Reviewed by Judith A. Baer, Department of Political Science, Texas A&M University. E-mail: j-baer [at] pols.tamu.edu.
editor’s note: Justin Wert's Habeas Corpus and the Politics of Individual Rights was the subject of an "Author Meets Critics" roundtable at the 2012 Midwest Political Science Association Meeting. This review is drawn from remarks prepared for that panel.
Justice Benjamin Cardozo once described freedom of expression as “the matrix, the indispensable condition, of nearly every other form of freedom” (Palko v. Connecticut, 1937). The privilege of the writ of habeas corpus is a similar “matrix” right, or, as Justin Wert calls it, an “umbrella right” (p.3). Habeas corpus is the indispensable condition of nearly every procedural right guaranteed in the U.S. Constitution. If people could be held in custody indefinitely, without recourse to a court, the rights to trial by jury, confrontation and counsel; immunities from self-incrimination and double jeopardy; the exclusionary rule; and the rest would be nugatory. The limitations and regulations on the death penalty that so frustrated William Rehnquist would never have been formulated. Habeas corpus is always with us. To appreciate its omnipresence is to grasp the value of Wert’s criticism of studies that “divide their analysis of the Great Writ of Liberty into extraordinary periods (such as war and crisis) and ordinary periods (such as its evolving use as a remedy for challenging criminal convictions)” (p.1). These two processes often go on at the same time. False dichotomies abound in social science, and Wert offers a cogent corrective to one of them. Unfortunately, he substitutes an exaggerated dichotomy of his own: the dichotomy between law and politics.
Habeas corpus, he writes, is both “a deeply legal concept” and the product of “political regimes” (pp.2, 3).” No argument here; but, given what political science knows about law, this is hardly a new discovery. We learned from Walter Murphy that everyone interprets the Constitution. And the three branches of government all work for the same institution; when people got paychecks, the judges’ checks were green with little square holes, too. I think the characterization of this book in the 2012 MPSA program states it better: “Habeas corpus, rather than being a purely legal concept, is, also a political construct and a product of political conflict.” This is my only criticism of the book, and I admit that it is less that destructive. Habeas Corpus in America is a must-read, a powerfully argued and expertly penned original contribution to the study of public law.
This book calls to mind an important question that I have explored earlier: how does a regime deny or abridge protected rights while adhering to the Constitution? One device is inherent in the text. The suspension clause (I.9.2) is one of two constitutional provisions that have a built-in weasel provision. Habeas corpus “shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” The prohibition contains a permission. Just as Cinderella knows she may stay out until midnight when she is told to be home by then, the reader of this clause knows that habeas may be suspended during rebellion or invasion if safety requires it. Similarly, The Third Amendment implies that soldiers may be quartered in any home in wartime (whatever that means) or with the owner’s consent; feminist jurisprudence has heightened our awareness of how problematic a concept “consent” is. The reader does not know who will decide when suspension is required. But is it any wonder that Abraham Lincoln thought civil war justified suspending the writ and ordering the trial of civilians by military commissions even in loyal states? He ignored a ruling that located the suspension power in Congress, not the Executive (ex parte Merryman, 1861). Five of the justices who decided ex parte Milligan five years later established a substantive rule: when civilian courts were open, rebellion did not justify suspension. The other four rebuffed presidential power by demanding (absent) congressional authorization. But by then Lincoln was dead, the war was over, and suspension was history.
When George W. Bush tried something similar in 2001, his frequent repetition of the phrase “We’re at war!” suggested a substitution of “invasion” for “rebellion. But he did not have to suspend the writ or get Congress to do so. Instead, he created a class of people – “enemy combatants” – to whom the privilege did not apply. The result was seven years of conflict with the Supreme Court repeatedly rebuffing the president and Congress. The most conservative Supreme Court in recent history thus significantly limited the government’s efforts to detain suspected terrorists without access to the judicial process. While these rulings affirmed judicial power, and individual rights, the first ruling, Hamdi v. Rumsfeld (2004) conceded that “the traditional notions of burden of proof could be shifted to the defendant to prove that he or she should not be classified as an enemy combatant and held indefinitely” (p.203).
The history of habeas corpus as a precondition of the exercise of procedural rights reflects an ongoing tension between two conflicting concepts of due process. The first is Justice Cardozo’s statement in Palko that some rights, “could be lost, and justice still be done” (at 325). What Cardozo appears to mean by “justice” is the right result: the innocent are cleared and the guilty punished. Henry Friendly’s “innocence” argument reflects similar concerns. But the second concept comes from Cardozo’s successor, Felix Frankfurter, that “the safeguards of liberty have frequently been forged in controversies involving not very nice people. “ (U.S. v. Rabinowitz, 1950, dissenting at 69). A jurisprudence that separates rights from the individuals who assert them preserves liberties for the nice people and frustrates government’s quest for power over its people.
Contrast Frankfurter’s approach with Rehnquist’s advice to his then boss, Robert Jackson: “HC, then and now, or, ‘If I Can Just Find the Right Judge, Over these Prison Walls I Shall Fly’” (p.147). Wert devotes considerable time to Friendly’s and Paul Bator’s discussion of death penalty cases, both consistently cited by Rehnquist, who apparently didn’t notice that Bator’s “finality” argument and Friendly’s argument are mutually contradictory. If we can’t know the relevant facts, we can’t determine or innocence. What we do know is that many people, whether or not they are “innocent” in the broad moral sense, have been sentenced to death for crimes they did not commit. This development was made possible in part by a Supreme Court increasingly reluctant to protect the rights of the accused. A show of indignation would have been a welcome conclusion to this remarkable book.
Baer, Judith A. 2005. “Compromising Rights: How Does a Constitution Mean?” Newsletter on Philosophy and Law (February).
Murphy, Walter F. 1986. “Who Shall Interpret? The Quest for the Ultimate Constitutional Interpreter.” The Review of Politics. 48(Summer): 401-423.CASES CITED
Hamdi v. Rumsfeld 542 U.S. 507 (2004).
Ex parte Merryman 17 F. Cas. 144 (C.C.D. Md.) (1861).
Ex parte Milligan 4 Wall. 2 (1866.).
Palko v. Connecticut 302 U.S. 319 (1937).
U.S. v. Rabinowitz 339 U.S. 56 (1950).
Copyright 2012 by the Author, Judith A. Baer.