The Great Writ
The following article was written by  and published at The Future of Freedom FoundationApril 16, 2014.

Among libertarians generally, there is a somewhat dependable tendency to hark back to the halcyon days of a supposed free age somewhere in the past, and to spotlight certain related features of Anglo-American legal history in service to that narrative. As those features are romanticized, they become totemic symbols of the classical-liberal tradition and its precursors, and are thus held away from criticism and analysis to a regrettable extent. In his new book, The Power of Habeas Corpus in America: From the King’s Prerogative to the War on Terror,Anthony Gregory attends to this propensity as it applies to the recondite legal doctrine of habeas corpus. And in dismantling facile, oversimplified conceptions of the Great Writ and its tangled history, Gregory reveals what he says “could be called a dark side of the writ,” offering in the process an encyclopedic study like few before it.

Part of the difficulty of chronicling habeas corpus is its inherent insusceptibility to easy definition. The celebrated and widely read English jurist William Blackstone — cited early in the book for his rather sunny view of habeas corpus — acknowledged part of the writ’s complexity in writing that “there are various kinds made use of by the courts.” Avoiding conflating these “many varieties of the article” (quoting Edward Jenks), Gregory solicitously treats linguistic arguments that attempt to pierce the shadows of a distant history to shed light on the origins of habeas corpus as we know it. Throughout his book, Gregory’s review is enriched by his understanding that habeas corpus is, like most creatures of the common law, not a single, “clear-cut doctrine” to be assessed as one monolithic whole. It is a swirling medley of historical, political, and legal currents that have often flowed at cross-purposes, with expediency, not principle, determining the tides. Gregory demonstrates the frailty of the stock appeal to the writ as a categorically libertarian instrument by featuring a host of skirmishes in which one power bloc leveraged habeas corpus to check the power of another. Explanations of struggles between Parliament and the Crown, higher and lower judicial officials, and the states and the federal government whittle away at the mythologies that have encrusted habeas corpus.

Gregory’s thesis about the fickle character of habeas corpus, its dual nature in relation to individual liberty, comes to the fore in the discussion of “judicial activism” that surfaces in the book. If historical habeas corpus has never been quite as formidable a force as its idealized, imaginary version, then upsurges in its power have been the results of activism from the bench almost per se. On the grounds of vertical federalism, conservatives and even many libertarians could take exception to the Supreme Court’s mid-20th-century habeas corpus jurisprudence. But by effectively expanding federal courts’ power to review state courts’ decisions, those cases “marked an expansion of habeas corpus in its scope,” a turn that redounds to the benefit of the individual.

Gregory’s survey of the cases illustrates the broader point that, even taken on its own terms, the kind of “judicial restraint” fervidly counseled by conservatives would produce (and has produced) results both libertarian and not. Libertarian views of deference to precedent should thus be as shaped by expediency and consequence as are those of the state and its agents; it does not profit the liberty movement to play into the hands of tyrants by mechanically accepting their standards and rules — which they themselves readily ignore whenever it serves them. The radicalized form of habeas Gregory hopes for would be a departure from historical precedent, not a continuation of it — and that is exactly the point. Because his interpretations and analyses of the historical record are radical, Gregory’s book will almost certainly bear all of the familiar cries of cynicism from all quarters of power apologists. It is not cynicism, however, that pervades the book, but discernment. One wishes there was more libertarian revisionism of such a high quality, especially in the academy.

A more accurate picture

Certainly there have been earlier attempts to revise the record of habeas corpus to add needed nuance to the picture of the Great Writ, but none so dauntless or so complete. Gregory’s is a scholarly achievement, equipped even with a chart of historical terms (full of legal Latin, the large part of which the author of this review, an attorney, could not define). A number of habeas books over the past decade or so have emerged, essaying to offer a fuller picture of the writ, capable of shedding some of the mystique and romance that has clothed it. Paul D. Halliday’sHabeas Corpus: From England to Empire, published in 2010 by Harvard University and referenced by Gregory, contributed in no small way to the undertaking that Gregory so adeptly continues in his book. Rather than approaching the writ as “something grander” than it actually is or ever was, Halliday made it his goal to balance and remedy a record that too often “has been written less as a history than as an exercise in legal narcissism.”

Legal narcissism is, of course, itself a well-documented piece of the American historical experience. So much of what has prevented Americans (libertarians included) from accepting or at least honestly confronting deeper, more consistent — that is, more radical — accounts of power relationships is the tendency to impute the growth of government and erosion of individual liberty to an insufficient adherence to their own historical legal values. Were we to just go back to X (fill in the blank: the Constitution, the ideas contained in the Declaration, the Articles of Confederation, Magna Carta, habeas corpus, or some other favorite), we could have the good government and laws that we were promised.

This longing, retrograde gaze is in fact what has provided the precarious common ground between American libertarians and conservatives. Gregory’s book is important, then, not just for painting a more accurate picture of habeas corpus, but also for, by logical extension, disenchanting those who would see a libertarian Eden somewhere in the past. If there is something approaching a libertarian paradise to be had in the future, it cannot be a result of backward-looking invocations of a varied Anglo-American legal history; rather it will have to issue from a healthy, prudent distrust toward that past, an unflinching readiness to subject it to just the kind of trenchant scrutiny provided in The Power of Habeas Corpus in America. Indeed, few habeas scholars have been willing to face “fully the ironic affirmation of power that it also implies,” even when it is used as a liberatory device. “For every undermining of a custodian’s power [over a prisoner],” Gregory observes, “there is the affirmation of another official’s power — a judge’s power, to say nothing of the state’s general power to decide whom to detain.” This is the glaring trouble with libertarian appeals to legal protections, whether grounded in habeas corpus, the Constitution, or something else. As a matter of course, all such theories and arguments tacitly admit the arbitrary power of the state over the lives of individuals.

To be sure, Gregory’s disquisition into the minutiae of habeas and its legal context is not for the faint of heart, or even necessarily the only moderately interested in the subject matter; exhaustively, expertly researched and teeming with footnotes and legal terms of art, his book does not read like a trendy member of the New York Times nonfiction bestsellers, though it is never wearisome or needlessly donnish in its air. For those unshrinking before arcane Latin terms and legal citations, The Power of Habeas Corpus in America presents a rich reward, as comprehensive a probe into such a massive history as can be advanced in 416 pages. If this is a promise of things to come from Gregory, history lovers and libertarians are in for a treat.

The Power of Habeas Corpus in America: From the King’s Prerogative to the War on Terror by Anthony Gregory (Independent Institute/Cambridge University Press 2013), 390 pages.

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