
administer its criminal law. And in 1807, Justice Marshall interpreted § 14
as limiting the grant of the habeas power in the federal courts to prisoners
held in federal custody. To be sure, Marshall's interpretation in
Bollman was dicta (p. 26), but his interpretation continues to influence
Justices on the Court.
Rejecting Marshall's dicta, Freedman interprets the limiting third sentence
to modify only the second power--that of individual judges--leaving courts
with the authority to grant habeas relief to any prisoner, state or federal.
Given how easy it would have been to specify that the limitation applied
only to judges, it should come as no surprise that the Supreme Court in
Ex parte Door explicitly rejected Freedman's reading of the statute
in terms that could not be less unequivocal: "The words of the proviso are
unambiguous. They admit of but one construction. And that they qualify and
restrict the preceding provisions of the section is indisputable."
Professor Freedman may argue that the Court has been improperly influenced
by Chief Justice Marshall's dicta in Bollman. Tellingly, however,
Justice McLean's opinion for a unanimous Court in Door does not even
Professor Freedman nonetheless contends that Marshall's Bollman dicta
is best understood as inconsequential political propaganda that was
inconsistent with the intent of the framers and the first Congress.
Freedman cites habeas legislation in England, and the practice in the early
United States, recognizing the importance of empowering individual judges to
grant the writ because courts had infrequent sessions in those days and
there was a compelling need to act quickly when one's liberty is wrongly
denied (p. 33). Prohibiting individual federal judges, but not federal
courts, from granting the writ to state prisoners would thus, Freedman
contends, have been a meaningful limitation (pp. 31-34). But a meaningful
limitation is not necessarily a sensible one. If the first Congress thought
that federal courts should have jurisdiction to free improperly detained
state prisoners, it seems odd that it would have hamstrung federal judges in
a way that could require those unlawfully detained to wait substantial
periods for a remedy.
Professor Freedman may respond that the pressing political need to respect
state judicial processes justified the first Congress in limiting habeas
jurisdiction to courts when dealing with state prisoners (p. 29). But, he
contends, Congress would have been unlikely to omit all federal review of
state criminal processes, because a key concern in adopting the Constitution
was ensuring that individual states did not obstruct the central
government's ability to handle foreign affairs by, for example, detaining
foreign dignitaries in violation of international agreements (p. 26). A
federal habeas power over state prisoners could help alleviate this concern.
To combat this problem without stirring the then-super-heated political pot,
Freedman contends that the first Congress deliberately drafted a vague
statute to mask the breadth of the federal jurisdiction it created.
Although one might expect a more thorough historical record of this sort of
governmental slight-of-hand at the highest levels, Professor Freedman's
argument would be worthy of more serious consideration if the only
alternative interpretation of the Judiciary Act of 1789 called for no
federal court oversight of state criminal proceedings. But there is a more
plausible alternative explanation. Congress clearly provided for federal
oversight of state criminal procedures by granting writ of error
jurisdiction to the U.S. Supreme Court (p. 29). The structure of the
Judiciary Act thus suggests that Congress sensibly sought to appease
concerns about overly broad federal judicial power by limiting federal
review of state criminal processes to the highest court presumably presided
over by the most able and respected jurists. By contrast, the compromise
that Professor Freedman puts forward would senselessly compel some state
prisoners--i.e., those unlucky enough to be detained when the federal court
was not in session--to wait extended periods to challenge their detention
before the very same judges who would ultimately review their petition.
Professor Freedman has uncovered a couple of lower court federal cases that
accepted habeas jurisdiction over state prisoners. He readily admits,
however, that these cases do not provide conclusive evidence that his theory
is correct (pp. 42-45). Indeed, he cites other federal cases both before and
after Bollman holding that the federal courts had no habeas power
over state prisoners. If the Bollman dicta misread Congressional
intent, particularly with regard to jurisdiction over foreign dignitaries
imprisoned by a state, one would have expected Congress to correct the
mistake shortly after these decisions. In fact, Congress did not amend the
habeas statute for twenty-six years after Bollman was decided, and
then it addressed a specific then-contemporary concern with state
interference with the work of federal officials. Not until 1842 did
Congress address the problem of state interference with foreign officials,
and that amendment was in direct response to a British diplomatic protest
filed the prior year. And in 1867 when Congress explicitly extended
federal court jurisdiction to grant the writ to all state prisoners, it
acted again in response to then-contemporary problems, namely those arising
in the immediate aftermath of the Civil War. In none of these cases is
there evidence that Congress sought to restore a power granted in the
Constitution or the first Judiciary Act that the courts had erroneously
The Landmark Decisions in Frank and Moore
Supreme Court decisions in Frank and Moore have given rise to
considerable scholarly debate. Some claim that the cases stand for only a
narrow proposition that utterly inadequate review procedures give rise to a
federal due process violation. Others contend that Moore
overruled Frank and established a broad principle that federal habeas
courts could redress any federal constitutional violation in a state
criminal proceeding. And perhaps the leading habeas scholar contends
that the two cases reflect the Court's evolving approach to mixed questions
of law and fact.
