Rethinking the Great Writ Transcript

J. Joel Alicea (00:00:01):

Okay, well, welcome to the American Enterprise Institute and to our event, Rethinking the Great Writ. I’m Joel Alicea. I’m a nonresident fellow here at the American Enterprise Institute. I’m also a law professor at Catholic University. And more relevantly to this event, I’m the co-director of the Project on Constitutional Originalism and the Catholic Intellectual Tradition or CIT for short. CIT is a co-sponsor of this event, so let me just say a brief word about it.


CIT explores the relationship between American constitutionalism and the Catholic intellectual tradition. We do that through events like this one, speakers’ events in partnership with other organizations across D.C., but also fellowship programs for young adults and for students at CUA and courses that we offer through the law school. You can learn more about us and sign up for our email list at This is one of many events this year that we have co-sponsored with AEI. We’re very grateful is always to AEI and to Yuval Levin in particular for hosting us for this conversation. We have a fascinating topic today and it’s an outstanding panel to my right to discuss that topic. As I said, the title of the event is Rethinking The Great Writ. A writ is an order issued by a sovereign or by a government official telling someone to do something or not do something. The great writ refers to the writ of habeas corpus, which roughly means bring the body. For many centuries in Anglo-American jurisprudence, the writ of habeas corpus has been used to order an executive officer to explain and justify the detention of someone in the officer’s custody. The great writ was seen as so important by the American founders that they gave it constitutional protection in Article 1, Section 9, Clause 2 of the Constitution, which reads: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” It’s called the Suspension Clause. Thus, the writ of habeas corpus is elevated above all other traditional writs that the courts have in law and equity. And for that reason it merits a more extended scholarly attention.


Now until very recently, scholars thought of the writ of habeas corpus primarily as a safeguard for individual liberty against the power of the state. The idea is that the great writ prevents the state from abusing its police powers, requiring the state to have a legal basis for imprisoning or detaining someone. But recent scholarship has challenged that understanding of the great writ. Specifically my colleague, Professor Will Kamin, to my right, has an article coming out in the Stanford Law Review called The Great Writ of Popular Sovereignty, which builds on recent historical scholarship to argue that the writ of habeas corpus should instead be understood as a way of ensuring that the sovereign’s commands are lawfully carried out. Professor Kamin argues that this has significant theoretical and doctrinal implications for American habeas jurisprudence.


And we’re privileged to have Professor Kamin here with us today to explain his groundbreaking article. We’re equally privileged to have two other panelists who are ideally suited to comment on the article. I’m going to introduce them and then turn it over to Professor Kamin to give us an overview of his article. We’ll then go to Judge Oldham and Professor… Actually I’ve never asked you how to pronounce your last name.

Marah Stith McLeod (00:03:18):


J. Joel Alicea (00:03:18):

McLeod. Thank you. Professor McLeod. I always call her Marah. Professor McLeod to give their remarks. I’ll then moderate a discussion among the panelists before opening it up to a Q&A from you, the audience. And for those of you who are watching through our live stream, you can just go to the website and you’ll see all the information for emailing your questions or tweeting them. I guess you don’t say tweet anymore. Somehow conveying them through social media to us and I will have them here on my iPad. So we look forward to your questions very much.


So let me just introduce our three panelists and then we’ll get right to the discussion.


Will Kamin is assistant professor of law at the Catholic University of America and a fellow of CIT, the organization that’s co-sponsoring this event. Professor Kamin’s scholarship focuses on habeas jurisprudence. As I mentioned, his first law review article, The Great Writ of Popular Sovereignty, will be published in the Stanford Law Review in 2025. And let me just say for the non-lawyers, non-law professors in the audience that the Stanford Law Review is widely regarded as one of the top three law journals in the country. And to have Professor Kamin’s very first law review article as a scholar published in the Stanford Law Review is an extraordinary achievement. It speaks to the quality of the work that we’re focusing on today. Professor Kamin clerked for Judge Richard Sullivan on the United States Court of Appeals for the Second Circuit and for Judge Diarmuid O’Scannlain on the United States Court of Appeals for the Ninth Circuit. He received his law degree from Yale Law School, his undergraduate degree, summa cum laude, and Phi Beta Kappa from Amherst College.


Judge Andrew Oldham is a judge on the United States Court of Appeals for the Fifth Circuit. Before ascending to the bench, judge Oldham held a number of high-profile government positions including general counsel to Texas Governor Greg Abbott, deputy solicitor general for the state of Texas, and attorney advisor in the Office of Legal Counsel at the US Department of Justice. He also practiced law at Kellogg Hansen here in D.C. He clerked for Justice Samuel Alito on the Supreme Court of the United States and for Judge David Sentelle on the US Court of Appeals for the District of Columbia Circuit. He earned his law degree, magna cum laude, from Harvard Law School, his M.Phil, first class, from Cambridge University on a Truman Scholarship, and his undergraduate degree with highest honors from the University of Virginia.


