A 'second Magna Carta': the English Habeas Corpus Act and the statutory origins of the habeas privilege.

• Author: Tyler, Amanda L.
• Position: Special Issue on the Federal Courts

"[I]f any person be restrained of his liberty ... [,] he shall, upon demand of his coun[sel], have a writ of habeas corpus.... And by ... the habeas corpus act, the methods of obtaining this writ are so plainly pointed out and enforced, that, so long as this statute remains unimpeached, no subject of England can be long detained in prison, except in those cases in which the law requires and justifies such detainer."

--Blackstone's Commentaries (1)

INTRODUCTION

It is a tremendous privilege to contribute to this special issue of the Notre Dame Law Review honoring the legacy of Daniel Meltzer's scholarship. Dan was, without question, a giant in our field. He was also a spectacular federal courts professor. As one of his former students, I was lucky enough to see him in action in the classroom. There, he was a towering figure who inspired his students with his brilliance, good humor, and unassuming nature. His approach to teaching fueled a deep intellectual curiosity in his students, and he seemed to enjoy most those moments when his students challenged a proposition that he had just advanced.

As a scholar, Dan was no different. As the others writing in this issue attest, Dan loved to engage with competing ideas--even when they were at odds with positions that he had taken in his own scholarship. My contribution to this collection is offered in that spirit, engaging as it does with some of Dan's work while also challenging some of its premises.

In 2007, Dan and his longtime regular co-author, colleague, and good friend, Richard Fallon, wrote a characteristically important and highly influential article on the common law origins of habeas corpus and their significance to modern habeas debates. (2) They entitled the work Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror? In the article, the two sought to promote what they called a "common law model" for tackling the many difficult questions of the reach and content of habeas protections implicated by the War on Terror. (4) As they described it, "the Common Law Model views courts as having a creative, discretionary function in adapting constitutional and statutory language--which is frequently vague, and even more frequently reflects imperfect foresight--to novel circumstances." (5) Their article contrasted "the Agency Model," within which "courts should regard themselves as the agents of those who enacted, or ratified, pertinent statutory or constitutional provisions" and "should assume that those provisions were framed to be as determinate as possible." (6)

In defending the Common Law Model, Fallon and Meltzer maintained that it "has historically dominated." (7) They continued:

[A] common law approach to habeas corpus issues has been not only historically dominant, but also, for the most part, historically successful. In the main, courts have managed to adapt generally stated norms of positive law to evolving notions of fairness, while also accommodating the imperatives of national security and practical governance. Much of the most important jurisdictional and substantive doctrine has been and remains judge-made. (8) Fallon and Meltzer were of course right that habeas corpus has a rich and storied common law background, as is documented well and extensively in historian Paul Halliday's masterful book Habeas Corpus: From England to Empire, (9) They were also right that such a model offers many attractive aspects from a normative perspective, not the least of which is its ability to adapt to changed circumstances and offer a framework for tackling problems with no clear historical analogs. As this Article explores, however, in tracing the Anglo-American development of habeas corpus jurisprudence, it is important to account for the statutory roots of the habeas privilege as well--particularly because statutory developments were designed in important respects to alter and constrain the common law courts' approach to habeas corpus.

Specifically, the English Habeas Corpus Act of 1679, passed by Parliament in the waning years of the Stuart dynasty, came in direct response to perceived failings by the royal courts and their common law writ to do enough to check executive excess at the expense of individual rights. (10) Unearthing the story of the backdrop against which the Act was passed and tracing its role in English law going forward reveals that the Act was enormously significant in the development of English law's habeas jurisprudence--far more so than most jurists and scholars recognize today. Further, extensive evidence of the Act's influence across the Atlantic dating from well before, during, and after the Revolutionary War demonstrates that much of early American habeas law was premised upon efforts to incorporate the Act's key protections rather than developed through judicial innovation. Most important of all, there is every reason to believe that the Act, along with its suspension by Parliament on several occasions in the late seventeenth and eighteenth centuries, established the suspension model that the Founding generation imported into the United States Constitution's Suspension Clause. (11) In other words, focusing exclusively on the common law writ and its judicial origins gives insufficient attention to what was a tremendously significant factor in the development of Anglo-American habeas jurisprudence--namely, the English Habeas Corpus Act, the very object of which was to constrain judges and harness the common law writ toward specific ends.

