Could I have a show of hands of everyone who considers themselves to be pro-habius corpus?
Most of you?
But not all of you, certainly.
That's good.
You know.
Yeah, well, that's good.
How many of you would you say if you had to decide one way or the other that you lean
toward political decentralism rather than centralism?
Hate criminals.
Oh.
Well, what's interesting is as I was, I'm doing a book on this topic which should be out by next year and what was very interesting to me as a decentralized and market anarchist and civil libertarian and you know all the rest of this stuff is I noticed that well, you know, habeas corpus is a government program, I mean, habeas corpus is judicial activism, it's a judge ordering something and right away there's a tension
here because you know as Rothbard said there's no real there's no substantive
rights there are only natural rights there's or there's no sorry there's no
procedural rights there's only substantive rights though I would figure
he would he would be pro habeas corpus so long as there's a state because
sometimes procedural rights do help protect natural rights what's
interesting to me though is that although most of us are for habeas
and so forth, I wasn't able to find that much deep discussion of it, so I had to go read what all of the non-good guys said, to figure things out, and one thing that kind of startled me is that it didn't really start out as a good thing, at least not as good a thing as we might have thought it would be, but it didn't really start out as a good thing,
Most people like to talk about habeas corpus as going back to the Magna Carta.
Now, the Magna Carta doesn't mention it at all.
It mentions that you have a right not to be detained unjustly,
whatever that was thought to mean at the time.
But it wasn't until a hundred years, two hundred years later
that we started seeing habeas corpus writs.
And because the words habeas corpus in Latin mean have the body, basically bring forth the body,
the body, a lot of the times it would be used not to free people or make sure they weren't
being detained, but to bring them forward to process them, or to bring them forward
to force them to testify, and so forth. There's a scholar, Badshah Mayan, whose thesis, one
of his theses is, this is kind of a distraction because the words habeas corpus, yes, judges
use them because they use Latin, they like to use Latin, but the habeas corpus we've
We've grown to love, Havies Corpus ad subgesiendum, did not originate purely linguistically.
There was a function.
They did want to check detentions.
And so what happened was they had another writ at the time, and writs used to be used
all the time, and writs were used to command obedience by popes and kings and the like.
And they were kind of an authoritarian mechanism of law.
We don't really see that many writs anymore, but writs were very much used up until the
of the 19th Century, and now we only have a few RITs, and the habeas corpus RIT is one
of our favorites. But at the time, it kind of evolved as there was this other RIT, CAPIUS,
and then they started using habeas corpus, cum causa, which they would connect to one
of two other RITs, most commonly. One RIT was the RIT of privilege, and the other was
Satori Ari. Satori Ari basically says, I'm a higher court, I get to check you out to make sure you're doing things right, which is inherently a centralizing mechanism of law. Privilege was also kind of not, not a purely admirable legal mechanism, because the idea was, well, I'm on my way to official business, I'm a more important noble than you, you can't arrest me. And that was how habeas corpus really
and became more and more popular. In fact, skip ahead skip ahead to the 17th
century, when the habeas corpus act, the famous act of 1679 passed Parliament, one
of the main reasons that finally happened after all this agitation was
because the the House of Commons was arresting people in the House of Lords
and they can't have that, so we finally they were finally convinced we need to
have some way to protect them and the king was distracted and said okay it
It doesn't matter, I'll assent to this. But there was a moral principle involved, that people shouldn't be detained just for the hell of it.
There was this desire to abolish the Star Chambers. In 1628, Parliament had passed the Petition of Right, which said you can't be detained.
It was basic Magna Carta kind of stuff, but it wasn't really enforceable until the 1679 Act, which was not very complete.
and then just to show how much we can trust centralizing authorities with our
liberty, Parliament suspended it 10 years later in cases with the King,
anyone conspiring with the King during the Glorious Revolution didn't get
habeas corpus. And we see this over and over in history. Everyone says, I love
habeas corpus, oh it's inconvenient now so we don't believe it. Now how it came to
America though, it's a little different. See in England there were some courts
that developed it just through what we call the common law, they just started
exercising it but eventually it was by statute because parliament existed and
then they'd have to give the power to certain courts so the older courts like
the Court of the King's Bench they asserted the right of themselves but
other courts and they have like 7,000 courts in England not really not that
many but exchequer and blah blah blah blah then the Court of Request and some
of them got them through a statute but in America it was it was the common law
Contradition. And there's a big, you know, a lot of people say Queen Anne gave us habeas,
specifically to Virginia through Governor Sportswood's declaration. But Virginia was
already practicing it. And this was as much to secure American loyalty to English legal
customs as it was to actually give us anything good. In fact, when Pennsylvania, South Carolina,
and Massachusetts all tried to adopt habeas corpus and say, we've got it too, Britain
There's an admirable bottom-up tradition in the American colonies where people just started grabbing it.
