WEBVTT NOTE Habeas Corpus, Centralism and Decentralism: The Great Writ as a States' Right and Individual Liberty 1 00:00:00.000 --> 00:00:09.320 Could I have a show of hands of everyone who considers themselves to be pro-habius corpus? 2 00:00:09.320 --> 00:00:10.320 Most of you? 3 00:00:10.320 --> 00:00:12.860 But not all of you, certainly. 4 00:00:12.860 --> 00:00:13.860 That's good. 5 00:00:13.860 --> 00:00:14.860 You know. 6 00:00:14.860 --> 00:00:16.280 Yeah, well, that's good. 7 00:00:16.280 --> 00:00:21.040 How many of you would you say if you had to decide one way or the other that you lean 8 00:00:21.040 --> 00:00:27.440 toward political decentralism rather than centralism? 9 00:00:27.440 --> 00:00:28.440 Hate criminals. 10 00:00:28.440 --> 00:00:29.440 Oh. 11 00:00:29.440 --> 00:00:59.440 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 12 00:00:59.440 --> 00:01:04.100 here because you know as Rothbard said there's no real there's no substantive 13 00:01:04.100 --> 00:01:08.200 rights there are only natural rights there's or there's no sorry there's no 14 00:01:08.200 --> 00:01:11.500 procedural rights there's only substantive rights though I would figure 15 00:01:11.500 --> 00:01:15.960 he would he would be pro habeas corpus so long as there's a state because 16 00:01:15.960 --> 00:01:21.960 sometimes procedural rights do help protect natural rights what's 17 00:01:21.960 --> 00:01:25.560 interesting to me though is that although most of us are for habeas 18 00:01:25.560 --> 00:01:55.560 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, 19 00:01:55.560 --> 00:02:01.560 Most people like to talk about habeas corpus as going back to the Magna Carta. 20 00:02:01.560 --> 00:02:04.560 Now, the Magna Carta doesn't mention it at all. 21 00:02:04.560 --> 00:02:07.560 It mentions that you have a right not to be detained unjustly, 22 00:02:07.560 --> 00:02:10.560 whatever that was thought to mean at the time. 23 00:02:10.560 --> 00:02:15.560 But it wasn't until a hundred years, two hundred years later 24 00:02:15.560 --> 00:02:18.560 that we started seeing habeas corpus writs. 25 00:02:18.560 --> 00:02:24.560 And because the words habeas corpus in Latin mean have the body, basically bring forth the body, 26 00:02:24.560 --> 00:02:29.720 the body, a lot of the times it would be used not to free people or make sure they weren't 27 00:02:29.720 --> 00:02:34.920 being detained, but to bring them forward to process them, or to bring them forward 28 00:02:34.920 --> 00:02:42.240 to force them to testify, and so forth. There's a scholar, Badshah Mayan, whose thesis, one 29 00:02:42.240 --> 00:02:48.200 of his theses is, this is kind of a distraction because the words habeas corpus, yes, judges 30 00:02:48.200 --> 00:02:54.020 use them because they use Latin, they like to use Latin, but the habeas corpus we've 31 00:02:54.020 --> 00:02:59.820 We've grown to love, Havies Corpus ad subgesiendum, did not originate purely linguistically. 32 00:02:59.820 --> 00:03:00.820 There was a function. 33 00:03:00.820 --> 00:03:03.140 They did want to check detentions. 34 00:03:03.140 --> 00:03:07.880 And so what happened was they had another writ at the time, and writs used to be used 35 00:03:07.880 --> 00:03:12.420 all the time, and writs were used to command obedience by popes and kings and the like. 36 00:03:12.420 --> 00:03:16.140 And they were kind of an authoritarian mechanism of law. 37 00:03:16.140 --> 00:03:21.380 We don't really see that many writs anymore, but writs were very much used up until the 38 00:03:21.380 --> 00:03:25.660 of the 19th Century, and now we only have a few RITs, and the habeas corpus RIT is one 39 00:03:25.660 --> 00:03:35.060 of our favorites. But at the time, it kind of evolved as there was this other RIT, CAPIUS, 40 00:03:35.060 --> 00:03:41.180 and then they started using habeas corpus, cum causa, which they would connect to one 41 00:03:41.180 --> 00:03:46.020 of two other RITs, most commonly. One RIT was the RIT of privilege, and the other was 42 00:03:46.020 --> 00:04:16.020 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 43 00:04:16.020 --> 00:04:21.900 and became more and more popular. In fact, skip ahead skip