The article “Dimension II: Habeas Corpus as a Legal Remedy” by Eric M. Freedman, the Siggi B. Wilzig Distinguished Professor of Constitutional Rights, was published in 8 Northeastern University Law Journal 1 (2016).
The article is the second in Professor Freedman’s three-part work “Habeas Corpus in Three Dimensions,” which is based on the extensive exploration of archival sources in America and England that has been conducted by him and other researchers.
The first article, “Dimension I: Habeas Corpus as a Common Law Writ,” was published in 46 Harvard Civil Rights-Civil Liberties Law Review 591 (2011).
From the Abstract:
This part of the project argues that understanding habeas corpus during the colonial and early national periods — and ultimately reclaiming its power today — requires understanding that it was just one strand in a web of public and private legal remedies restraining abuses of government power. This article documents, with heavy reliance on previously-unpublished sources, the extent to which in the colonial and early national periods habeas existed within an elaborate structure of public and private mechanisms for constraining government actors.
Among the implications of the piece is that the view of the current Supreme Court that protecting public officials from unwarranted damages liability is a judicial role is thoroughly ahistorical. Only during the first half of the 19th century did the system for controlling governmental abuses of power evolve into the patterns that now seem natural and pre-ordained.