Professor Freedman claims to draw on "previously unutilized historical
materials" to reach "a novel legal conclusion: Frank and Moore
are consistent, and both require in-depth federal habeas corpus review of
state prisoner convictions. The differing outcomes of the cases reflect no
more than differing discretionary determinations in specific factual
settings." If by "in-depth" he means that federal courts have the power
to scrutinize federal constitutional violations in state criminal cases, his
conclusion is hardly novel. Shortly after the 1867 expansion of the habeas
statute, the Court recognized that the amendment provided jurisdiction to
review state criminal proceedings for violations of federal constitutional
law that was "impossible to widen." By the time of Frank, the
meat of the matter rested not on the scope of jurisdictional power, which
was quite broad, but on the discretionary considerations that control
whether a federal court would exercise that power.
Perhaps Professor Freedman's point is that Frank and Moore
demonstrated conclusively that the Court was willing to use that power much
more freely than it had in the past. He says, however, that these cases
embodied the established distinction between, on the one hand, "'[m]ere
errors in point of law, however serious' which could only be reviewed by
writ of error," and, on the other hand, "the fundamental or 'jurisdictional'
(particularly Constitutional) claims cognizable on habeas corpus" (p. 61).
But that was not the state of the law during this era. Both before Frank
and after Moore, the Court insisted that all Constitutional claims
were not cognizable in federal habeas. Throughout the 1920s and 1930s, the
Court repeatedly reiterated this traditional prudential limit on the
exercise of its habeas power, making clear that a Constitutional violation
is not necessarily either fundamental or jurisdictional. "[T]he judgment
of state courts in criminal cases will not be reviewed on habeas corpus,"
the Court held in 1925, "merely because some right under the Constitution of
the United States is alleged to have been denied to the person convicted.
The proper remedy is writ of error." And Justice Holmes, the author of
the opinion for the Court in
wrote for the Court in a post-Moore case that the writ should be
granted by a federal court "only upon definitely and narrowly limited
grounds." A more limited interpretation of Frank and Moore
recognizing that a court completely dominated by a mob should be treated as
one without jurisdiction would fit better with the surrounding case law than
Freedman's broader interpretation of those opinions.
The Curious Case of Brown v. Allen
Court's decision in Brown v. Allen is widely believed to be the first
case recognizing that a federal habeas court should--as opposed to could--reexamine
the merits of any federal constitutional claim that had been decided in
state court. Professor Freedman again takes issue with the conventional
wisdom, declaring that the historical materials show that the justices in
Brown were "working within a consensus that the substantive nature of
the inquiry that a federal habeas corpus court should make into the
constitutionality of prior state criminal proceedings was simply not on the
table" (p. 95). Frank established, Freedman says, that federal
habeas courts should reexamine the merits of all federal constitutional
claims (pp. 141-42). The only real issue in Brown, which Freedman
apparently sees as an entirely separate matter, was whether a federal habeas
court should give weight to the Supreme Court's denial of certiorari in
undertaking that reexamination (pp. 95, 99).
discussed in part II, Frank and Moore did not establish the
broad principle that Professor Freedman attributes to them, and the
subsequent pre-Brown case law that purported to expand habeas review
to more constitutional claims was confined to federal criminal cases and
thus did not pose the federalism concern that arises when a state conviction
is challenged. But even putting all that aside, the historical materials
that Professor Freedman presents could not be clearer in demonstrating the
polar opposite of the claim he makes for them: that is, the appropriate
weight to be given to a state court's determination of the merits of a
federal claim was very much on the table in Brown.
matter of logic, the relevance of a denial of U.S. Supreme Court review, the
issue that Freedman admits was disputed in Brown, is directly related
to the weight to be given a state court's determination of the federal
issue. Whatever consideration is given to the Court's denial of certiorari
is tantamount to a concomitant grant of deference to the state court
decision that the Supreme Court had allowed to stand without comment.