ahead to the 17th 44 00:04:21.900 --> 00:04:28.500 century, when the habeas corpus act, the famous act of 1679 passed Parliament, one 45 00:04:28.500 --> 00:04:31.420 of the main reasons that finally happened after all this agitation was 46 00:04:31.420 --> 00:04:36.220 because the the House of Commons was arresting people in the House of Lords 47 00:04:36.220 --> 00:04:40.900 and they can't have that, so we finally they were finally convinced we need to 48 00:04:40.900 --> 00:04:44.460 have some way to protect them and the king was distracted and said okay it 49 00:04:44.460 --> 00:04:51.460 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. 50 00:04:51.460 --> 00:05:01.460 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. 51 00:05:01.460 --> 00:05:08.460 It was basic Magna Carta kind of stuff, but it wasn't really enforceable until the 1679 Act, which was not very complete. 52 00:05:08.460 --> 00:05:12.960 and then just to show how much we can trust centralizing authorities with our 53 00:05:12.960 --> 00:05:17.820 liberty, Parliament suspended it 10 years later in cases with the King, 54 00:05:17.820 --> 00:05:20.760 anyone conspiring with the King during the Glorious Revolution didn't get 55 00:05:20.760 --> 00:05:24.420 habeas corpus. And we see this over and over in history. Everyone says, I love 56 00:05:24.420 --> 00:05:29.660 habeas corpus, oh it's inconvenient now so we don't believe it. Now how it came to 57 00:05:29.660 --> 00:05:33.100 America though, it's a little different. See in England there were some courts 58 00:05:33.100 --> 00:05:36.580 that developed it just through what we call the common law, they just started 59 00:05:36.580 --> 00:05:41.140 exercising it but eventually it was by statute because parliament existed and 60 00:05:41.140 --> 00:05:46.240 then they'd have to give the power to certain courts so the older courts like 61 00:05:46.240 --> 00:05:50.220 the Court of the King's Bench they asserted the right of themselves but 62 00:05:50.220 --> 00:05:53.940 other courts and they have like 7,000 courts in England not really not that 63 00:05:53.940 --> 00:05:57.860 many but exchequer and blah blah blah blah then the Court of Request and some 64 00:05:57.860 --> 00:06:03.720 of them got them through a statute but in America it was it was the common law 65 00:06:03.720 --> 00:06:08.800 Contradition. And there's a big, you know, a lot of people say Queen Anne gave us habeas, 66 00:06:08.800 --> 00:06:15.000 specifically to Virginia through Governor Sportswood's declaration. But Virginia was 67 00:06:15.000 --> 00:06:20.880 already practicing it. And this was as much to secure American loyalty to English legal 68 00:06:20.880 --> 00:06:26.360 customs as it was to actually give us anything good. In fact, when Pennsylvania, South Carolina, 69 00:06:26.360 --> 00:06:30.000 and Massachusetts all tried to adopt habeas corpus and say, we've got it too, Britain 70 00:06:30.000 --> 00:06:41.000 There's an admirable bottom-up tradition in the American colonies where people just started grabbing it. 71 00:06:41.000 --> 00:06:46.000 In fact, while a lot of people say habeas corpus came to us through the common law, 72 00:06:46.000 --> 00:06:50.000 a lot of American colonists didn't really like the common law because it was English. 73 00:06:50.000 --> 00:06:53.000 They liked other legal systems, whatever they used. 74 00:06:53.000 --> 00:06:57.000 Much of the time, those legal systems I don't agree with either. 75 00:06:57.000 --> 00:07:02.240 but it wasn't it probably wasn't through the common law rather Americans started 76 00:07:02.240 --> 00:07:05.560 saying we like what Britain does I wish they weren't hypocritical about it but we 77 00:07:05.560 --> 00:07:09.520 like that they have habeas corpus and it might have been through that that 78 00:07:09.520 --> 00:07:14.400 Americans started appreciating common law at all so the typical story might be 79 00:07:14.400 --> 00:07:17.880 backwards by the time the American Revolution all the colonies had it but 80 00:07:17.880 --> 00:07:22.440 here's what's interesting a lot of people like to say and I'll say that 81 00:07:22.440 --> 00:07:25.520 once a while a lot of people like to say and then say they're wrong the 82 00:07:25.520 --> 00:07:31.520 The Constitution, you know, before the Bill of Rights, right there, the suspension calls, you know. 83 00:07:31.520 --> 00:07:41.520 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. 