And I’ll just say that Judge Oldham, I think it’s fair to say, is widely recognized as one of the most knowledgeable jurists in the country when it comes to habeas jurisprudence. Not only has he written a lot of opinions in this area, but just has a deep well of knowledge about habeas jurisprudence. So we’re very lucky to have him joining us today.


Finally, Professor Marah Stith McLeod is an associate professor of law at Notre Dame Law School. Her scholarship focuses on criminal law and has appeared in such places as the Virginia Law Review. She clerked for Justice Clarence Thomas on the United States Supreme Court and for Judge Diarmuid O’Scannlain on the United States Court of Appeals for the Ninth Circuit. I’ll just note here parenthetically, totally by accident all three of us clerked for Judge O’Scannlain, all except the judge. So Judge O’Scannlain will be proud of that I’m sure. I’ll just note that she also practiced law at Sidley Austin and in another interesting connection served alongside Judge Oldham in the Office of Legal Counsel. So they actually worked together at OLC. And she earned her law degree from Yale Law School and her undergraduate degree, magna cum laude, from Harvard College. So please join me in welcoming our three panelists.


And Professor Kamin, take it away.

William M. M. Kamin (00:06:46):

First of all, thank you Joel and thanks to the folks at AEI for hosting us here in this lovely, lovely room on this equally lovely afternoon. So as Joel said, we sort of almost by muscle memory refer to habeas corpus as the so-called great writ of liberty. The idea there is that habeas is this great bulwark for the physical liberty of the individual. The idea as we sort of tell the story is that the legal wrong that we’re trying to remedy with habeas is an incursion on that individual physical liberty and that the habeas proceeding is first and foremost sort of a confrontation between the individual who is seeking to vindicate his or her individual physical liberty and the jailer who has deprived him or her of that.


Before I get into why I think that as a matter of history that that that way of conceptualizing the writ might be a little off, I think it’s important to talk just for a brief moment about where the ostensible great writ of liberty finds itself today. Which I think it’s fair to say there’s sort of a cross ideological consensus that it’s really a mess that American habeas jurisprudence is sort of in a bad way, both in terms of its intellectual coherence. I think there are a lot of ideas that are animating and driving different doctrines in our habeas jurisprudence that are really difficult to reconcile with each other. I think there are also just a lot of seemingly rudimentary questions about habeas that no one can seem to agree on.


And then as a practical matter, habeas provides relief to almost no one. It vindicates the individual physical liberty of almost no one and at immense, immense cost in the way of institutional resources. There are thousands of habeas petitions that flood onto the dockets of the federal courts every year that require immense time for those judges to analyze and for states… And in the case of federal habeas, for the Justice Department to respond to, and yet less than one third of 1% of those habeas petitions are actually granted. And so I think it’s worth just sort situating ourselves there first in this intellectual disaster area as my friend Larry Yackle at Cornell has called it, or BU rather.


So I think in the midst of that kind of intellectual disaster area and practical sort of sea of wasted resources and in factuality, I think there are a couple of consensus points that everyone can sort of agree on in habeas right now beyond the agreement that things really are a mess.


One of those points of consensus is that history matters. I think in a lot of other areas of American law there are still pretty heated debates between originalists and non-originalists, but habeas I think is a little bit different. Habeas is an area where I think a lot of scholars and judges who are not otherwise sort of disposed to originalism or otherwise sort of history intensive methodologies agree that habeas is an area where our modern jurisprudence has to be driven by history. And I think a primary reason for that is that we all sort of understand that American law where it refers to this thing called the writ of habeas corpus, it does so obliquely and backhandedly in a way that’s referring to some sort of pre-existing tradition that we inherited from English law. And we’re not just sort of creating on a blank slate ourselves at the time of the founding or really any time thereafter. So that’s one point of consensus.


Another point of consensus that has emerged quite recently is that the new definitive starting point for understanding the English history of habeas corpus throughout the centuries, running up to the American founding, is the work of a historian at the University of Virginia named Paul Halliday. And so Halliday’s work essentially makes the case that in England, throughout these critical centuries in which the writ was being developed by the justices of the Court of King’s Bench, that it was really understood as not sort of a check on sovereign power, but rather a way of vindicating and reifying sovereign authority, specifically in the face of agents or franchisees of the crown. What we in our more modern parlance might think of as inferior officers.


As Halliday pithily puts it, habeas, first of all, it was a power rather than a right. It was a judicial power and it was one that was concerned more with the wrongs of jailers than with the rights of prisoners. And to be sort of patently clear, when we’re talking about wrongs of jailers, those were being conceptualized not as wrongs against the individual, at least in a direct sense, but rather as wrongs against the king whose delegated penal power was being exercised by his franchisees when they used that delegated power to imprison the king’s subjects.


