Grits for Breakfast points out a provocative book that might revise the way we understand the evolution of the writ of habeas corpus and what it means constitutionally.
Here's a scholarly review.
From Grits: Halliday argues provocatively that “what constituted liberties was the result rather than the starting point of judicial decision-making,” and that the British Parliament's role was mainly to limit habeas authority rather than establish it.
Ironically, despite Justice Stevens' claim that the status of the "Great Writ" in 1789 provides the floor for its authority, Vladek says "perhaps the most radical way in which American practice has diverged from England’s has been the evisceration ... of the common law as a basis for habeas jurisdiction." Justice John Marshall in 1807 was the first to withdraw habeas authority from its more robust and wide-ranging common law roots to insist that “the power to award the writ by any of the courts of the United States, must be given by written law.” Writes Vladek, "In other words, the Article III federal courts—including the Supreme Court—were powerless to issue common-law writs of habeas corpus, and could only act pursuant to express statutory jurisdiction." The reviewer concludes that "Whether he misunderstood English history or misrepresented it, Marshall thereby perpetuated critically incorrect assumptions about the scope of common-law habeas corpus at the Founding."
I'll be honest, I can't completely follow what's going on here, but it seems that John Marshall may have misunderstood the proper basis of habeas corpus and our subsequent interpretation of habeas corpus has in turn been wrong.