Ultimately, if enough weight were given to a denial of certiorari, a federal
habeas court would effectively defer completely to the state court's
determination on the merits of a federal claim. So, even if the
Court purported to
focus exclusively on the issue of the weight to be given a denial of
certiorari, it would necessarily be considering the degree of deference
appropriate for a state decision.
matter of historical fact, however, the communications among the justices
and their clerks demonstrate that the Court explicitly considered the weight
to be given the state court's resolution of the federal issue. Justices Reed
and Frankfurter circulated a joint memorandum setting out the two issues
facing the court. The first was the effect of a denial of certiorari; the
second read: "The bearing of the adjudication by the state court of federal
claims upon the [federal] district court's disposition of the application
for habeas corpus..." (p. 110). A subsequent Frankfurter memorandum
recognized that the Court had completed its work on the first issue by
deciding that a denial of certiorari would have no effect on a subsequent
habeas petition, but that more deliberation was needed "regarding the
relation of the State proceedings to proceedings in the District Court" (p.
Professor Freedman points out that Reed tried to convince Frankfurter that
the two actually agreed on the state court deference issue (pp. 113-14).
Nevertheless, Frankfurter persisted in expressing concern about Reed's
approach, and that concern was apparently justified. On Reed's own copy of
one of Frankfurter's memoranda next to a passage reading "[i]t is
inadmissible to deny the use of the writ merely because a State court has
passed on a Federal constitutional issue," Reed hand-wrote "Why? No reason
not to" (p. 114 and n. 54). Freedman argues that this note was referring to
the right to an evidentiary hearing rather than to the scope of review. In
context, however, Reed's memoranda indicate that he believed federal courts
ordinarily ought to defer to the state court's decision, although he
recognized that in exceptional circumstances a federal court could reexamine
the merits. That position reflected existing law quite accurately,
but contrasted sharply with Frankfurter's view that a federal court should
review de novo the merits of all federal claims.
Lending support to the belief that there was a continuing divergence of
views, the two justices were unable to reach agreement on an opinion on the
state deference issue, leading to confusing dual-majority opinions. Reed
compared the scope of review of a state court decision to the scope of
review applied to a second habeas petition in a federal case after one court
had already rejected the petition: "a refusal of the writ without more, if
the court is satisfied, by the record, that the state process has given fair
consideration to the issues and the offered evidence, and has resulted in
a satisfactory conclusion..." (p. 117). Although Reed purportedly added
the highlighted language to appease Frankfurter, the meaning of the passage
is hardly beyond dispute. At a minimum, it is inconsistent with
Frankfurter's proposal that a federal habeas court should give the rulings
of a state court "the weight that federal practice gives to the conclusion
of a court of last resort of another jurisdiction on federal constitutional
law issues," which is to say whatever persuasive authority can be found in
the reasoning of the opinion and nothing more.
persistence of this disagreement between Reed and Frankfurter should not be
surprising. No matter how much Reed may have protested that he did not
disagree with Frankfurter on the state deference issue, his belief that some
weight should be given to the denial of certiorari ensured that he could
never fully support Frankfurter's de novo review approach. Perhaps for this
reason, Justice Frankfurter never ceased rebuking Justice Reed for
suggesting that a federal habeas court should ordinarily deny the writ where
a state court had given "fair consideration" to the merits. "Callous and
even cruel though it may seem," Frankfurter wrote in an internal memorandum,
"the fate of the four petitioners is to me a matter of little importance.
What this Court may say regarding the writ of habeas corpus I deem of the
profoundest importance. Put in a few words, it makes all the difference in
the world whether we treat habeas corpus as just another legal remedy in the
procedural arsenal of our law, or regard it as basic to the development of
Anglo-American civilization and unlike other legal remedies, which are more
or less strictly defined" (p. 112). For habeas corpus to live up to the role
Frankfurter thought it should play, he contended that it could not "be
imprisoned within any such rubrics as 'jurisdiction,' or 'habeas corpus is
not a substitute for appeal,' etc., etc..." (p. 112).
