II. The Great Writ: History and Histrionics.

For state convicts today, the writ of habeas corpus has become a second appeal, in which they are entitled to receive, in the lower federal courts, a second review from scratch of claims already considered and rejected by the state courts. Calls to restrict this use of the writ have been around for as long as the usage itself. A quarter century ago, Judge Henry Friendly aptly described the reaction to proposals for reform: "Any murmur of dissatisfaction with this situation provokes immediate incantation of the Great Writ, with the inevitable initial capitals, often accompanied by the suggestion that the objector is the sort of person who would cheerfully desecrate the Ark of the Covenant."⁽⁶⁾

Little has changed in the intervening years. The following statement is typical of the misleading appeals to history which permeate the debate:

"Habeas corpus is the basis of all our freedoms. Tinkering with it is always a dangerous proposition, and must be done very carefully--more carefully, perhaps, than amending the Constitution itself, for it is habeas corpus that gives life to all of the Constitution's various guarantees of individual liberty. It is habeas corpus which embodies the entire notion of individual rights against the government--a tradition rooted in Magna Carta and exalted by our founding fathers."⁽⁷⁾

This statement is based on a clever, misleading ambiguity. Is it intended to defend the writ of habeas corpus as it was known to the common law and the founding fathers? If so, it is completely true but also completely irrelevant, since no serious proposal before Congress suggests reducing the scope of habeas relief to anything less than it was in 1789. If the statement is intended to defend the expansion of the writ to new uses unknown to the common law, then its appeal to Magna Carta and the founding fathers makes no sense. A warning against "tinkering" with the ancient writ is no argument against a proposal to partially reverse some of the modern tinkering.

A strong argument can certainly be made that history is irrelevant here, and that Congress should simply decide on the merits whether re-review of already litigated issues is necessary or desirable. However, since the opponents of reform repeatedly claim history and heritage as a justification for relitigation of completed appeals, these claims need to be refuted.

Without qualification, habeas corpus was not available at common law to review a conviction of felony, entered by a court of competent jurisdiction, by another court which did not otherwise have authority to review that judgment. The function of the writ was to set free people who had been imprisoned illegally. An application by a duly sentenced traitor or felon was therefore summarily denied, since the conviction by a proper court was, on its face, a legally sufficient ground for the jailer to keep him in jail.⁽⁸⁾ For this reason, the celebrated Habeas Corpus Act of 1679 explicitly excluded from its operation persons convicted of a felony.⁽⁹⁾ In one famous case, a contempt citation was reviewed by another court on habeas, but that decision very clearly and explicitly distinguished contempt proceedings, which were initiated, tried, and decided by a single judge, from felony cases, where the defendant had the protections of the common law, especially trial by jury.⁽¹⁰⁾

In this country, the writ was guaranteed against suspension in the original Constitution.⁽¹¹⁾ This clause, however, was well understood to refer to habeas for federal prisoners. The First Congress, consisting largely of the same people who wrote and ratified the Constitution, flatly prohibited the issuance of habeas for state prisoners by federal courts, except to bring them into federal court to testify.⁽¹²⁾ Some have contended that federal review of state convictions via habeas corpus is constitutionally required, but the unquestioned constitutionality of this section of the Judiciary Act is sufficient to refute that notion.⁽¹³⁾

The Constitution contained only a few constraints on state government in 1789, compared to its present scope, but it did contain some. The Ex Post Facto Clause of Article I, section 10, for example, is directed solely to state criminal prosecutions.⁽¹⁴⁾ The Bill of Attainder Clause of the same section was directed at an abuse well known to the people of that time which typically involved incarceration.⁽¹⁵⁾ Yet the First Congress created neither federal question jurisdiction nor federal habeas corpus to authorize the lower federal courts to enforce these limitations. Instead, the Constitution itself expressly directed state judges to enforce the supremacy of federal law.⁽¹⁶⁾ The assertion of one opponent of reform that since 1789 Congress has invariably provided federal habeas as a mechanism to enforce "every Federal right"⁽¹⁷⁾ is simply not correct.

