Incorporating the suspension clause: is there a constitutional right to federal habeas corpus for state prisoners?

AuthorSteiker, Jordan

In the early 1960s, the Supreme Court adopted generous standards governing federal habeas petitions by state prisoners. I At that time, the Court suggested, rather surprisingly, that its solicitude toward such petitions might be constitutionally mandated by the Suspension Clause,(2) the only provision in the Constitution that explicitly refers to the "Writ of Habeas Corpus.113 Now, thirty years later, the Court has essentially overruled those expansive rulings,4 and Congress has considered, though not yet enacted, further limitations on the availability of the writ.5 Despite these significant assaults on the habeas forum, the constitutional argument appears to have been entirely abandoned. The liberal minority on the Court has not mentioned the Suspension Clause in over a decade, and legislative as well as academic supporters of habeas have scarcely alluded to the Constitution as a bulwark against the writ's further demise.6

The question, then, is whether the constitutional claim that surfaced briefly to support the writ's unparalleled expansion during the 1960s is as much of an embarrassment as its total disappearance would suggest. I will argue that the claim is far from an embarrassment and, indeed, draws support from a variety of familiar forms of constitutional argument, including history, text, doctrine, and structure.(7) Before elaborating the affirmative case, though, I will set forth the "doubts" that most likely account for the absence of any sustained effort to defend a constitutional right to federal habeas for state prisoners.

The first and most obvious response to the claimed constitutional right" of habeas corpus is that the current writ serves a far broader purpose today than its counterpart at the time of the Founding.(8) By 1789 and at common law, habeas was primarily used to challenge unauthorized pretrial detentions;(9) today, habeas permits a court to test the legality of a criminal conviction. Indeed, federal habeas currently allows state prisoners to relitigate issues of federal law that state courts have already addressed and decided on their merits.(10) From an originalist perspective, then, to the extent that the Constitution protects any substantive form of the writ, it enshrines at most a limited protection against indefinite confinement without the benefit of formal charges or a speedy trial. On this view, the more encompassing collateral review authorized by the habeas statute is a matter of legislative grace rather than constitutional command.(11)

There are other, equally serious difficulties with asserting a constitutional right to federal habeas relief for state prisoners. As a preliminary matter, the peculiar phrasing of the Suspension Clause raises doubts about whether the Clause affords prisoners even a qualified entitlement to habeas. The provision does not declare that a habeas remedy shall ordinarily be available to federal or state prisoners; in fact, such a proposal was suggested but not adopted at the Constitutional Convention.(12) Instead, the Clause merely specifies the circumstances under which the privilege may be withdrawn. Accordingly, the Clause might simply limit Congress's ability to abolish a judicial remedy that it is not elsewhere required to establish.(13) If, as Chief Justice Marshall stated in his famous dictum in Ex parte Bollman,(14) federal habeas jurisdiction exists only to the extent that Congress so provides, the protection of the Suspension Clause would be quite minimal; absent congressional action, "the privilege itself would be lost, although no law for its suspension should be enacted."(15)

Moreover, there is some reason to believe that the Framers designed the Suspension Clause principally to promote federalism - to ensure that Congress would not interfere with the power of state courts to afford habeas relief to federal prisoners.(16) On this understanding, the claim that state prisoners are constitutionally entitled to a federal forum is not only wrong, but destructive of the Clause's original function; requiring federal review of state criminal convictions weakens rather than strengthens state judicial power within the federal structure.

Finally, even if the Framers initially intended the Clause to safeguard the power of federal courts to issue writs of habeas corpus, they certainly did not understand that power to extend to state prisoners. Indeed, in its first effort to establish federal habeas jurisdiction, the Judiciary Act of 1789, Congress emphatically limited habeas review to prisoners in federal custody. 17 Over forty years later, in the wake of states' resistance to federal taxes, Congress permitted federal courts to issue writs for federal officers held in state custody.18 But it was not until 1867, more than three-quarters of a century after the Framers adopted the Constitution and the First Congress gave life to the federal judiciary, that Congress chose to extend the writ generally to state prisoners.19 Given this history, a proponent of broad federal habeas review of state criminal convictions faces seemingly insurmountable obstacles in asserting a constitutional basis for such jurisdiction.

