Tuesday, August 7, 2018
Robert Black has posted Proving AEDPA Unlawful: The Several Constitutional Defects of § 2254(D)(1) (54 Willamette L. Rev. 1 (2018)) on SSRN. Here is the abstract:
The Anti-Terrorism and Effective Death Penalty Act's restrictions on habeas corpus petitions by prisoners in state custody are a menace to our constitutional system, crippling one of the few effective tools to enforce constitutional due process guarantees against the states. Thus far, however, they have received no serious constitutional challenge. This article attempts to change that, arguing that § 2254(d)(1) is unconstitutional, but in a curious fashion. The law can be understood several different ways: as modifying the rules of decision for habeas petitions, as a partial withdrawal of habeas jurisdiction, or as a substantive alteration of the states' lawful imprisonment authority. Each of these has constitutional defects, but they are not the same defect: the first two violate the Suspension Clause, as that Clause should be understood, while the last would violate basic due process and constitutional supremacy. Therefore, while it is not possible to say exactly which constitutional provision AEDPA violates, we can say with confidence that, one way or another, it must be unconstitutional.