84 00:07:41.520 --> 00:07:47.520 And a lot of Americans pride themselves. Well, even before the Bill of Rights, we had Habeas Corpus in the Constitution. 85 00:07:47.520 --> 00:07:53.520 But as with many other things, I think this was a step backwards, because the colonies were already practicing it. 86 00:07:53.520 --> 00:08:03.520 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. 87 00:08:03.520 --> 00:08:13.520 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. 88 00:08:13.520 --> 00:08:19.520 Well most typically though the Supreme Court and the Federal Courts created by Congress began issuing these writs themselves, 89 00:08:19.520 --> 00:08:25.520 It wasn't the federal courts in which people saw most of their protection. It was the state courts. 90 00:08:25.520 --> 00:08:32.520 State courts had the power to issue writs of habeas corpus to check federal detentions. 91 00:08:32.520 --> 00:08:37.520 And this is one of the most forgotten legacies in the history of federalism. 92 00:08:37.520 --> 00:08:43.520 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. 93 00:08:43.520 --> 00:09:13.520 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 94 00:09:13.520 --> 00:09:22.120 Power Over State Detentions. We saw just how much they could be trusted. In 1807, Thomas 95 00:09:22.120 --> 00:09:26.720 Jefferson, who had said, we don't need a suspension clause because we should never suspend habeas 96 00:09:26.720 --> 00:09:30.840 corpus. Why should we ever suspend it? Well, in 1807, he tried to get Congress to suspend 97 00:09:30.840 --> 00:09:36.380 it to deal with the Ehrenberg conspirators. And then we see martial law in the War of 98 00:09:36.380 --> 00:09:43.300 1812. People who opposed martial law, just for saying it, Andrew Jackson would jail them 99 00:09:43.300 --> 00:09:49.700 without habeas corpus, when a judge tried to free one of these journalists, Judge Hall. 100 00:09:49.700 --> 00:09:58.780 Jackson jailed him. So these federal officials weren't that great at it, at being the libertarian 101 00:09:58.780 --> 00:10:02.980 consistent understanding of habeas. What's really fascinating in the Annabellum area 102 00:10:02.980 --> 00:10:09.380 is habeas corpus in relation to slavery, because in both the north and south it was being used 103 00:10:09.380 --> 00:10:39.380 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. 104 00:10:39.380 --> 00:10:41.380 But it was more or less decentralized. 105 00:10:41.380 --> 00:10:50.420 Now, eventually the northern states began passing these personal liberty laws to protect slaves 106 00:10:50.420 --> 00:10:55.460 and say, well, they're there on our turf, you can't bring them back to combat the fugitive 107 00:10:55.460 --> 00:10:59.080 slave provisions of the Constitution. 108 00:10:59.080 --> 00:11:05.180 In 1842, the Supreme Court ruled in Prigg versus Pennsylvania, you can't do that. 109 00:11:05.180 --> 00:11:09.180 The fugitive slave law overrides state habeas corpus. 110 00:11:09.180 --> 00:11:15.380 And this was a major watershed. But what's interesting is in this period you have some 111 00:11:15.380 --> 00:11:18.940 people saying habeas should be trusted with the feds, habeas should be trusted with the 112 00:11:18.940 --> 00:11:24.600 states. But it tended to not rely on any consistent view of national supremacy versus federalism. 113 00:11:24.600 --> 00:11:28.940 It tended to depend on the circumstances. So people would say, well, I think state slavery 114 00:11:28.940 --> 00:11:36.300 would be better protected by the states or better protected by the feds or vice versa. 115 00:11:36.300 --> 00:11:44.180 Now, in 1833, this is when the federal government really started asserting habeas corpus powers 116 00:11:44.180 --> 00:11:50.760 over the states, and it was to protect tax collectors during the Tariff of Abominations 117 00:11:50.760 --> 00:11:57.740 in 1833 in the Nullification Crisis, they passed the FORCE Act to say, well, you can't 118 00:11:57.740 --> 00:12:01.160 jail our federal officials trying to enforce federal law. 119 00:12:01.160 --> 00:12:04.800 So this was kind of the origin of federal habeas corpus. 