Professor Freedman argues that Frankfurter sought only to maintain the
writ's existing scope, not to extend it further. But those verbal
rubrics criticized by Frankfurther were not the creation of Justice Reed. On
the contrary, they were precisely the ones that the Court had used
repeatedly to describe the deference appropriate to a state court decision
in virtually every state habeas case prior to Brown. In firmly
rejecting those limits on federal review, Brown was indeed a seminal
Professor Freedman has greatly expanded our knowledge about three critical
events in the development of habeas corpus doctrine. But the conclusions he
draws from those materials--principally that the framers intended to impose
a constitutional requirement of federal habeas review of state criminal
convictions and that the federal courts engaged in careful scrutiny of all
constitutional violations throughout the twentieth century--are contradicted
by the primary sources that he cites. As one who has great sympathy for
Professor Freedman's point of view, I wonder whether his use of history to
support a less than thoroughly convincing argument for expansive habeas
review will end up being cited in favor of new restrictions on habeas
corpus. The Court has never seriously questioned that the Constitution
compels Congress to provide for federal judicial scrutiny of decisions
restraining individual liberty, including state criminal convictions.
Absent unequivocal historical evidence, the place to look for the bounds of
that constitutional mandate is in the evolving notions of due process that
arose with the adoption of the Fourteenth Amendment and developed in the
latter half of the twentieth century, rather than among the quite different
concerns that motivated the drafters of the Suspension Clause and the first
Judiciary Act and the justices who decided Bollman, Frank,
Moore, and even Brown.
U.S. Const. Art. I, § 9, cl. 2 ("The Privilege of the Writ of Habeas Corpus
shall not be suspended, unless when in Cases of Rebellion or Invasion the
public Safety may require it.").
First Judiciary Act, ch. 20, § 14, 1 Stat. 73, 81-82 (1789).
237 U.S. 309 (1915).
261 U.S. 86 (1923).
344 U.S. 443 (1953).
See, e.g., Chester James Antieau, The Practice of Extraordinary Remedies:
Habeas Corpus and the Other Common Law Writs, vol. 1, sec. 1.01, p. 1
(1987); William F. Duker, A Constitutional History of Habeas Corpus
(1980); Clarke D. Forsythe, "The Historical Origins of Broad Federal Habeas
Review Reconsidered," Notre Dame Law Review 70 (1995): p. 1079; Ann
Woolhandler, "Demodeling Habeas," Stanford Law Review 45 (1993): p.
575; James S. Liebman, "Apocalypse Next Time? The Anachronistic Attack on
Habeas Corpus/Direct Review Parity," Columbia Law Review 92 (1992): p. 1997;
Gary Peller, "In Defense of Federal Habeas Corpus Relitigation," Harvard
Civil Rights-Civil Liberties Law Review 16 (1982): p. 579; Paul Bator,
"Finality in Criminal Law and Federal Habeas Corpus for State Prisoners,"
Harvard Law Review 76 (1963): p. 441.
Here is a small taste of what Professor Freedman dishes out: In commenting
on the differing results in Frank and Moore, Freedman quotes
correspondence between Justice Louis Brandeis and then-Justice-to-be Felix
Frankfurter, two of the greatest legal minds of the twentieth century.
Frankfurter asked Brandeis why the Court had granted the writ in Moore,
after denying it in Frank, given that both cases involved compelling
allegations that threatening mobs undermined the fairness of the trials.
Rather than engage some legal nuance that was surely there for the
taking--indeed Freedman details several legal arguments on this question
just pages before (pp. 86-87)--Brandeis explained the cases entirely by
commenting on the men who decided them. "Pitney was gone," he wrote,
referring to Associate Justice Mahlon Pitney who had left the Court by the
time Moore was argued (p. 89). Brandeis continued by describing Pitney as
having "a great sense of justice ... but no imagination whatever. And then
he was much affected by his experience & he had mighty little...." Perhaps
even more interesting were Brandeis's comments about whether to join an
opinion for the Court or to dissent. He wrote of practical limits on
dissenting based on concerns about "exasperating men" and the constraints of
time--"Holmes [the author of the majority opinion in Moore] shoots
down so quickly & is disturbed if you hold him up." Brandeis added that he
had to consider cases of his own "as to which you do not want to antagonize
on a less important case, etc. etc." (p. 89). One cannot help but wonder
whether Brandeis was hinting that he provided an inconsequential vote for
Holmes's opinion granting the writ in Moore in order to secure
Holmes's support for one of Brandeis's own more important opinions.