The original Judiciary Act did give the federal courts authority to issue the writ for federal prisoners, as the Constitution requires, but it did not specify the grounds on which the writ should be granted. For answers to the question on when the writ ought to be issued by a court which had the power to issue it, the Supreme Court consistently looked to the common law. The writ could be used for pretrial review of whether a defendant ought to be committed for trial or released on bail,⁽¹⁸⁾ but in the case of Ex parte Watkins,⁽¹⁹⁾ the Supreme Court made clear that once a competent court had tried the case, a court which lacked appellate jurisdiction over that case could not hear an indirect appeal on habeas corpus.⁽²⁰⁾ The fact that the claim was based in the Constitution made no difference to this analysis.⁽²¹⁾

Opponents of reform have attempted to dismiss the Watkins case as dealing with the peculiarities of the Supreme Court's jurisdiction rather than the general principles governing habeas corpus.⁽²²⁾ This argument is specious. Chief Justice Marshall's opinion is cleanly divided between the jurisdiction of the court to issue the writ of habeas corpus, which was found to exist,⁽²³⁾ and the propriety of using the writ as a form of review of a final conviction, which was found to be improper.⁽²⁴⁾ The latter holding was recognized as precedent in other courts throughout the nineteenth century.⁽²⁵⁾

In 1833, Congress made an exception to the general rule that federal courts would not issue habeas for state prisoners, and it permitted issuance of the writ in cases where the states were interfering with federal officers.⁽²⁶⁾ The primary antebellum use of this exception was to suppress northern resistance to the Fugitive Slave Act and facilitate sending escaping slaves back into bondage.⁽²⁷⁾ Thus while the claim has been made that "[t]hroughout history [habeas corpus] has been the last bulwark against injustices born of racial prejudice and intolerance,"⁽²⁸⁾ the truth is that the first substantial use of federal habeas for state prisoners was for precisely the opposite purpose.

In 1867, Congress authorized federal habeas for "any person . . . restrained of his or her liberty" in violation of the Constitution.⁽²⁹⁾ This Act was passed primarily to enforce the recently ratified Thirteenth Amendment and other federal anti-slavery laws.⁽³⁰⁾ It did not alter the well-established Watkins rule that claims of error by a court of competent jurisdiction could not be reviewed by habeas corpus.⁽³¹⁾ For state prisoners wrongly convicted, another section of the same act created a remedy by writ of error to the Supreme Court.⁽³²⁾ The operative language of the habeas corpus act remains substantially the same to the present day.⁽³³⁾ Congress has never abrogated the Watkins rule. That change was made by the courts.

In a 1963 law review article, Professor Paul Bator of Harvard traced the expansion of habeas corpus from a limited review of jurisdiction at the turn of the century to a general review of all constitutional issues by the 1940's.⁽³⁴⁾ At least as late as 1944, however, re-review of questions already litigated in state court was the exception and not the rule.⁽³⁵⁾ That rule was changed without any real explanation in the 1953 case of Brown v. Allen.⁽³⁶⁾ Since then, with limited exceptions, the federal courts have reconsidered all federal constitutional questions, without regard to the fact that the highest court of the state may have already given full and fair consideration to that question and reached a decision well within the mainstream of American jurisprudence.

De novo review of completed litigation is a drastic measure. In a case of racial discrimination from the South in 1953, it is not difficult to see why it was considered necessary. Drastic measures, however, should be limited in duration to the circumstances that made them necessary. Gasoline rationing, for example, is a drastic measure which was necessary during periods of extreme shortage, but no one would even consider instituting or continuing rationing today. Past necessity says nothing about present necessity. The continuation today of a drastic measure from the days when overt resistance civil rights was commonplace is a curious phenomenon, to say the least. Has nothing changed since 1953?

If duplication of litigation is to be justified, it must be justified on contemporary considerations of policy. The history and heritage of the Great Writ provide no support for it.⁽³⁷⁾