- Hardcover: 434 pages
- Publisher: Cambridge University Press (April 15, 2013)
- Language: English
- ISBN-10: 1107036437
- ISBN-13: 978-1107036437
- Product Dimensions: 6 x 0.9 x 9 inches
- Shipping Weight: 1.5 pounds (View shipping rates and policies)
- Average Customer Review: 3 customer reviews
- Amazon Best Sellers Rank: #2,636,311 in Books (See Top 100 in Books)
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The Power of Habeas Corpus in America: From the King's Prerogative to the War on Terror
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From the Foreword:
"Ask any American what his most important right is, and he is apt to mention the freedom of speech, the freedom of the press, or the freedom of religion ... Very rare is the person who would respond by saying, 'The right not to be arrested and jailed arbitrarily', let alone mention the judicial writ that protects that right: the writ of habeas corpus. Lawyers know it as 'the Great Writ', and the myth holds that its availability from time immemorial is the chief reason that Anglophones have long been free. Anthony Gregory here does the estimable service of showing that the Great Writ was not always what we now understand it to be. He also lays out in excruciating, nay shocking, detail the 150-year trend, accelerating in our day, of reducing the Writ's importance."
Kevin R. C. Gutzman, Western Connecticut State University, and author of James Madison and the Making of America
"In his insightful and timely account of habeas corpus, Anthony Gregory illuminates not only the promise, but also the limitations of what for centuries has been known as the 'Great Writ'. His treatment of this important subject is both eloquent and persuasive, enhancing our understanding of the relationship between law, power, and human liberty."
Jonathan Hafetz, Seton Hall University School of Law, and author of Habeas Corpus After 9/11: Confronting America's New Global Detention System
"Habeas corpus is arguably the most important tool for peacefully repelling tyranny and effectively holding the government accountable for its interferences with personal freedom. It can reduce the government from a gang of armed thugs on its chosen turf to a gaggle of supplicant litigants in a neutral forum. In The Power of Habeas Corpus in America, Anthony Gregory reduces 400 years of Anglo-American legal and political history to a readable, thorough, compelling study of this natural and constitutional right. This book is so well researched and written, it will soon become the bible on all things habeas corpus for generations."
Hon. Andrew P. Napolitano, senior judicial analyst, and author of Theodore and Woodrow: How Two American Presidents Destroyed Constitutional Freedom
"Especially now, as individual rights are increasingly trampled with impunity by the state, Anthony Gregory's combination of engaging historical narrative with astute legal analysis and impassioned moral advocacy provides an overview of issues surrounding the Great Writ that is simply invaluable."
Gary Chartier, La Sierra University, and author of Anarchy and Legal Order: Law and Politics for a Stateless Society
"... a "must-have" for judicial and legal studies shelves, worthy of the highest recommendation especially for college and university libraries."
James A. Cox, Midwest Book Review
"Gregory emphasizes paradoxes: how a writ designed to serve liberty began as a governmental power; how a writ initially designed for individuals accused of crime is primarily sought by those who have been convicted; and how a mechanism originally used by states to question federal detentions is now almost exclusively a federal preserve ... Summing up: recommended. Upper-division undergraduate, graduate, research, and professional collections."
J. R. Vile, Choice
This book tells the story of habeas corpus from medieval England to modern America, crediting the rocky history to the writ's very nature as a government power. The book weighs in on habeas's historical controversies - addressing the writ's role in the power struggle between the federal government and the states, and the proper scope of federal habeas for state prisoners and for wartime detainees from the Civil War and World War II to the War on Terror.
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Habeas corpus is generally understood as the legal right not to be detained arbitrarily by the government. It is considered a foundational principle of Western legal systems, even of natural law itself. Still, habeas corpus is widely misunderstood, especially on a historical level. Anthony Gregory’s work on the history of habeas corpus and its application in America levels a damning charge against the American federal government and challenges the reader to reconsider the common assumption that the federal government protects liberty by showing how and why they abridge this fundamental right.
In the history section, Gregory explains that the origins of habeas corpus are not as simple as we are generally taught. Writs had traditionally been used by governments to command obedience. Contra the oft-assumed pure libertarian origins of the writ of habeas corpus, habeas was initially a privilege of the nobility in England. The Magna Carta itself was pushed upon King John by the Barons of Runnymede for their own personal protection. Expanding the writ to all citizenry took considerable time, and highlights the mixed and often paradoxical history of habeas in the West.
Habeas corpus emerged in America as a revolutionary rallying point. Gregory writes in Chapter 3:
Not only did habeas radicalize the colonists; the colonists soon radicalized habeas, extracted from it the purest pro-liberty element at the core of the judicial writ, and adopted through practice a libertarian version of the writ that prevailed in the late colonial era up until the adoption of the U.S. Constitution. First the colonists had to claim the writ as their own, which happened not so much through inheritance from Britain but with indifference or even hostility toward formal English institutions.
Compared to most other habeas corpus episodes, the initial expansion of habeas in America was a bottom-up affair. Nevertheless, over time the federal government acquired the means to do with habeas whatever they willed. Indeed, built into the Constitution itself is a mechanism to destroy habeas: “The Privilege of the Writ of Habeas corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” (Article I, Section 9) During the debates on adoption of the Constitution, anti-federalists decried this language as unduly granting power to the federal apparatus, since it alone would hold the power to determine when someone was acting in “rebellion” and that “public safety” required suspension of habeas. The clause also highlights that this power is a government privilege. In other words, you do not have a right not to be detained arbitrarily, but rather this is something you get from the government. What the government gives, of course, it can also take away. Thus we see that habeas corpus as a government power throws us into a paradox: Can the government be expected to wield such power justly when it alone has the power to rule when it is a party to the case?
Indeed, multiple incidents through America’s history shows that at no time has the federal government been incapable of justifying suspension of habeas when their plans require it. Whether the military commissions of Abraham Lincoln, the detention of Japanese-Americans in World War 2, or the indefinite detentions of the Bush-Obama era, where the feds have will they will make up a way.
Again, the American experience suggests that the history of habeas corpus is complicated and somewhat contradictory given its importance both in our shared cultural tradition and in concrete reality. Habeas corpus is both overvalued and undervalued, sometimes for right reasons and sometimes for wrong reasons. Fundamentally, the principle stands but this society must change if habeas abuses are to be righted. To Gregory, the end-game solution is simple: “A society needs more than the judicial order to secure its freedom. It needs to value that freedom in itself.” Understanding the history and application of habeas corpus is only part of the solution, the next is to change the culture from the inside.
Anthony Gregory’s excellent book pushes the truth about habeas corpus and the atrocities of governments forward. I am confident that any student of legal history and of freedom philosophy will find his work very beneficial. (I originally wrote this review for LibertarianChristians.com.)
Gregory's contemporary treatment of the Great Writ as it applies to the modern state of monopoly legal organization brings tears to your academic glasses. There are no magic writs, and his discussion of the explosion in imprisonment following the Civil War and the coming of progressivism unabated to this day recognizes limits in the writ that have no easy answers. The development of habeas corpus in the modern era seems unable to cope with the massive rate of incarceration, the proliferation of malum prohibitum legislation, and the ability of a legal system that rejects individual rights.