120 00:12:04.800 --> 00:12:11.200 And interestingly, 1836, we see just how radical state habeas corpus against the feds 121 00:12:11.200 --> 00:12:18.160 could be. The Supreme Court of Massachusetts successfully forced the U.S. Navy to discharge 122 00:12:18.160 --> 00:12:23.180 a minor that had enlisted. So just think about that, the state courts having power over the 123 00:12:23.180 --> 00:12:33.340 military. Now, again, I talked about the Force Act 1833. In the 1850s, the federal judiciary 124 00:12:33.340 --> 00:12:37.300 So he started saying, you know, this FORCE Act doesn't just apply to taxes, but it implies 125 00:12:37.300 --> 00:12:39.660 to enforcing the Fugitive Slave Act. 126 00:12:39.660 --> 00:12:46.020 It was really that, you know, before the Civil War, the federal government was kind of on 127 00:12:46.020 --> 00:12:48.660 the side of the slaveocracy. 128 00:12:48.660 --> 00:12:52.780 And a lot of, of course, we know that a lot of some abolitionists said we should secede. 129 00:12:52.780 --> 00:12:58.120 And it was in the name of the Fugitive Slave Act first that the state courts started losing 130 00:12:58.120 --> 00:12:59.120 their powers. 131 00:12:59.120 --> 00:13:04.920 And what's interesting is, one of the first, the big villain was Roger Taney, the guy who 132 00:13:04.920 --> 00:13:11.600 said blacks have no rights, the white man has to respect in a Dred Scott, and who we 133 00:13:11.600 --> 00:13:13.680 think of as the guy who stood up to Lincoln. 134 00:13:13.680 --> 00:13:18.760 Well he did regarding federal court powers versus the president, which is good, but in 135 00:13:18.760 --> 00:13:26.120 the 1850s, in 1859, he said, no, states don't have a habeas corpus power over the fugitive 136 00:13:26.120 --> 00:13:29.540 of Slave Law, because that would interfere with federal law. 137 00:13:29.540 --> 00:13:34.840 And he's the one who started to undo this, this decentralized legacy that we used to 138 00:13:34.840 --> 00:13:36.480 have in this country. 139 00:13:36.480 --> 00:13:40.040 That was Abelman versus Booth, by the way, 1859. 140 00:13:40.040 --> 00:13:44.360 Now, of course, the Civil War, we all know Lincoln suspended Habeus Corpus. 141 00:13:44.360 --> 00:13:45.560 He did so multiple times. 142 00:13:45.560 --> 00:13:46.560 He didn't just suspend it. 143 00:13:46.560 --> 00:13:49.080 He said other people had the power to suspend it. 144 00:13:49.080 --> 00:13:53.840 And it was this that in Merriman, the federal case, where Tawny, not acting as the Supreme 145 00:13:53.840 --> 00:13:58.160 Court Justice, but acting as a Federal Circuit Court Justice said, you can't do that. These 146 00:13:58.160 --> 00:14:03.800 people have habeas corpus rights. Lincoln just kept expanding the suspensions of habeas 147 00:14:03.800 --> 00:14:09.440 corpus. But then when Congress eventually talked about this in 1863, they said everything 148 00:14:09.440 --> 00:14:14.240 he did was legal. Lincoln's good. But they didn't say Lincoln can suspend habeas corpus 149 00:14:14.240 --> 00:14:20.600 until, oh no, I'm sorry, it was 1861 that Congress started kissing up to him. But in 150 00:14:20.600 --> 00:14:26.300 In 1863, they said Lincoln can suspend habeas corpus. He's authorized to do it even more 151 00:14:26.300 --> 00:14:33.300 broadly than he had ever requested the power to do. And Lincoln jumped on that. In 1863, 152 00:14:33.300 --> 00:14:38.900 in September, Lincoln essentially suspended it for the whole country. So we see how habeas 153 00:14:38.900 --> 00:14:42.660 is protected by the federal government, not very well. 154 00:14:42.660 --> 00:14:49.920 Now after the Civil War, we again had a very interesting dynamic because of Reconstruction. 155 00:14:49.920 --> 00:14:55.720 On the one hand, the Reconstructionists wanted some ability to protect the freed slaves, 156 00:14:55.720 --> 00:14:59.700 the former slaves, and their civil liberties and the right to bear arms, and to give teeth 157 00:14:59.700 --> 00:15:02.120 to things like the 14th Amendment. 