Vol. 14 No. 2 (February 2004)

HABEAS CORPUS: RETHINKING THE GREAT WRIT OF LIBERTY, by Eric M. Freedman.  New York:  New York University Press, 2003.  243 pp.  Cloth $45.00.  ISBN: 0-8147-2717-4.  Paper $18.00.  ISBN: 0-8147-2718-2. 

Reviewed by Christine Ludowise, Department of Political Science, Georgia Southern University.  Email: ludowise@georgiasouthern.edu   

In HABEAS CORPUS: RETHINKING THE GREAT WRIT OF LIBERTY, Eric M. Freedman builds a case emphasizing the importance of the writ of habeas corpus to the development of the United States as a constitutional republic that protects individuals from the excesses of government power.  Despite its importance, Freedman argues that the writ has been misunderstood historically.  To support his contention, he guides the reader through the circuitous and often confusing treatment of habeas corpus by reviewing four landmark cases in some depth.  Using primary sources to support his legal analysis, Freedman attacks the current paradigm that holds that the Court's power to grant habeas review may be limited by Congress.  He offers, in its place, a return to the original intent of the U.S. Constitution. 

Freedman divides his argument into four sections.  Part I examines the origins of habeas corpus and highlights a "fundamental error" that has plagued the Court's interpretation of the Suspension Clause since the Marshall Court.  Part II compares two landmark cases, FRANK v. MAGNUM (1915) and MOORE v. DEMPSEY (1923).  Although the facts in these cases were virtually indistinguishable, the Court denied relief in one and granted it in the other.  Part III debunks the myth that the Vinson Court used BROWN v. ALLEN (1953) to "revolutionize" the scope of habeas corpus review.  Finally, Part IV illustrates the present state of federal habeas review through a thumbnail sketch of MCCLESKEY v. KEMP (1987).  By placing habeas corpus within the system of checks and balances exemplified by federalism, Freedman argues that a return to the writ's constitutional roots is both possible and desirable.

In Part I, Freedman begins with a discussion of the Suspension Clause: "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" (p.9).  Using the records of the federal convention of 1787, notes, diaries, and speeches of delegates, letters, and other original sources, Freedman emphasizes the importance placed upon habeas corpus by both Federalists and Anti-federalists.  The pivotal concern did not focus on the power of courts-state and federal-to issue writs, but rather upon the repugnant idea that power might be suspended under some circumstances.  Freedman then moves to a review of the Marshall Court's decision in EX PARTE BOLLMAN (1807).  He states that John Marshall erred in BOLLMAN regarding the jurisdiction of the Court and those mistakes have guided Supreme Court decision-making in the arena of habeas corpus ever since.  From Freedman's perspective, the Suspension Clause read properly should prevent Congress from limiting the authority of the Court to free state prisoners using habeas corpus. 

In Part II, Freedman directs his attention to a comparison of two cases: FRANK v. MAGNUM (1915) and MOORE v. DEMPSEY (1923).  In both cases, Freedman notes, unpopular defendants were tried for murder by southern juries facing the prospects of mob justice.  Both defendants requested federal habeas corpus relief based on due process violations that had resulted in death sentences.  The Supreme Court granted relief in one case and not in the other.  In this section, Freedman illustrates the similarities between the two cases and makes the argument that these two decisions are not incompatible.  He focuses the reader's attention on the extralegal factors that affected the work of the Court.  Placing the decisions within an historical, as well as legal context, he argues that the rules established by FRANK were strengthened by the decision in MOORE, which provides continuity in the Court's overall treatment of habeas corpus.

In Part III, Freedman addresses the legitimacy of current habeas corpus review.  Taking issue with the assertion (which he attributes to Professor Paul M. Bator) that BROWN v. ALLEN (1953) demonstrated the Vinson Court's willingness to make new law in the area of habeas corpus actions, Freedman carefully outlines the development of the BROWN decision through case notes and draft opinions.  He places BROWN squarely within the legal tradition articulated in FRANK and MOORE, indicating that independent federal habeas review of state criminal convictions is nothing new. 