In concluding Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror, Fallon and Meltzer wrote that their goal in writing the article had been "to put war-on-terror issues that arise in habeas corpus cases into a new, broader, and illuminating perspective." (12) The article most certainly accomplished that goal. Even more than that, in offering a framework for approaching many hard questions that have arisen as part of the war on terrorism, Fallon and Meltzer sparked a host of new scholarly conversations on these topics. (13) Their proposed common law model, moreover, seems to have wielded considerable influence on the Supreme Court's approach in the blockbuster War on Terror decision in Boumediene v. Bush. (14) In Boumediene, a five-justice majority held that noncitizen detainees held by the United States Government as "enemy combatants" at the Naval base at Guantanamo Bay, Cuba, enjoyed the protection of the Suspension Clause. (15) Further, the Court concluded, the habeas privilege promised by that Clause required that the detainees be afforded a right to challenge their designation and military detention without criminal charges in an Article III court. (16) The influence of Fallon and Meltzer's work on the majority is apparent from Justice Kennedy's opinion for the Court, which relied upon their article in declaring that "common-law habeas corpus was, above all, an adaptable remedy. Its precise application and scope changed depending upon the circumstances." (17)

Justice Kennedy's opinion in Boumediene is emblematic of the common law model that Fallon and Meltzer's article promotes. The same is certainly true for the earlier War on Terror plurality decision by Justice O'Connor in Hamdi v. Rumsfeld. (18) Hamdi involved a habeas petition brought on behalf of a United States citizen challenging his long-term military detention as an enemy combatant. (19) After declaring that the proper framework for addressing his petition called for "balancing [the] serious competing interests" at stake, (20) the plurality opinion took into account a host of factors arising out of the circumstances of the capture and detention of Hamdi. Putting these together, the plurality concluded that Hamdi was entitled to a hearing with streamlined procedures to challenge his designation; at the same time, however, the plurality rejected his argument that his detention was categorically unconstitutional. (21) For Fallon and Meltzer, Justice O'Connor's approach struck a chord with the common law tradition of habeas corpus and validated the merits of the common law model. (22)

In my own scholarship, Fallon and Meltzer's work on habeas models prompted me to dig deeper into the historical backdrop that informed ratification of the Suspension Clause and think harder about the relevance of that history for questions of constitutional interpretation. This, in turn, has spurred work that has occupied me for many years since. (23) In the spirit of engaging with my federal courts professor one more time, this Article tells the story of the statutory origins of the habeas privilege--what Blackstone called a "second magna carta" (24)--and argues that any explication of the constitutional privilege and discussion of how courts should address modern Suspension Clause questions should account for the critical role that the English Habeas Corpus Act played in the development of Anglo-American habeas jurisprudence.

1. THE ENGLISH HABEAS CORPUS ACT IN THE ANGLO-AMERICAN LEGAL TRADITION

   The story of the writ of habeas corpus in Anglo-American jurisprudence is a complicated one. Part of the problem lies in the fact that historically, English law recognized both a common law and a statutory writ of habeas corpus. (25) The former, judicially created, was at its origins a prerogative writ that enabled the royal courts to act as an arm of the king in "demand [ing an] account for his subject who is restrained of his liberty." (26) The statutory writ, by contrast, was the product of parliamentary efforts to constrain the executive's authority. (27) Much of modern American habeas scholarship has downplayed the role of the statutory writ in the development of American habeas jurisprudence, but as I have detailed in other work, the English Habeas Corpus Act played a central role in that very development, wielding extensive influence over early American law. Indeed, no less than Blackstone, in the 1765 publication of his...