The Power of Habeas Corpus in America: From the King's Prerogative to the War on Terror

by Anthony Gregory

Overview

Despite its mystique as the greatest Anglo-American legal protection, habeas corpus' history features power plays, political hypocrisy, ad hoc jurisprudence, and failures in securing individual liberty. This book tells the story of the writ from medieval England to modern America, crediting the rocky history to the writ's very nature as a government power. The book weighs in on habeas' historical controversies - addressing its origins, the relationship between king and parliament, the US Constitution's Suspension Clause, the writ's role in the power struggle between the federal government and the states, and the proper scope of federal habeas for state prisoners and wartime detainees from the Civil War and World War II to the War on Terror. It stresses the importance of liberty and detention policy in making the writ more than a tool of power. The book presents a more nuanced and critical view of the writ's history, showing the dark side of this most revered judicial power.

Product Details

ISBN-13:	9781107065833
Publisher:	Cambridge University Press
Publication date:	04/15/2013
Sold by:	Barnes & Noble
Format:	eBook
File size:	5 MB

About the Author

Anthony Gregory is a Research Fellow for The Independent Institute. His articles have appeared in the Independent Review and the Journal of Libertarian Studies, and have been translated into multiple languages, reprinted in textbooks, and used in college courses on law and political science.

Table of Contents

Part I. A History of Power Struggles: 1. Common law, royal courts; 2. Parliament and the king; 3. Americanization; 4. Constitutional counterrevolution; 5. Fugitive slaves and liberty laws; 6. Suspension and civil war; 7. The writ reconstructed; 8. Lynch mob justice; 9. The writ in world war; 10. Federal activism and retreat; Part II. Executive Detention in Post-9/11 America: 11. Ad hoc detentions; 12. Bush's prerogative; 13. The dance of the court and the executive; 14. Obama's legal black hole; Part III. Custody and Liberty: 15. The great writ's paradox of power and liberty; 16. A remedy in search of a principle; 17. The modern detention state and the future of the writ.

Editorial Reviews

From the Foreword:
"Ask any American what his most important right is, and he is apt to mention the freedom of speech, the freedom of the press, or the freedom of religion … Very rare is the person who would respond by saying, 'The right not to be arrested and jailed arbitrarily', let alone mention the judicial writ that protects that right: the writ of habeas corpus. Lawyers know it as 'the Great Writ', and the myth holds that its availability from time immemorial is the chief reason that Anglophones have long been free. Anthony Gregory here does the estimable service of showing that the Great Writ was not always what we now understand it to be. He also lays out in excruciating, nay shocking, detail the 150-year trend, accelerating in our day, of reducing the Writ’s importance."
Kevin R. C. Gutzman, Western Connecticut State University, and author of James Madison and the Making of America

"In his insightful and timely account of habeas corpus, Anthony Gregory illuminates not only the promise, but also the limitations of what for centuries has been known as the 'Great Writ'. His treatment of this important subject is both eloquent and persuasive, enhancing our understanding of the relationship between law, power, and human liberty."
Jonathan Hafetz, Seton Hall University School of Law, and author of Habeas Corpus After 9/11: Confronting America’s New Global Detention System

"Habeas corpus is arguably the most important tool for peacefully repelling tyranny and effectively holding the government accountable for its interferences with personal freedom. It can reduce the government from a gang of armed thugs on its chosen turf to a gaggle of supplicant litigants in a neutral forum. In The Power of Habeas Corpus in America, Anthony Gregory reduces 400 years of Anglo-American legal and political history to a readable, thorough, compelling study of this natural and constitutional right. This book is so well researched and written, it will soon become the bible on all things habeas corpus for generations."
Hon. Andrew P. Napolitano, senior judicial analyst, and author of Theodore and Woodrow: How Two American Presidents Destroyed Constitutional Freedom

"Especially now, as individual rights are increasingly trampled with impunity by the state, Anthony Gregory’s combination of engaging historical narrative with astute legal analysis and impassioned moral advocacy provides an overview of issues surrounding the Great Writ that is simply invaluable."
Gary Chartier, La Sierra University, and author of Anarchy and Legal Order: Law and Politics for a Stateless Society

"… a "must-have" for judicial and legal studies shelves, worthy of the highest recommendation especially for college and university libraries."
James A. Cox, Midwest Book Review

"Gregory emphasizes paradoxes: how a writ designed to serve liberty began as a governmental power; how a writ initially designed for individuals accused of crime is primarily sought by those who have been convicted; and how a mechanism originally used by states to question federal detentions is now almost exclusively a federal preserve … Summing up: recommended. Upper-division undergraduate, graduate, research, and professional collections."
J. R. Vile, Choice

From the Publisher