Eric M. Freedman’s article, “Habeas Corpus Past and Present” was published on pp. 40-43 of the May 2012 edition of The Federal Lawyer (vol. 59, no. 4). The article may be viewed on the magazine’s website (subscription required).
Habeas corpus is first and foremost a symbol of this political creed. Only secondarily is it a legal procedure. It signifies that all persons are entitled to be at liberty unless and until the government can demonstrate by a fair process to a neutral decision-maker the factual and legal right to imprison them. More generally, the “Great Writ of Liberty” betokens that no government action is legitimate unless consistent with the requirements of law.
In the mundane world of public affairs, mortals acting under the influence of the perceived exigencies of the moment sometimes abandon these ideals and act in heat, damaging important public values. Habeas corpus proceedings are a tool for reconsidering those actions coolly and making needed repairs. But the tool does not do the work; the worker does—or does not.