In Part IV, Freedman focuses on the challenges facing capital defendants in the United States today, arguing that they receive less due process than other defendants and prisoners.  Using MCCLESKEY v. KEMP (1987) as his example, he illustrates the barriers to habeas corpus review for most petitioners.  Freedman indicates that a robust federal review of state convictions and incarcerations would exemplify the checks and balances of a federal system of government and better protect individual rights from infringement by the state.

Overall, Eric M. Freedman has written a book that will engage the reader and should provoke discussion and argument in legal and academic circles for years to come.  Through the use of historical documents, case materials, draft opinions, and his own legal analysis, Freedman challenges prevailing beliefs about the jurisdiction and power of the federal judiciary.  In addition, he makes the Court's opinions accessible to the reader.  As with most discussions tracing the evolution of precedent and law, the key points of the arguments are not always easy to follow.  Freedman implicitly acknowledges this problem and attempts to lead the reader through the quagmire of judicial decision-making in a clear, concise fashion. 

Of course, no author is perfect.  In his introduction and conclusion, Freedman specifically directs his attention to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which limits federal court review of state prisoner convictions.  He also discusses Marshall's interpretation of the Judiciary Act of 1789.  It would have been nice to see additional attention paid to the role Congress has historically played in the Court's willingness to grant habeas corpus.  Although not mentioned by Freedman, the reader can see evidence of Marshall's asserted error in cases such as EX PARTE MCCARDLE (1869).  In 1868, Congress removed the Supreme Court's authority to hear appeals emerging from the 1867 Habeas Corpus Act.  Despite the justices' perceived sympathy for McCardle, the Court agreed that it no longer had jurisdiction.  Freedman pursues a specific route to his destination that seems to bypass some of the more obvious political landmarks along the way.  That is not to say his perspective is inaccurate or even incomplete.  Rather, I simply think he would have enriched the book by including the Court's decision-making vis-ˆ-vis habeas corpus placed within a larger historical and political context. 

Furthermore, the final chapter weakens the overall impact of this book.  It is in his epilogue where Freedman's argument loses its force-not because his points are not well articulated and accurate, but because his commentary is too concise and limited.  All of his previous sections are thorough, clearly demonstrating his understanding of and commitment to the subject.  The conclusion/epilogue seems to be the weakest link because there is not enough depth to his discussion.  Why pay short shrift to the most important part of the book?  In this section Freedman begins to tie his previous sections together to make a cogent rationale for change - a return to the original intent of the clause.  However, he spends only two pages placing his analysis within the context of federalism.  In the introduction, Freedman states, "A vigorous writ of habeas corpus implements one of their key responses - the creation of two levels of government that, in Madison's words, will 'control each other,' so that 'a double security arises to the rights of the people" (p.6).  It would be appropriate for him to return to that emphasis at the end.  This is a book about one of the most important - if not THE most important - limits on government power and excesses.  A commitment to routine and robust habeas corpus review, he argues, is essential.  Therefore, a greater emphasis on the checks it provides within a federal system of government would not be amiss.  

Despite some limitations, this is an engaging book and an important addition to the literature on judicial decision-making, constitutional law, and individual rights and protections.  Furthermore, given the current political atmosphere and the national (and international) attention directed towards habeas corpus review, as exemplified by the detainees at Guantanamo and domestic enemy combatants such as Jose Padilla, a better understanding of the Court's approach to the "great writ of liberty" is both necessary and proper.  This volume would serve nicely as a supplemental text for courses in constitutional law, judicial process and/or politics, and the death penalty, as well as broadly based seminars in American politics and jurisprudence.

CASE REFERENCES:

BROWN v. ALLEN, 344 US 443 (1953).

EX PARTE BOLLMAN, 8 US 75 (1807).

EX PARTE MCCARDLE, 74 US 506 (1869).

FRANK v. MAGNUM, 237 US 309 (1915).

MCCLESKEY v. KEMP, 481 US 279 (1987).

MOORE v. DEMPSEY, 261 US 86 (1923).

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Copyright 2004 by the author, Christine Ludowise.