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Introduction to Part I 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 protect only the right of federal—not state—prisoners to seek the writ in federal court.2 Thus, any such right that state prisoners may have by legislation3 is purely a matter of Congressional grace, and could be revoked at any time without violating the Suspension Clause. As the Introduction indicates, I believe that this view is erroneous. The purpose of Part I is to correct it. The origin of the mistake is dicta inserted by Chief Justice John Marshall into Ex Parte Bollman.4 In that case, Marshall discussed Section 14 of the Judiciary Act of 1789,5 which (with the addition of clause numbers for ease in following the argument), reads: And be it further enacted, [1] That all the beforementioned courts of the United States shall have the power to issue writs of scire facias, habeas corpus, [2] and all other writs not specially provided for by statute, [3] which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law. And that either of the justices of the supreme court, as well as judges of the district courts, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment .— [4] Provided, That writs of habeas corpus shall in no case extend to prisoners in gaol, unless where they are in custody, under or by colour of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify.6 Marshall’s opinion includes two key points. First, the proviso “extends to the whole section,”7 —that is, clause [4] limits both the first sentence of the section (relating to courts) and the second (relating to judges)—with the result that the Act does not (except in very limited circumstances) grant the 1 9 federal courts the power to issue writs of habeas corpus to state prisoners. Second, except to the extent affirmatively granted by statute, the federal courts lack the power to issue writs of habeas corpus.8 The provisions of the First Judiciary Act have long been given special weight in interpreting the Constitution.9 The idea that the statute might have violated the Suspension Clause by withholding the writ from state prisoners is accordingly thought to be most implausible. On the unexamined assumption that Marshall read Section 14 correctly, the conclusion has been thought to follow that the Clause did not extend to them.This chain of reasoning, however, contains three flaws, each independently fatal to reaching that conclusion. First, Section 14, read intelligently, does not deny federal courts the power to liberate state prisoners by habeas corpus but instead grants it. Marshall’s contrary statement in Ex Parte Bollman made political sense but does not make legal sense. Second, even if the statute did not affirmatively grant the power, the federal courts did not lack it. Common law and state law supplied the necessary authority. Thus, to arrive at the conclusion that the terms of Section 14 show that the Suspension Clause did not extend to state prisoners, one would have to leap a third set of hurdles: to read the statute as an affirmative statutory preclusion of the writ, and then to demonstrate that, so read, the statute was constitutional. This last position passes the limits of plausibility; if in fact Section 14 not only failed to grant the federal courts habeas corpus jurisdiction over state prisoners but actually denied it, then the statute was indeed unconstitutional. In the remainder of Part I, I seek to support these propositions as follows. Chapter 2 recounts the history of the Suspension Clause, in Philadelphia and during the ratification debates. It concludes that there was a broad consensus that the Clause as written would limit legislative interference with the right that both federal and state courts were assumed to possess: to release on habeas corpus both federal and state prisoners. I then take up Bollman. Chapter 3 lays out the legal...

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