In fact, while a lot of people say habeas corpus came to us through the common law,
a lot of American colonists didn't really like the common law because it was English.
They liked other legal systems, whatever they used.
Much of the time, those legal systems I don't agree with either.
but it wasn't it probably wasn't through the common law rather Americans started
saying we like what Britain does I wish they weren't hypocritical about it but we
like that they have habeas corpus and it might have been through that that
Americans started appreciating common law at all so the typical story might be
backwards by the time the American Revolution all the colonies had it but
here's what's interesting a lot of people like to say and I'll say that
once a while a lot of people like to say and then say they're wrong the
The Constitution, you know, before the Bill of Rights, right there, the suspension calls, you know.
Habeas Corpus, the privilege of the writ of Habeas Corpus shall not be suspended unless in times of invasion or insurrection or rebellion, the public safety shall require it.
And a lot of Americans pride themselves. Well, even before the Bill of Rights, we had Habeas Corpus in the Constitution.
But as with many other things, I think this was a step backwards, because the colonies were already practicing it.
The states that more arguably created the Federal Government were already practicing it and now all of a sudden the Constitution gave this new Federal Government the power to suspend it.
They hadn't had the power before. And what this speaks to is who was it that issued habeas writs in antebellum America and the whole period up until the Civil War.
Well most typically though the Supreme Court and the Federal Courts created by Congress began issuing these writs themselves,
It wasn't the federal courts in which people saw most of their protection. It was the state courts.
State courts had the power to issue writs of habeas corpus to check federal detentions.
And this is one of the most forgotten legacies in the history of federalism.
I mean, everyone talks about federalism, the right to secede, the right to nullify, the right to stick your middle finger up at the federal government.
and that's all great, but think about the power of a state court to say to, you know, to say to the Defense Department bring forth those Guantanamo detainees, you've got military bases in our state, we want to make sure that you're treating detainees, you know, claim personal jurisdiction, this was a very powerful tool, or it was. Now, once the federal government began using habeas corpus to protect people from federal depredations, the federal government originally had no
Power Over State Detentions. We saw just how much they could be trusted. In 1807, Thomas
Jefferson, who had said, we don't need a suspension clause because we should never suspend habeas
corpus. Why should we ever suspend it? Well, in 1807, he tried to get Congress to suspend
it to deal with the Ehrenberg conspirators. And then we see martial law in the War of
1812. People who opposed martial law, just for saying it, Andrew Jackson would jail them
without habeas corpus, when a judge tried to free one of these journalists, Judge Hall.
Jackson jailed him. So these federal officials weren't that great at it, at being the libertarian
consistent understanding of habeas. What's really fascinating in the Annabellum area
is habeas corpus in relation to slavery, because in both the north and south it was being used
in both good and bad ways. In the north, they would use habeas, you know, I'm generalizing here, but in the north, you know, habeas would be used to make sure someone was a slave rather than a free person. And the south, it was used that way a little bit, but it wasn't very consistent. More common was habeas was used by slaveholders to have their property returned to them. Show me the body, that's mine. So this was really a very problematic tradition.
But it was more or less decentralized.
Now, eventually the northern states began passing these personal liberty laws to protect slaves
and say, well, they're there on our turf, you can't bring them back to combat the fugitive
slave provisions of the Constitution.
In 1842, the Supreme Court ruled in Prigg versus Pennsylvania, you can't do that.
The fugitive slave law overrides state habeas corpus.
And this was a major watershed. But what's interesting is in this period you have some
people saying habeas should be trusted with the feds, habeas should be trusted with the
states. But it tended to not rely on any consistent view of national supremacy versus federalism.
