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Habeas Corpus

Rethinking the Great Writ of Liberty

Eric Freedman

Publication Year: 2001

Habeas Corpus is the process by which state prisoners—particularly those on death row—appeal to federal courts to have their convictions overturned. Its proper role in our criminal justice system has always been hotly contested, especially in the wake of 1996 legislation curtailing the ability of prisoners to appeal their sentences.

In this timely volume, Eric M. Freedman reexamines four of the Supreme Court’s most important habeas corpus rulings: one by Chief Justice John Marshall in 1807 concerning Aaron Burr’s conspiracy, two arising from the traumatic national events of the 1915 Leo Frank case and the 1923 cases growing out of murderous race riots in Elaine County, Arkansas, and one case from 1953 that dramatized some of the ugliest features of the Southern justice of the period. In each instance, Freeman uncovers new original sources and tells the stories of the cases through such documents as the Justices’ draft opinions and the memos of law clerk William H. Rehnquist. In bracing and accessible language, Freedman then presents an interpretation that rewrites the conventional view.

Building on these results, he challenges legalistic limits on habeas corpus and demonstrates how a vigorous writ is central to implementing the fundamental conceptions of individual liberty and constrained government power that underlie the Constitution.

Published by: NYU Press

Title Page, Copyright, Dedication

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pp. vii-viii

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pp. ix-x

Like many authors before me, I have found that bringing this book to publication took longer than I had anticipated. Over the course of the years, many dedicated professional archivists and librarians along with supportive friends and colleagues have provided invaluable assistance and guidance. It is a pleasure to record my gratitude to Nancy A. Grasser for her devoted ...

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pp. 1-6

In legal terms, habeas corpus is simply the name for the procedure by which a court inquires into the legality of a citizen’s detention. But habeas corpus is rarely discussed in merely legal terms. The name carries a special resonance in Anglo-American legal and political history: habeas corpus is universally known and celebrated as the “Great Writ of Liberty.” The reason is straightforward. The availability of habeas corpus means ...

Part I.

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pp. 7-8

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1. Introduction to Part I

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pp. 9-11

As proud heirs to the traditions of English liberty, the framers of the Constitution felt very deeply the importance of habeas corpus as a weapon against tyranny. Hence 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.”1 According to firmly entrenched wisdom, this provision was intended to ...

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2. The Origins of the Suspension Clause

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pp. 12-19

A review of the progress of the Suspension Clause as it traveled from the Constitutional Convention in Philadelphia through the state ratification conventions and into the Constitution reveals two salient features: (1) the powerful attachment of all debaters to safeguarding the availability of the writ so as to protect the liberty of individuals against its possible ...

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3. The Opinion in Ex Parte Bollman

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pp. 20-28

When the Jefferson Administration completed its first term in office, Vice President Aaron Burr (whose poisoned relationship with Jefferson had led to his being brusquely removed from the second-term ticket, and who was facing charges in New York and New Jersey for murder as a result of having killed Alexander Hamilton in a duel) found it prudent to travel ...

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4. Bollman’s Errors—I

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pp. 29-35

As Chapter 2 has described, the path of political wisdom in the debates over the Suspension Clause lay in presenting the habeas corpus powers of the federal judiciary as having not been unduly constricted. The path of political wisdom in the debates over the First Judiciary Act lay in presenting the habeas corpus powers of the federal judiciary as having not been unduly ...

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5. Bollman’s Errors—II

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pp. 36-41

Even if Marshall’s reading of Section 14 in Bollman as withholding from the federal courts the power to issue writs of habeas corpus to state prisoners were correct, it would by no means follow that those courts lacked the power. As suggested in Chapter 3, Marshall’s statement that courts created by written law could exercise only the powers explicitly granted by ...

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6. Some Suggestive Court Decisions

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pp. 42-45

Early jurists did in fact sometimes act as though only individual judges, and not courts, were bound by the proviso to Section 14. Concededly, the cases are neither sufficiently numerous nor sufficiently unambiguous to carry alone the burden of supporting my arguments. That is hardly surprising. After all, Bollman was the law from an early date. Moreover, the ...

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7. Conclusion to Part I

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pp. 46

One could certainly argue that even if the claims made so far are correct they are of purely academic interest. To be sure, 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. But, on the other hand, the statutory grant of jurisdiction ...

Part II

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pp. 47-48

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8. Introduction to Part II

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pp. 49-51

The landmark decisions in Frank v. Magnum1 and Moore v. Dempsey,2 in which seemingly indistinguishable facts led to starkly distinguishable outcomes,3 lie at the heart of the current controversy over the appropriate scope of federal habeas corpus review of state criminal convictions. In both cases, unpopular defendants tried in mob-dominated Southern ...

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9. The Legal Proceedings in Frank : The First Round

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pp. 52-57

Because of its prominence as a national news event, its resonance in the areas of sexual, racial, and religious relations, and its historical significance in helping launch the Anti-Defamation League of B’nai Brith and relaunch the Ku Klux Klan,1 Leo Frank’s story has been told many times—in historical works,2 in plays,3 and in at least one novel.4 In keeping ...

