Chief Justice Roberts is right: Guantanamo is “unique.” [p2] But can that which is unique be analogized? If not, why work by analogy? Yet this is what the justices have generally sought in the past. They ask, what case can I find that looks like today’s? Simple answer? None. To ask this question of the past is to seek what is not there: the present. Approaching the past this way means missing the chance to develop the kind of historical analysis that might help us think our way into the problems we confront today.
Even with over 11,000 people using habeas corpus in the 300 years before 1789, no case can provide the strict analogy the justices seek. That said, many come close: “prisoners at war” in the 1690s; Frenchmen and Indians in Bengal; writs used across centuries in a host of “jurisdictionally quirky” [Roberts, p28] settings from Berwick to both Bostons, and in Barbados and beyond. So what? Looking for a case is to overlook how serious historical explanation might better inform contemporary legal thinking.
What we find in thousands of cases across thousands of miles are patterns revealing principles about habeas corpus. Recovering such principles through historical analysis provides us with ways of thinking not only about the past, but about our present, ways that may surprise and help us—regardless of our partisan or jurisprudential commitments—because they bring us into our questions from unanticipated points of entry.
Consider three principles Justice Kennedy identifies out of the past:
1) habeas corpus rests on a theory of power, not a theory of liberty [p10],
2) it was “an adaptable remedy” [p50],
3) by which “liberty and security can be reconciled.” [p70]
That habeas rests on monarchical power, not proto-liberal ideas, may sound disturbing. But ideas about the prerogative, taken up by royal justices around 1600, built the legal refuge to which later ideas about liberty could resort for safety. A prerogative writ made a legal unity of otherwise quirky places. Place was not the point in habeas litigation. People were: the king, his officers, and their accountability to the king, through his justices, for their detention of his subjects, both “natural” and “local.”
Given early modern jurisdiction’s impressive quirkiness, adaptability was the writ’s essence. Church courts, justices of the peace, conciliar courts, and more: all answered the writ, because the justices accepted no impediment to their adaptation of the writ to new circumstances. Across the 17th century, the judges humbled one quirky place after another: Berwick, the Marches of Wales, Durham, the Channel Isles. Judges in new courts joined those in King’s Bench, issuing the writ in the Caribbean (to which King’s Bench also sent writs in the 1670s), in India, Quebec, and beyond. Adaptability explains the astonishing independence of the court in the 1640s, when the justices used habeas corpus to release those imprisoned by military officers and jurisdictional novelties thrown forth in the maelstrom of civil war.
Because no jurisdictional quirkiness imparted immunity from judicial supervision (see below, for the exception), the writ became the means by which liberty and security might be reconciled. Chief Justice Holt showed powerfully this capacity to reconcile liberty and security between 1689 and 1710. He and his court released hundreds of accused traitors and spies—French, Irish, Scots, and English—during a period of war and threatened rebellion, while always taking care to identify those who might, by law, properly endure all the horrors trial and conviction for treason might bring. Justice Scalia may be right to decry the “judicial supremacy” [p17] judges like Holt seem to threaten. Whether that is a danger, and how it might be addressed, are not questions for historians. But the history suggests nothing if not the capacity of judges, like Holt, to consider the legality of any detention, of any subject, “local” as well as “natural.”
The one exception? Parliament, its imprisonment orders, and the imprisonments made possible by its statutes. This morning’s papers all remark on the “rebuke” the president has received. Perhaps. More notable, viewed from England’s history, is the rebuke given to statutes and to the Congress that makes them. No force has imposed more limits on the ambit of habeas corpus from 1679 forward than statute. The Habeas Corpus Act of that year—always lauded—imposed unanticipated limitations on the writ in later years. Successive statutes suspended bail (though never habeas corpus) in times of national crisis, even when the claim of crisis seemed dubious at best. Statutes made by colonial assemblies made possible slave regimes on the western side of the Atlantic that no triumphant proposition from Somerset’s case could void. Statute impressed thousands of seamen into the stinking bowels of His Majesty’s Ships against their will. If, as Justice Scalia suggests, “history teaches” [p23], what it teaches is that perhaps we must look our elected representatives—and thus ourselves—in the face and ask how we came to this pass.