One final objection is worth noting. The federal habeas remedy is significant today because it affords an opportunity for federal review of virtually all federal issues arising in state criminal proceedings - an opportunity that is, in the vast majority of cases, unavailable as a practical matter through the Supreme Court's certiorari jurisdiction. Were the lower federal courts not enlisted in the effort, federal habeas would surely cease to exist as an effective remedy for state prisoners. It is widely asserted, though, that the decision whether to divide the federal judicial power between the Supreme Court and the lower federal courts remains wholly within Congress's discretion.(20) Under this view, attributable to Henry Hart,(21) among others, Congress could abolish the lower federal courts altogether. Accordingly, Congress could vest whatever habeas jurisdiction is constitutionally required entirely in the Supreme Court. If this accepted wisdom about the "non-constitutional" status of the lower federal courts is sound, then any constitutional right to federal habeas for state prisoners would be vastly different from the habeas that exists today.22

The "original" Suspension Clause thus seems an unlikely source for constitutionalizing current habeas practice regarding state prisoners. However, given that traditional notions of federalism have been adjusted significantly over the past two hundred years, one may fairly ask whether any constitutional development after the 1789 ratification amplifies the limited protections secured by the Suspension Clause. If the Suspension Clause had been placed within the Bill of Rights, rather than Article I, the obvious source of such amplification would be the Fourteenth Amendment. Over the past several decades, many of the constraints on federal power contained in the Bill of Rights have been "incorporated" through the Due Process Clause to safeguard individual liberty against state intrusion.23 Should the Fourteenth Amendment likewise be read to "nationalize" a "right" originally conceived as a limitation on federal power notwithstanding its placement in Article I? What would an "incorporated" Suspension Clause look like?

Perhaps because the Suspension Clause has been a virtually empty source of liberty for federal prisoners, the question of its incorporation and application against the states has gone almost entirely unnoticed.(24) Or perhaps our doctrinal blinders have caused us to overlook the liberty-protecting provisions of the "unamended" Constitution in gauging the import of the Fourteenth Amendment.(25) Whatever the reason, the failure to address whether habeas review for state prisoners has been "constitutionalized" by the dramatic events of Reconstruction seems particularly surprising in light of the striking support for such a claim. After all, the "[P]rivileges or [I]mmunities" Clause of Section 1(26) certainly could be read to extend the only "privilege" specified in the Constitution to those detained by state authorities, without the necessity of the more circuitous "incorporation" route. Indeed, the framers of the Fourteenth Amendment frequently mentioned habeas as illustrative of the rights that would be newly safeguarded against state deprivation.(27) The virtually simultaneous congressional drafting of the fourteenth Amendment and decision to extend federal habeas review to state prisoners may not, in the end, be merely coincidental.

The fundamental claim in this article is that the Suspension Clause and the Fourteenth amendment together are best read to mandate federal habeas review of the convictions of state prisoners. The constitutional requirement does not flow from the fact that postconviction review of criminal sentences is a fundamental right or privilege of national citizenship. Indeed, federal prisoners cannot reasonably claim a constitutional right to such review. Rather, the argument rests on the importance of federal review of constitutional questions to the supremacy and enforcement of federal law. Even before the Civil War, the federal writ of habeas corpus had become an essential means of assuring full vindication of federal interests. Later, in the early years of Reconstruction, congress recognized that writ-of-error review of state criminal convictions by the Supreme Court was inadequate to ensure states' compliance with federal law. Accordingly, Congress radically expanded federal jurisdiction to encompass federal habeas review of all persons detained in violation of the Constitution or laws of the United States. This article will assert that the Fourteenth Amendment constitutionalized this supremacy-ensuring role of the federal courts such that Congress is obligated to make federal review of state criminal convictions practically available...

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