Freedman has this to say about his technique: "to say that one legal theory
or another provides a more persuasive explanation for the differing outcomes
... is to say a good deal, even if one is thinking historically. For it is
that explanation--and not the one closer to capturing the texture of the
contemporary events of the past ... --that is likely to have the most impact
on the future" (p. 90).
Although the Court has never squarely addressed the Constitutional minimum
level of habeas review of judicial detention, it has repeatedly taken
seriously the argument that some review is constitutionally required.
I.N.S. v. St. Cyr, 533 U.S. 289, 300-01 (2001) (finding that
interpretation of statute to prohibit all review of certain detention
decisions would raise a serious constitutional question); Felker v.
Turpin, 518 U.S. 651, 663-64 (1996) (assuming Suspension Clause limits
any contraction of the writ); Swain v. Pressley, 430 U.S. 372, 380
(1977) (holding that eliminating habeas review without providing an adequate
substitute would raise serious constitutional questions); United States
ex rel. Turner, 194 U.S. 279, 295 (1904) (Brewer, J., concurring)
(interpreting opinion of the Court as consistent with the notion that "the
courts may and must, when properly called upon by petition in habeas corpus
examine and determine the right of any individual restrained of his personal
liberty to be discharged from such restraint. I do not believe it within the
power of Congress to give to ministerial officers of final adjudication of
the right to liberty, or to oust the courts from the duty of inquiry
respecting both law and facts."); Ex parte Yerger, 75 U.S. (8 Wall.)
75, 95 (1868) ("The terms of this provision necessarily imply judicial
action. In England, all the higher courts where open to applicants for the
writ, and it is hardly supposable that, under the new government, founded on
more liberal ideas and principles, any court would be, intentionally, closed
to them."); see generally Jordon Streiker, "Incorporating the Suspension
Clause: Is There a Constitutional Right to Federal Habeas Corpus for State
Prisoners?" Michigan Law Review 92 (1994): p. 862 (finding
constitutional support for a right to federal habeas review of state
criminal cases in the Fourteenth Amendment). The alternative position that
the Suspension Clause does not preserve a constitutional minimum level of
review, or alternatively that that minimum level is fixed at the level of
review recognized by the common law as of 1789, has never commanded a
majority of the Court. And with good reason. Criminal procedural was
markedly different in the late eighteenth century than it is today. Among
other things, "incarceration was not routinely imposed as a means of
postconviction punishment for criminal acts until the nineteenth century"
(Marc M. Arkin, "The Ghost at the Banquet: Slavery, Federalism, and Habeas
Corpus for State Prisoners," Tulane Law Review 70 : pp. 1, 11).
On the contrary, Freedman argues that "history should be written without
presentist bias, and public policy formed without being unduly constrained
by the past" (p. 147).
See, e.g., Swain v. Pressley, 430 U.S. 372, 384 (1977) (Burger, C.J.,
concurring in part and concurring in judgment) ("The sweep of the Suspension
Clause must be measured by reference to the intention of the Framers and
their understanding of what the writ of habeas corpus meant at the time the
Constitution was drafted.").
See n. 9 above.
In Freedman's words, "the 'fact' that Congress effectually withheld the
federal writ from state prisoners in 1789 has been a premise of
substantially all judicial and academic writing on the Suspension Clause"
(p. 46); see also p. 9, describing this viewpoint as "firmly entrenched
wisdom." The Supreme Court has regularly proceeded on this assumption. See,
e.g., Felker v. Turpin, 518 U.S. 651, 659-60, 663 (1996); Fay v.
Noia, 372 U.S. 391, 409 (1963) ("The first Judiciary Act did not extend
federal habeas to prisoners in state custody....").
U.S. Const. Art. I, § 9, cl. 2.
Zechariah Chafee, Jr., "The Most Important Human Right in the Constitution,"
Boston University Law Review 32 (1952): pp. 143, 145.
