My friend and comrade Anthony Gregory, whom I blogged about here, has written a big, scholarly book: The Power of Habeas Corpus in America: From the King’s Prerogative to the War on Terror (New York: Cambridge University Press, 2013).
I’m sorry to say I have not read it yet. It lists for about a hundred bucks, but you can get a copy from the Independent Institute at a steep discount.
I knew that Anthony was writing it, and I knew the general topic, but it wasn’t until I read Allen Mendenhall’s review in the Freeman that I understood how radical, and how very Gregoryesque, the book turns out to be:
Sometimes it takes a non-lawyer like Gregory to remind lawyers of the philosophical implications of the practical and everyday functions of the law. Likewise, it takes a philosopher, again like Gregory, to show that a series of small legal victories is really one big loss in a larger scheme.
The foundational legal principle of habeas corpus is really one big loss? The principle that the state can’t hold you without cause, the one that Sir William Blackstone called “the most celebrated writ in the English law”? Does this mean that Thomas Jefferson was wrong to say, “Habeas Corpus secures every man here, alien or citizen, against everything which is not law, whatever shape it may assume.” How can libertarians oppose a legal doctrine that limits state power and secures individual rights?
Gregory’s scope is wide. He maps more than 400 years of legal history in roughly 400 pages and reminds us that the origin of the habeas remedy was not libertarian: “The king’s courts developed habeas corpus to centralize judicial authority and collect revenue.” His impressive sweep of history recognizes that “it took centuries before the writ was genuinely turned against the king’s oppression.” Ever since the Norman conquest, if not earlier, the writ of habeas corpus has been tied to royal or governmental prerogative. In the seventeenth century, in fact, the writ served as a procedural mechanism for ensuring that prisoners remained in prison rather than being released from prison.…
“For every vindication of a custodian’s power,” Gregory explains, “the authority to detain is upheld. For every undermining of a custodian’s power, 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.”…
At once a tool of liberation and authority, the writ of habeas corpus undermines State authority even as it validates and solidifies that authority. In other words, it enables the very power that it subverts. Because it destabilizes institutionalized power ultimately to sustain that power, the writ is, in Gregory’s words, “mythical” and retains an “idealistic mystique” … a “tool of usurpation and centralization.”
Mendenhall lauds Gregory’s approach and recommends it to “libertarian jurists and jurisprudents who appear to be moving toward stodgy consensus on a number of pressing legal issues.”
It might be that other pet favorites of these legal libertarians — say, incorporation of the Bill of Rights against the states — are really short-term techniques serving as vehicles to long-term, centralized power.
The book review is well worth a thorough read, as is, I’m sure, the book it reviews.