Professor Eric M. Freedman’s scholarly article — titled “Dimension I: Habeas Corpus as a Common Law Writ” — is forthcoming in summer 2011 edition of the Harvard Civil Rights–Civil Liberties Law Review.
This article is the first part of a projected three-part work based on the extensive exploration of archival sources in America and England that has been conducted in the past several years by myself and other researchers.
It advances two key claims: First, in researching the history of habeas corpus we need to get beyond the label “habeas corpus.” The constitutional importance of the writ is in its function not its name. Demands for release from unlawful imprisonment could be made in the seventeenth and eighteenth centuries by seeking a variety of writs or even by pleadings that asked for no particular writ at all. Hence for Suspension Clause purposes we should adopt a functional definition of “habeas corpus” to mean a demand, however denominated, challenging the legal basis of a detention and calling upon the custodian to justify it.
Second, the broader group of cases thus defined shares important features of judicial methodology. The judges worked vigorously (a) to resolve the case speedily on a fact-specific and pragmatic basis; and (b) with respect to those issues of law necessarily involved (I) to overcome any procedural barriers to a prompt merits ruling and (II) if a legal question seemed dis-positive, to frame it specifically and isolate it for adjudication.
I conclude by suggesting why historical research, legal scholarship, and judicial proceedings (including current ones involving Guantanamo) might benefit from applying these thoughts.
To download the article, visit ssrn.com.