The passage read, "the writ of habeas corpus shall be enjoyed in this
government in the most expeditious and ample manner: and shall not be
suspended by the legislature except upon the most urgent and pressing
occasions, and for a limited time not exceeding-----months" (p. 12).
Four state ratifying conventions explicitly objected to the absence of an
affirmative guarantee of habeas corpus review in the federal Constitution.
Rex A. Collings, Jr., "Habeas Corpus for Convicts: Constitutional Right or
Legislative Grace?" California Law Review 40 (1952): p. 340 and nn.
U.S. Const. Art. I, § 9, cl. 2 ("The Privilege of the Writ of Habeas Corpus
shall not be suspended, unless when in Cases of Rebellion or Invasion the
public Safety may require it.").
The Tenth Amendment confirms this limitation on the federal government quite
explicitly: "The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people" (Const. Amend X).
Freedman dedicates several pages to supporting his contention that the
Suspension Clause embodies a special protection for a federal habeas power
(interpreting concern with preserving the writ as a concern that "the habeas
corpus powers of the federal judiciary have not been unduly constricted";
pp. 14-19, 29).
Duker (see n. 6 above), interpreting the framers' intent with respect to the
Suspension Clause as protecting the writ of habeas corpus recognized in the
state courts from federal interference (pp. 126-180); see also Akhil R. Amar,
"Of Sovereignty and Federalism," Yale Law Journal 96 (1987): pp.
Freedman appears to recognize this point: "As a result of fears expressed
during the ratification process over the expansive Constitutional language
regarding federal judicial authority, there was heavy political pressure on
the First Congress to limit the scope of the federal court system" (p. 29).
Ex parte Bollman, 8 U.S. (4 Cranch) 75, 99 (1807) (explaining that
the proviso limiting the power to issue the writ to federal prisoners
"extends to the whole section" and thus prohibits both federal courts and
individual judges and justices from issuing the writ to state prisoners).
I.N.S. v. St. Cyr, 533 U.S. 289, 304 n. 24 (2001); Felker v.
Turpin, 518 U.S. 651, 664 (1996); Schlup v. Delo, 513 U.S. 298,
350 (1994) (Scalia, J., dissenting); Fay v. Noia, 372 U.S. 391, 400
Ex parte Door, 44 U.S. (3 How.) 103 (1845).
Ex parte Door, holding that the limitation on habeas jurisdiction
that prohibits the federal courts from granting the writ to state prisoners
"is so clear, from the language of the section, that any illustration of it
would seem to be unnecessary" (p. 105).
Indeed, Freedman makes this argument quite explicitly in the introduction to
the book, arguing that "acceptance of Marshall's interpretation has served
as conclusive evidence for the proposition that the right of state prisoners
to obtain federal habeas corpus was not originally protected by the
Constitution" (p. 3).
Freedman also contends that the punctuation in the original hand-written
version of the statute--which he reproduces in the book--at least suggests
that the third sentence modifies only the second (p. 30). To these eyes,
however, the punctuation between each of the sentences looks the same, thus
suggesting just the opposite.
Freedman argues that Chief Justice Marshall's opinion in Bollman
suggests that Congress could suspend the writ by doing nothing, a
possibility that contrasted sharply with the English practice that required
an Act of Parliament and thus would likely have shocked the framers (p. 26).
As the Court has recently recognized, Marshall's opinion is open to the
interpretation that Congress was constitutionally required to provide for
habeas corpus, because if it did not the Constitutional privilege for which
protection was mandated would be obliterated. Immigration and
Naturalization Service v. St. Cyr, 533 U.S. 289, 304 n. 24 (2001). But
even if Marshall meant that Congress could constitutionally fail to provide
any federal right to habeas review, Freedman's analogy to the English system
would be inapplicable because it ignores the distinction between a unified
and a federal system. Congress, by failing to create a federal habeas power,
could not suspend the writ in the sense that Parliament might suspend it in
England. At most, such an omission by Congress would leave federal courts
without habeas jurisdiction. But just as Parliament could not suspend the
writ in all English courts without an affirmative act, Congress could not
interfere with the power of the state courts to grant the writ without
In Freedman's words, "In the case of federal habeas corpus for state
prisoners, the authors wrote a statute containing the appearance rather than
the substance of a limitation on federal court authority" (p. 29, n. 7).