It tended to depend on the circumstances. So people would say, well, I think state slavery
would be better protected by the states or better protected by the feds or vice versa.
Now, in 1833, this is when the federal government really started asserting habeas corpus powers
over the states, and it was to protect tax collectors during the Tariff of Abominations
in 1833 in the Nullification Crisis, they passed the FORCE Act to say, well, you can't
jail our federal officials trying to enforce federal law.
So this was kind of the origin of federal habeas corpus.
And interestingly, 1836, we see just how radical state habeas corpus against the feds
could be. The Supreme Court of Massachusetts successfully forced the U.S. Navy to discharge
a minor that had enlisted. So just think about that, the state courts having power over the
military. Now, again, I talked about the Force Act 1833. In the 1850s, the federal judiciary
So he started saying, you know, this FORCE Act doesn't just apply to taxes, but it implies
to enforcing the Fugitive Slave Act.
It was really that, you know, before the Civil War, the federal government was kind of on
the side of the slaveocracy.
And a lot of, of course, we know that a lot of some abolitionists said we should secede.
And it was in the name of the Fugitive Slave Act first that the state courts started losing
their powers.
And what's interesting is, one of the first, the big villain was Roger Taney, the guy who
said blacks have no rights, the white man has to respect in a Dred Scott, and who we
think of as the guy who stood up to Lincoln.
Well he did regarding federal court powers versus the president, which is good, but in
the 1850s, in 1859, he said, no, states don't have a habeas corpus power over the fugitive
of Slave Law, because that would interfere with federal law.
And he's the one who started to undo this, this decentralized legacy that we used to
have in this country.
That was Abelman versus Booth, by the way, 1859.
Now, of course, the Civil War, we all know Lincoln suspended Habeus Corpus.
He did so multiple times.
He didn't just suspend it.
He said other people had the power to suspend it.
And it was this that in Merriman, the federal case, where Tawny, not acting as the Supreme
Court Justice, but acting as a Federal Circuit Court Justice said, you can't do that. These
people have habeas corpus rights. Lincoln just kept expanding the suspensions of habeas
corpus. But then when Congress eventually talked about this in 1863, they said everything
he did was legal. Lincoln's good. But they didn't say Lincoln can suspend habeas corpus
until, oh no, I'm sorry, it was 1861 that Congress started kissing up to him. But in
In 1863, they said Lincoln can suspend habeas corpus. He's authorized to do it even more
broadly than he had ever requested the power to do. And Lincoln jumped on that. In 1863,
in September, Lincoln essentially suspended it for the whole country. So we see how habeas
is protected by the federal government, not very well.
Now after the Civil War, we again had a very interesting dynamic because of Reconstruction.
On the one hand, the Reconstructionists wanted some ability to protect the freed slaves,
the former slaves, and their civil liberties and the right to bear arms, and to give teeth
to things like the 14th Amendment.
So they eventually passed the 1867 Habeas Corpus Act.
But then the next year, it ended up being used to protect this guy, McCardle, who was
was a critic of Reconstruction, which was illegal in some cases, criticizing Reconstruction
was a violation of the Reconstruction Act. And so the Federal Court said, well, he has
habeas corpus, and you know, the Reconstructionist said, oh no, we didn't want habeas corpus
to protect people that disagreed with us. We wanted it to protect freed slaves and actually
protect the military, the federal military dictators in the South and protect them from
from State Prosecution. So they amended it and then the real nail in the coffin of the
old order of Hades Corpus was in 1871 in Tarble's case. There was a kid named Edward Tarble.
He was a miner from Wisconsin and he had enlisted in the military but his father said, you know,
he can't enlist because he wasn't old enough and as I said with the Navy back in the 30s this 1830s this might have worked but then Justice Field said no states don't have habeas corpus power over the fed so what we had now was the complete suspension and reconstruction of habeas corpus before it was a state check on state power and federal power now it was a federal check on state power and federal power and the states only had could check themselves
In the last century or so, most of the debates about habeas have been over federal habeas and the conservatives always say, well, you know, we don't want to extend it too liberally, if the state court says the guy's guilty, he's probably guilty, and they've erred on that side.
But it's very unfortunate that this is the debate, that it's now over how powerful the federal courts should be over the state judiciary and the state legal systems.
