HABEAS CORPUS IN AMERICA: THE POLITICS OF INDIVIDUAL RIGHTS. By Justin J. Wert. Lawrence, KS: University Press of Kansas 2011. 296 pages. Cloth $34.95 ISBN 9780700617630.

by Mark A. Graber, University of Maryland Francis King Carey Law School and Department of Government and Politics. mgraber[at] law.umaryland.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 introduction is drawn from remarks prepared for that panel.

The annual meeting of the Midwest Political Science Association was remarkable for having two panels on books devoted to constitutional civil procedure, a subject to which political scientists seem more allergic than the average first year law student. One panel was devoted to Justin Crowe’s Building the Judiciary: Law, Courts, and the Politics of Institutional Development. The other was devoted to the subject of this symposium, Justin Wert’s Habeas Corpus in America: The Politics of Individual Rights. Both works highlight the importance of seemingly technical procedural issues for constitutional development in the United States. Both deserve a wide audience. Both merit a discussion in an introduction to a symposium devoted to only one of the books because together they highlight the emergence of a new generation of scholars in American constitutional development who are challenging existing paradigms and making substantial contributions to the field.

One take-away point of Building the Judiciary is that we need to think as much about federal jurisdiction as we do about judicial review. In a series of virtually unknown cases, the Ellsworth and Marshall Courts declared that the Supreme Court could not exercise appellate jurisdiction unless Congress conferred appellate jurisdiction on the justices (Wiscart v Dauchy, 1796; Durousseau v. United States, 1810). Crowe provides an account of why Congress has done this. Sometimes, Congress has crass political motivations for building judicial capacity. Federal courts were restructured in 1837 to ensure a slaveholding majority on the federal courts. At other times, national legislators seemed motivated by good faith beliefs that courts needed to be reformed so that they might perform more efficiently. This seems to explain the Judges Bill of 1925. Whatever the legislative motivation, Building the Judiciary demonstrates that judicial power is politically constructed. Any theory of judicial power must consider why elected officials confer jurisdiction on federal courts, and not merely the reasons why judges ought to have the power to declare unconstitutional the laws elected officials make.

One take-away point of Habeas Corpus in America is that procedure matters as much as the substance of rights in constitutional criminal law. Undergraduates who take the relevant constitutional law course are well aware of the exclusionary rule and Miranda warnings. What few understand is that the vast majority of Fourth and Fifth Amendment violations are not remedied at trial because inexperienced trial counsel did not know the relevant law or because overworked trial counsel did not have time the find the relevant facts. [*238] These violations are remedied, if remedied at all, in a civil procedure called habeas corpus, which technically concerns jurisdiction. The most important constitutional criminal procedure case the Warren Court decided was Fay v. Noia (1963), which enabled thousands of prisoners to litigate constitutional claims that for one reason or another were not raised at trial. Wainwright v. Sykes (1977), which adopted a presumption that counsel had strategic reasons for not objecting to unconstitutionally obtained evidence or improper Miranda warnings, did more to limit the vindication of constitutional rights than the more famous recent cases that have narrowed the scope of Mapp v. Ohio (1961) and Miranda v. Arizona (1966) (remarkably, counsel for affluent criminal defendants rarely if ever find tactical reasons for failure to raise or investigation possible Mapp or Miranda violations). Wert demonstrates that when thinking about the rights of persons suspected of crime, we must think as much about the right to assert those rights as the actual substance of these rights.

Both books demonstrate a mastery of political science and law. Crowe and Wert understand both the basics of constitutional civil procedure and the politics that determine the path of that law. Unlike too many law professors, they also place this law in an engaging narrative. As this symposium suggests, the Wert volume offers much grist for thinking about the function of courts and law in American history and at present. Together, Habeas Corpus in America, Building the Judiciary, and other forthcoming first books (e.g., Ziesburg; Zachlin) highlight a diverse public law field being reinvigorated by a new generation of scholars.


Crowe, Justin 2012. Building the Judiciary: Law Courts, and the Politics of Institutional Development. Princeton, NJ: Princeton University Press.

Zachin, Emily. (forthcoming). Positively Constitutional: States and the Political Development of the American Rights Tradition. Princeton, NJ: Princeton University Press.

Ziesburg, Mariah. (forthcoming).War Authority: A Political Theory of Constitutional Judgment. Princeton, NJ: Princeton University Press.


Durousseau v. United States, 10 U.S. 307 (1810).

Fay v. Noia 372 U.S. 391 (1963).

Mapp v. Ohio 367 U.S. 643 (1961).

Miranda v. Arizona 384 U.S. 436 (1966).

Wainwright v. Sykes 433 U.S. 72 (1977).

Wiscart v Dauchy 3 U.S. 321 (1796).

Copyright 2012 by the Author, Mark A. Graber.