Professor Freedman recognizes that Congress provided writ of error review
over state criminal cases. Without addressing the possibility that this
power may have made federal habeas review unnecessary in the minds of the
first Congress, Freedman argues that it undermined serious scrutiny of
Marshall's Bollman dicta because there was another avenue of federal
review available to state prisoners (p. 29, n. 7).
This view is supported by contrasting Congress's approach to state cases
with its approach in federal cases where it granted federal courts habeas
jurisdiction over federal prisoners, but it did not create writ of error
jurisdiction in the Supreme Court to review federal criminal cases.
James S. Liebman & Randy Hertz, Federal Habeas Corpus Practice and
Procedure (3d ed., 1998), vol. 1, § 2.4d, pp. 43-46.
Ex Parte Door, 44 U.S. (3 How.) 103 (1845); Ex Parte Caberra,
4 F. Cas. 964, 966 (CD. Pa. 1805) (No. 2,278); Elkison v. Deliesseline,
8 F. Cas. 493 (C.D. S. C. 1823) (No. 4,366).
4 Stat. 634-35 (extending power of federal courts to grant the writ in favor
of a prisoner "committed or confined on, or by any authority or law, for any
act done, or omitted to be done, in pursuance of a law of the United States,
or any order, process, or decree, of any judge or court thereof,...").
5 Stat. 539 (extending power of federal courts to grant the writ in favor of
a prisoner held "on account of any act done or omitted under any alleged
right, title, authority, privilege, protection, or exception, set up or
claimed under the commission, or order, or sanction, of any foreign State or
Sovereignty, the validity and effect whereof depend upon the law of nations,
or under color thereof"); People v. McLeod, 25 Wend. 483 (N.Y. Sup.
Stat. 385 ("[T]he several courts of the United States ... shall have power
to grant writs of habeas corpus in all cases where any person may be
restrained of his or her liberty in violation of the constitution, or of any
treaty or law of the United States.").
See Forsythe, n. 6 above, pp. 1108-17.
The Court itself has interpreted each of these amendments to the habeas
statutes as coming in response to then-contemporary "grave political
crises." Fay v. Noia, 372 U.S. 391, 402 n. 9 (1963).
Wright v. West, 505 U.S. 277, 299 (1992) (O'Connor, J., concurring in
judgment); Forsythe, n. 6 above, p. 1139; Bator, n. 6 above, pp. 485-89.
Peller, n. 6 above, pp. 646-48; Henry M. Hart, Jr., "Forward: The Time Chart
of the Justices, The Supreme Court, 1958 Term," Harvard Law Review 73
(1958): pp. 84, 105; Curtis R. Reitz, "Federal Habeas Corpus: Impact of an
Abortive State Proceeding," Harvard Law Review 74 (1961): pp. 1315,
1329; Fay, 372 U.S. at 421.
Leibman, n. 6 above, pp. 2079-81.
Freedman makes this point a few times throughout this section of the book,
on pp. 50 and 88 (explaining that the decision to hold a hearing turned on
all relevant factors, including the rigor of the state's appellate process,
the outcome of that process, and the completeness of the record), p. 91 ("An
examination that integrates historical evidence and legal argument leads to
the conclusion that the power of a federal habeas corpus court to conduct an
independent investigation of the facts claimed to render a state conviction
unconstitutional was firmly established by Frank and strengthened by
Moore."), and on p. 96 (explaining that a federal habeas court may
re-determine the merits of any federal constitutional claim raised in a
state criminal proceeding).
Ex parte McCardle, 6 Wall. 318, 325-26 (1867) ("This legislation is
of the most comprehensive character. It brings within the habeas corpus
jurisdiction of every court and of every judge every possible case of
privation of liberty contrary to the National Constitution, treaties, or
laws."); Ex parte Bridges, 2 Woods 428, 432 (Cir. Ct. N.D. Ga. 1875)
(No. 1,8732) (holding that habeas statute granted federal courts the power
to grant the writ to redress a federal constitutional violation before state
appellate processes were utilized).
Cook v. Hart, 146 U.S. 183, 194-95 (1892) ("While the federal courts
have the power and may discharge the accused in advance of his trial, if he
is restrained of his liberty in violation of the federal constitution or
laws, ... the practice of exercising such power before the question has been
raised or determined in the state court is one which ought not to be
encouraged."); Ex parte Royal, 117 U.S. 241, 252-53 (1886).
