JUSTIN J. WERTHabeas Corpus in America: The Politics of Individual Rights. (Constitutional Thinking.) Lawrence: University Press of Kansas. 2011. Pp. xiv, 285. $34.95.

Abstract

The movie The Hurricane (1999) tells the story of the former boxer Rubin “Hurricane” Carter, who was wrongly convicted of murder in a New Jersey state court and freed by a federal judge based on his habeas corpus petition. It is exactly that triumphalist image of habeas corpus, one of neutral federal courts preserving the rule of law and protecting individual rights, that Justin J. Wert questions in this book. Rather than serving as a bastion of political independence of the federal courts, Wert argues, habeas corpus has always been affected by the politics of the day, and has always been used as a political tool to serve the regime in power. Wert relates the history of habeas corpus in American society since the framing of the Constitution. During Chief Justice Earl Warren's era, habeas corpus did serve as a vital procedural mechanism for the protection of individual rights against state infringement, but both before and after Warren's period habeas has a considerably more complex history. Prior to the Civil War, habeas served as an instrument for the federal government to enforce the Fugitive Slave Act against recalcitrant state officials. Rather than providing an avenue for freedom, then, the Great Writ served as a tool of the slave power. During Reconstruction, Congress first empowered federal courts to review state court judgments in order to protect the rights of freed slaves and administer Reconstruction-era civil rights measures. However, between Reconstruction and the Warren Court era, the writ was granted only in extraordinary cases where the rule of law had utterly failed.