And although on a case-by-case basis, I'll invoke Roderick Long's insight that he was writing about the Kelo decision, or Kelo? Kelo? Kelo, yeah, word sounds kind of provocative, but he was writing the Kelo decision and he said there's the question of do we want the federal government to be powerful enough to check the states and there's the question of now that they are, in this individual case, is it a good or bad thing
And it's kind of like I don't think there should be cops, but one out of a million times
the cops do something right and in that one time I won't really oppose it that much.
So I would say that I lean toward a broad, liberal, federal habeas corpus now, but what's
really unfortunate is we've really moved away from the original design completely.
And again, a totally, as far as I know, neglected part of our history, because everyone talks
about Habeas Corpus, especially because of the Bush cases, but under the original law,
Bush would have potentially 50 state courts to deal with, and that would be beautiful.
Or Obama, of course, or any federal official.
So another thing also that I've been reflecting on is, again, the federal government isn't,
The state governments are all terrible, without exception, because they're the embodiment
of evil insofar as they are state governments, right? But the federal government has not
really been a very good protector of habeas corpus and the effective meaning of habeas
corpus either. I mean, they, you know, they gave us a Japanese internment by an Earl Warren.
Again, he was terrible on that, but then he's become one of the more expansionist thinkers
and Federal Habeas Corpus in the 20th century.
And another really fascinating thing to me is we have far more prisoners on the federal
and state level now, and we have Federal Habeas Corpus that's broader than before.
They can question your detention after you're convicted now.
In fact, that's what most people mean when they say Habeas Corpus.
They mean Federal Habeas Corpus to check state detentions of convicts, which, again, I'm
I'm not really opposed to it, because I don't think I tend to be anti-prison actually, but
we have so many people in prison and it doesn't work and I think a lot of the reason we have
a lot of people in prison are the same reasons that habeas corpus came to be nationalized.
There was this movement toward nationalism and the central state as well as statism in
general and of course the federal government now that there's no one to check them except
for Federal Marijuana Law? Well, federal marijuana law is unconstitutional, and that would be
a habeas corpus claim, but we've lost that, and you can't really have those kinds of interesting
claims when you have so many damn people being arrested. They have to limit it, because they
don't want to, and that's usually the conservative argument. If you look at the conservative
argument for limiting federal habeas corpus, it's usually, well, we don't want to clog
the system up, we don't want to spend too much money on this, because as we know, conservatives,
If the money is going to feed prisoners or to build museums, they're totally against it.
If it's a trillion dollars to bail out Wall Street or kill a million people, they're for it.
So we've got a pretty sad situation overall because America prides itself, as it should, for having a robust habeas corpus tradition.
And I'd say we have the best if you go back far enough, and in some ways even in modern times we have a lot of admirable qualities in the way people think about it.
about it, but we have the most prisoners too. We have the most people in prison who shouldn't
be there on moral grounds or on constitutional grounds. So what's that mean? It means that
some state that doesn't have habeas corpus at all might be freer on average if your fear
is being locked up without a cause than our country that has the best habeas corpus tradition
of the Mall. So, for those of you who are pro-habius corpus, I think you should still
be pro-habius corpus. You should really think more about the way that first Judge Taney,
the pro-slavery, horrible Supreme Court Justice, who was good on some, everyone's good, and
Hitler was against Stalin, and Stalin was against Hitler. But Taney, he was terrible
on this where it really counted and then Lincoln and and the reconstructionists were overall very
terrible and they'll be good half the time and bad half the time as we're so used to but I think we
should reflect on what we've on that legacy we've lost of decentralized habeas corpus we should think
about it in terms of the individual liberty now and maybe try to restore decentralized habeas corpus
I don't think we're going to have any good luck in the short term this sounds pretty crankish probably
in the mainstream, but I also think this is an important issue to really reflect on what
it is that it's about.
We don't care so much about the judge's power to say, bring this prisoner forth because
I want the money, which is how this thing came about.
We care about the end result of individuals who shouldn't be in cages being released
from cages, and to that end, I think we should make any argument that's not totally absurd
and not totally self-refuting that we can, and I'm sorry for those of you who might have
thought the history of habeca corpus was purer or less muddled than that, but like everything
else that we idolize in history, it's a mixed bag. Thanks.