McNally v. Hill, 293 U.S. 131, 138 (1934) (applying prudential
requirements post-Moore); Ash v. United States ex rel. Valotta,
270 U.S. 424, 426 (1926) (same); Knewel v. Egan, 268 U.S. 442, 446
(1925) (same); Henry v. Henkel, 235 U.S. 219, 228-29 (1914)
(describing pre-Frank practice).
Knewel, 268 U.S. at 447.
Ash, 270 U.S. at 426.
Bator, n. 6 above, p. 500.
Freedman makes this point a few times throughout this section of the book,
on p. 98 ("To adopt th[e] theory [that Brown expanded the scope of
habeas review] has always required ... a certain willingness to suspend
disbelief: the idea that a permanent revolution in the law of habeas corpus
took place because of an unexamined novel assumption silently shared by
eight Justices who collectively wrote six opinions in a controversial area
of the law is implausible at best.... In any event, we now have direct
evidence that the theory is wrong, as the next chapter shows."), and p. 143
("The theory that independent federal habeas corpus review of the
constitutional validity of state criminal convictions is a modern innovation
attributable to Brown is simply inconsistent with the historical
Freedman explains that Darr v. Burford, 339 U.S. 200 (1950), had
required a petitioner to seek certiorari in the U.S. Supreme Court prior to
petitioning for habeas review and that this decision caused confusion in the
lower courts as to what, if any, weight should be given to such a decision
denying certiorari in a subsequent habeas proceeding (pp. 95, 99, 100-103).
For what it's worth, in an internal memorandum to Justice Jackson, then law
clerk William Rehnquist interpreted existing law in this fashion (p. 120)
("[T]he important question of the weight to be given to previous
adjudication by state courts has never been squarely decided recently, and
language supporting any view can be found in the opinions.").
For examples of Reed's comments in this regard see p. 114 (asserting federal
courts have ability "to take up those unusual situations" when justice is
not done in state proceedings), and p. 117 (suggesting that "fair
consideration" and a "satisfactory result" in state proceedings, rather than
full consideration and the correct result are sufficient to
enable a federal habeas judge to deny the writ).
See n. 46 above.
Brown, 344 U.S. at 463.
In Wright v. West, three justices read this language as requiring
considerable deference to state court decisions. 505 U.S. at 287 (per
Thomas, J. announcing the judgment of the Court) ("We had no occasion [in
Brown] to explore in detail the question whether a 'satisfactory'
conclusion was one that the habeas court considered correct, as
opposed to merely reasonable").
Brown, 344 U.S. at 458.
Frankfurter wrote, "I don't want District Judges to assume that merely
because a federal claim has been examined in the state courts, it need not
be examined even once in a federal court" (pp. 109, 115, 117).
Freedman makes this point a few times throughout this section of the book,
on p. 112 (arguing that Frankfurter "was concerned not with broadening
[habeas jurisdiction] but with preventing a threatened narrowing of it"), p.
118 (asserting that "the Justices focused on the substance of the inquiry to
be made by the federal habeas court, their effort was not to broaden it, but
rather to insure that the published opinions would not be wrongly read as
narrowing it"); p. 131 ("Brown ... made no new law on the scope of
review"); and p. 142 ("Brown thus represented a restoration of the legal and
practical status quo ante that Darr had threatened").
See n. 46 above.
See n. 9 above.
Call Number: KF9011 .F74 2001
Habeas corpus--United States.
Federal government--United States.
Citation: Steven Semeraro. "Review of Eric M. Freedman, Habeas Corpus:
Rethinking the Great Writ of Liberty," H-Law, H-Net Reviews, January, 2004.
“Professor Freedman aims to show how those who want to
restrict the availability of federal habeas corpus for state prisoners have
‘based their arguments on a misapprehension of the Supreme Court’s landmark
cases’ (p.2)…Most of Professor Freedman’s conclusions regarding the cases
are convincing…[although] occasionally, [he] makes stronger claims than
justified by the evidence he offers.”
Kenneth M. Murchison, review of Habeas Corpus:
Rethinking the Great Writ of Liberty, by Eric M. Freedman, The
American Journal of Legal History 45 (July 2001): 343-344.