Making Habeas Work: A Legal History

Abstract

This is a short book, but it is heavy reading. It also has an agenda: to defend habeas corpus in its original purpose (to restrain extrajudicial, arbitrary imprisonments of individuals by federal or other legal authorities within the jurisdiction of the United States). The high point of this legal history is Boumediene v. Bush (2008), in which the Supreme Court upheld the right of some Guantanamo Bay detention camp prisoners to petition the writ of habeas corpus—against the George W. Bush administration's and Congress's wishes. An interesting question is whether history can truly prove anything about the validity of an individual court decision today, even if common-law practice is based on precedents. We know of a number of “precedents” once set by the Supreme Court that have since been overturned by that same Court because the common American understanding of decent social norms has changed over time. Be that as it may, Eric M. Freedman narrates dozens of cases since the colonial era, some in considerable detail, as related to habeas corpus or to a number of other legal proceedings by which the legality of detentions by local and government officials have been protested, prosecuted, and occasionally rejected in court, with fines levied.