Saturday, August 29, 2015
This is the second part of a project whose first part — inspired by the interest in the common law writ of habeas corpus spurred by the Guantanamo Bay litigations — was published as Habeas Corpus as a Common Law Writ, 46 Harv. C.R.-C.L. L. Rev. 591 (2011).
This part of the project argues that understanding habeas corpus during the colonial and early national periods — and ultimately reclaiming its power today — requires understanding that it was just one strand in a web of public and private legal remedies restraining abuses of government power. This article documents, with heavy reliance on previously-unpublished sources, the extent to which in the colonial and early national periods habeas existed within an elaborate structure of public and private mechanisms for constraining government actors.
Among the implications of the piece is that the view of the current Supreme Court that protecting public officials from unwarranted damages liability is a judicial role is thoroughly ahistorical. Only during the first half of the 19th century did the system for controlling governmental abuses of power evolve into the patterns that now seem natural and pre-ordained.