The Body Snatchers: How the Writ of Habeas Corpus was taken from the People of the United States

Abstract

While taking a sweeping look at the role of habeas corpus in the United States, this article orients the reader in all its facets with a return to the principles of the U.S. social compact. The origin of habeas corpus in the common law and equity jurisprudence, and its express protection in the U.S. Constitution, reveals habeas corpus jurisprudence as the high-water mark of judicial power in America. It represents a circumstance in which the U.S. social compact rides over every constitutional and legal provision in order to produce justice in the land. Thus this article contends for a return to the quality of justice at habeas common law from July 4, 1776 onward - that of the de novo review of the facts. It largely draws from the contributions of Justice Stevens who defended this quality of justice as a fundamental requirement of the Court time and again. This article therefore explains and confronts feudalism in America by demonstrating that it has always been ousted with the principle of establishing justice under the de novo review of the facts.Moving past a mere response to the infidelity of certain justices to the principles of the founding compact, this article expounds the social compact. Its purpose is to convince the Court and the American legal community at large to make a return to the principles of the United States. It is a clarion call back to the liberal equity and the common law established at the Revolution as a principle of U.S. government.