158 00:15:02.120 --> 00:15:09.600 So they eventually passed the 1867 Habeas Corpus Act. 159 00:15:09.600 --> 00:15:17.400 But then the next year, it ended up being used to protect this guy, McCardle, who was 160 00:15:17.400 --> 00:15:23.560 was a critic of Reconstruction, which was illegal in some cases, criticizing Reconstruction 161 00:15:23.560 --> 00:15:29.560 was a violation of the Reconstruction Act. And so the Federal Court said, well, he has 162 00:15:29.560 --> 00:15:34.480 habeas corpus, and you know, the Reconstructionist said, oh no, we didn't want habeas corpus 163 00:15:34.480 --> 00:15:40.280 to protect people that disagreed with us. We wanted it to protect freed slaves and actually 164 00:15:40.280 --> 00:15:45.280 protect the military, the federal military dictators in the South and protect them from 165 00:15:45.280 --> 00:15:56.560 from State Prosecution. So they amended it and then the real nail in the coffin of the 166 00:15:56.560 --> 00:16:05.920 old order of Hades Corpus was in 1871 in Tarble's case. There was a kid named Edward Tarble. 167 00:16:05.920 --> 00:16:12.120 He was a miner from Wisconsin and he had enlisted in the military but his father said, you know, 168 00:16:12.120 --> 00:16:42.120 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 169 00:16:42.120 --> 00:16:57.120 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. 170 00:16:57.120 --> 00:17:08.120 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. 171 00:17:08.120 --> 00:17:38.120 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 172 00:17:38.120 --> 00:17:43.120 And it's kind of like I don't think there should be cops, but one out of a million times 173 00:17:43.120 --> 00:17:49.120 the cops do something right and in that one time I won't really oppose it that much. 174 00:17:49.120 --> 00:17:55.920 So I would say that I lean toward a broad, liberal, federal habeas corpus now, but what's 175 00:17:55.920 --> 00:18:02.280 really unfortunate is we've really moved away from the original design completely. 176 00:18:02.280 --> 00:18:08.560 And again, a totally, as far as I know, neglected part of our history, because everyone talks 177 00:18:08.560 --> 00:18:13.720 about Habeas Corpus, especially because of the Bush cases, but under the original law, 178 00:18:13.720 --> 00:18:19.800 Bush would have potentially 50 state courts to deal with, and that would be beautiful. 179 00:18:19.800 --> 00:18:24.360 Or Obama, of course, or any federal official. 180 00:18:24.360 --> 00:18:30.640 So another thing also that I've been reflecting on is, again, the federal government isn't, 181 00:18:30.640 --> 00:18:34.560 The state governments are all terrible, without exception, because they're the embodiment 182 00:18:34.560 --> 00:18:38.840 of evil insofar as they are state governments, right? But the federal government has not 183 00:18:38.840 --> 00:18:44.240 really been a very good protector of habeas corpus and the effective meaning of habeas 184 00:18:44.240 --> 00:18:50.680 corpus either. I mean, they, you know, they gave us a Japanese internment by an Earl Warren. 185 00:18:50.680 --> 00:18:56.840 Again, he was terrible on that, but then he's become one of the more expansionist thinkers 186 00:18:56.840 --> 00:18:59.880 and Federal Habeas Corpus in the 20th century. 187 00:18:59.880 --> 00:19:05.960 And another really fascinating thing to me is we have far more prisoners on the federal 188 00:19:05.960 --> 00:19:11.920 and state level now, and we have Federal Habeas Corpus that's broader than before. 189 00:19:11.920 --> 00:19:14.640 They can question your detention after you're convicted now. 190 00:19:14.640 --> 00:19:17.680 In fact, that's what most people mean when they say Habeas Corpus. 191 00:19:17.680 --> 00:19:23.800 They mean Federal Habeas Corpus to check state detentions of convicts, which, again, I'm 192 00:19:23.800 --> 00:19:30.360 I'm not really opposed to it, because I don't think I tend to be anti-prison actually, but 193 00:19:30.360 --> 00:19:35.720 we have so many people in prison and it doesn't work and I think a lot of the reason we have 194 00:19:35.720 --> 00:19:41.480 a lot of people in prison are the same reasons that habeas corpus came to be nationalized. 