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10. The Legal Proceedings in Frank : Federal Habeas Corpus

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pp. 58-64

On December 17, 1914, Frank filed a petition in the United States District Court for the Northern District of Georgia seeking a writ of habeas corpus.1 The principal contention was that his absence from the courtroom at the rendition of the verdict was, under the circumstances, a denial of due process but the petition also asserted that the “trial did not ...

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11. From Frank to Moore

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pp. 65-67

Frank’s tragic aftermath aroused strong feelings throughout the country. Louis D. Brandeis, then in private practice, had already expressed concern about the case.1 Writing to Senator George Sutherland after its denouement, he referred to the “occurrences in the Frank case” as having “subjected the reputation of the Courts to severe strain” and urged Sutherland to prevent a repetition. 2 ...

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12. The Legal Proceedings in Moore : The State Criminal Proceedings

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pp. 68-72

Underlying Moore1 How the outbreak originated was sharply disputed at the time,2 and remained so for generations.3 The local white establishment called the events an “insurrection”—the product of an organization of violent ...

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13. The Legal Proceedings in Moore : The State Collateral Proceedings

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pp. 73-76

In three separate trials, all six Ware defendants were convicted once more, notwithstanding the testimony of two of them that they had previously been tortured. On appeal, the Arkansas Supreme Court again reversed and remanded for a new trial. In an opinion issued on December 6, 1920, it held: ...

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14. The Legal Proceedings in Moore :The Federal Habeas Corpus Proceedings

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pp. 77-85

On September 21, 1921, two days before their scheduled executions, the Moore defendants filed habeas corpus petitions in the United States District Court for the Eastern District of Arkansas.1 These petitions alleged that on September 30, 1919, while “petitioners and a large number of the members of their race were peaceably and lawfully assembled in their church house at or near Hoop Spur . . . white persons ...

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15. Frank v. Moore : The Legal and Historical Explanations

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pp. 86-92

Legal scholars have long differed irreconcilably in their explanations of the disparate outcomes of Frank and Moore in the Supreme Court of the United States. There are three leading theories. Paul M. Bator, a conservative Harvard Law School professor whom we shall see again in Part III, argued that the Moore “case is entirely consistent ...

Part III

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pp. 93-94

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16. Introduction to Part III

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pp. 95-96

Notwithstanding the deep historical roots of the searching review on federal habeas corpus of state criminal convictions, opponents of the practice seek to undermine its legitimacy by portraying it as a recent innovation. To do so, they have seized upon a remarkably unlikely target, Brown v. Allen.1 Crediting a law review article by Professor Paul M. Bator of ...

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17. Backdrop to the Construction of a Piltdown Man

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pp. 97-105

When the Justices released Brown, “[m]ore than 40,000 words and six separate documents were required to set forth their concurrences, dissents, and separate opinions.”1 This kaleidoscopic production received withering reviews. A commentator in the journal of the Philadelphia Bar Association mourned that “that peerless wit Mr. Dooley (Finley Peter Dunne)” was no ...

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18. The Drafting of Brown: The Core

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pp. 106-118

... the District Courts and the Courts of Appeals)”—before the conclusion of the Term, in light of the extensive work involved and the intervening distraction of the Steel Seizure Case.7 He concluded by suggesting that, rather than being reargued (so as to preserve the fiction that the Court cleared its docket at the end of each Term), the cases simply be held over. ...

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19. The Drafting of Brown: The Periphery

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pp. 119-129

During the various interchanges between the Justices, Justice Jackson had been fairly silent (although it had been his suggestion in conference that set Justice Frankfurter and Reed off on their respective reports), but by no means idle. In March, 1952, Justice Jackson’s law clerk, William Rehnquist, wrote ...

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20. The Brown Opinions

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pp. 130-134

The Court’s published decision dealt with two procedural topics. First, rejecting “the position of the Fourth Circuit,” it held 5–4 that a previous denial of certiorari was to be given no substantive effect by the judge ruling on a later federal habeas corpus petition.1 Second, reiterating law whose roots we have traced to Frank, it ruled that in determining ...

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21. The Pre-Bator Context of Brown

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pp. 135-139

None of the developments, judicial or legislative, that followed upon the release of the Brown decision support the view that it significantly reshaped the legal landscape. Nor did any of the contemporary antagonists over the appropriate scope of habeas corpus view it as having done so. Prior to the appearance of Bator’s article, Brown was just another, not particularly ...

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22. Understanding Brown

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pp. 140-144

Legally, Brown was an exceedingly minor event. On the issue of the federal habeas courts’ reexamination of state court findings its substantive standards were deferential in the extreme, and its procedural guidelines for when hearings should be held proved ephemeral. The only enduring law that the case made—rejecting any preclusive effect for certiorari denials, so ...

Part IV

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pp. 145-146

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23. Epilogue: Habeas Corpus as a Protector of Individual Liberty in a Federal System

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pp. 147-154

The connection between accurate history and sound public policy is, quite properly, an attenuated one; history should be written without presentist bias, and public policy formed without being unduly constrained by the past. Nonetheless, some of the main lines of the development of the habeas corpus story since 1976, when the Court upheld several contemporary ...


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pp. 155-228


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pp. 229-242

About the Author

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E-ISBN-13: 9780814728772
E-ISBN-10: 0814728774
Print-ISBN-13: 9780814727171
Print-ISBN-10: 0814727174

Page Count: 254
Publication Year: 2001