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.