195 00:19:41.480 --> 00:19:47.240 There was this movement toward nationalism and the central state as well as statism in 196 00:19:47.240 --> 00:19:52.160 general and of course the federal government now that there's no one to check them except 197 00:20:22.160 --> 00:20:27.040 for Federal Marijuana Law? Well, federal marijuana law is unconstitutional, and that would be 198 00:20:27.040 --> 00:20:31.640 a habeas corpus claim, but we've lost that, and you can't really have those kinds of interesting 199 00:20:31.640 --> 00:20:35.680 claims when you have so many damn people being arrested. They have to limit it, because they 200 00:20:35.680 --> 00:20:39.640 don't want to, and that's usually the conservative argument. If you look at the conservative 201 00:20:39.640 --> 00:20:45.120 argument for limiting federal habeas corpus, it's usually, well, we don't want to clog 202 00:20:45.120 --> 00:20:52.120 the system up, we don't want to spend too much money on this, because as we know, conservatives, 203 00:20:52.120 --> 00:20:57.120 If the money is going to feed prisoners or to build museums, they're totally against it. 204 00:20:57.120 --> 00:21:02.120 If it's a trillion dollars to bail out Wall Street or kill a million people, they're for it. 205 00:21:02.120 --> 00:21:12.120 So we've got a pretty sad situation overall because America prides itself, as it should, for having a robust habeas corpus tradition. 206 00:21:12.120 --> 00:21:21.120 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. 207 00:21:21.120 --> 00:21:25.920 about it, but we have the most prisoners too. We have the most people in prison who shouldn't 208 00:21:25.920 --> 00:21:31.680 be there on moral grounds or on constitutional grounds. So what's that mean? It means that 209 00:21:31.680 --> 00:21:37.900 some state that doesn't have habeas corpus at all might be freer on average if your fear 210 00:21:37.900 --> 00:21:45.600 is being locked up without a cause than our country that has the best habeas corpus tradition 211 00:21:45.600 --> 00:21:51.120 of the Mall. So, for those of you who are pro-habius corpus, I think you should still 212 00:21:51.120 --> 00:22:00.120 be pro-habius corpus. You should really think more about the way that first Judge Taney, 213 00:22:00.120 --> 00:22:06.560 the pro-slavery, horrible Supreme Court Justice, who was good on some, everyone's good, and 214 00:22:06.560 --> 00:22:13.160 Hitler was against Stalin, and Stalin was against Hitler. But Taney, he was terrible 215 00:22:13.160 --> 00:22:18.600 on this where it really counted and then Lincoln and and the reconstructionists were overall very 216 00:22:18.600 --> 00:22:24.120 terrible and they'll be good half the time and bad half the time as we're so used to but I think we 217 00:22:24.120 --> 00:22:30.920 should reflect on what we've on that legacy we've lost of decentralized habeas corpus we should think 218 00:22:30.920 --> 00:22:36.920 about it in terms of the individual liberty now and maybe try to restore decentralized habeas corpus 219 00:22:36.920 --> 00:22:41.880 I don't think we're going to have any good luck in the short term this sounds pretty crankish probably 220 00:22:41.880 --> 00:22:47.800 in the mainstream, but I also think this is an important issue to really reflect on what 221 00:22:47.800 --> 00:22:49.280 it is that it's about. 222 00:22:49.280 --> 00:22:53.160 We don't care so much about the judge's power to say, bring this prisoner forth because 223 00:22:53.160 --> 00:22:56.340 I want the money, which is how this thing came about. 224 00:22:56.340 --> 00:23:01.680 We care about the end result of individuals who shouldn't be in cages being released 225 00:23:01.680 --> 00:23:07.400 from cages, and to that end, I think we should make any argument that's not totally absurd 226 00:23:07.400 --> 00:23:13.560 and not totally self-refuting that we can, and I'm sorry for those of you who might have 227 00:23:13.560 --> 00:23:22.680 thought the history of habeca corpus was purer or less muddled than that, but like everything 228 00:23:22.680 --> 00:23:27.680 else that we idolize in history, it's a mixed bag. Thanks.