So I think immediately scholars latch on to the methodological rigor of Halliday’s account. I won’t get into the nitty-gritty of that, although if any of you are historical methodology geeks, I’m happy to answer questions in the Q&A about why it is that agrees that Halliday had gotten it right in a way that such prominent figures as Blackstone had sort of gotten it wrong. So scholars all coalesce around Halliday and then the US Supreme Court gives Halliday’s account. It’s sort of very full-throated stamp of approval in the 2009 case of Boumediene v. Bush, which I think we might also talk a little bit about in the Q&A.


But so in any event, these two consenses, which I believe is not a word or wasn’t a word until I just coined it now, seem to point to this pretty sort of easy, straightforward syllogism. If what American habeas is, is sort of whatever English habeas was, we seem to agree on that. And then we also seem to agree that contrary to what the sort of myth we’ve been telling about English habeas for quite a while, that English habeas was really conceptualized as a tool whereby a sovereign sort of insists on having a right to know what that sovereign’s agents are doing with that sovereign’s delegated penal power and to insist that any unfaithfulness to the terms of that delegation be examined by that sovereign’s judges. It would seem to follow that in the American republic where the sovereignty of the king has been relocated to the people of the United States, that we should be conceptualizing American habeas sort of first and foremost as a tool whereby the legal interests of we the people to have penal power exercised sort of consistent with the sovereign commands that we’ve expressed through our constitutional law.


And that I think once you flip the kaleidoscope in that way, it ends up having pretty real implications for our habeas doctrine. I realize that on first glance, it might just seem like a fun mental trick to say what we’re interested in here is… We’re still interested in abuses of official power. And so you might say, well, who cares if we’re looking at those abuses of official power as wrongs vis-a-vis individual liberty or wrongs vis-a-vis the sovereign who has sort of articulated commands as to where, when, how under what conditions, through what processes individual liberty may be deprived.


Again though, I think that when you delve into some of the most important and hotly contested questions on the ground in habeas jurisprudence right now, that this sort of shift in how we conceptualize the purpose of the American writ actually really changes things in a pretty meaningful way. The paper gets into a big menu of different sort of concrete doctrinal implications, which I think it’s fair to say there’s something in there to please everyone and also something in there to upset everyone. I think they sort of cut across traditional ideological lines, but one that I guess I would like to highlight just quickly before I turn it over to my co-panelists is this debate that Justices Kagan and Gorsuch started, well, now three terms ago, in Justice Gorsuch’s concurrence in a case called Edwards v. Vannoy. They sort of continued it in a case called Brown v. Davenport. And then in the latest round, Justice Thomas sort of took the mantle from Justice Gorsuch in a case called Jones v. Hendrix and there Justice Jackson authored a dissent that was likewise sort of echoing some of the points that Justice Kagan had made in Brown V. Davenport.


But so in any event, this debate is really in some ways over whether we should have post-conviction habeas review at all. And just for any non-lawyers in the audience or non-habeas geeks, for a long time habeas was focused on pre-trial prisoners. Habeas petitions would be brought in England by people who were subject to official penal power but hadn’t been tried yet. I think part of the reason perhaps why we didn’t see more of what we would now call post-conviction habeas is that a lot more crimes were punishable by death, and death sentences in England were carried out a lot more swiftly than they are here. And so as a practical matter, you wouldn’t see someone sort of… If they were convicted and then put to death a week later, you wouldn’t see them bringing a habeas petition.


But now we have a system of post-conviction habeas review, where after someone has been convicted in a state or federal court, they can bring a habeas petition after the fact to challenge the validity of the adjudication that led to their conviction and imprisonment. There is a long line of cases sort of starting in the late 19th century, running up to about 1953, where you see courts reciting this maxim that post-conviction habeas review can only reach jurisdictional defects in the court of conviction as opposed to substantive legal errors. What that means is the subject of this sort of Gorsuch-Kagan debate where Justice Gorsuch would give jurisdictional pretty much the same sort of narrow, tightly constrained meaning we give to it today. Sort of power ab initio over the subject matter of the case and over the parties and that’s it.


So in other words, unless you had a situation where a justice of the peace who lacked felony jurisdiction had purported to convict someone of a felony, or you had a court marshal that had purported to convict a civilian, post-conviction habeas review would not be available.


Justice Kagan, on the other hand, essentially takes the view that this maxim was just illegal fiction and that jurisdictional defect really did just mean any legal error. And I think the actual historical evidence seems to suggest that neither of them is quite right in that there are a lot of cases where we will see courts recite this maxim and then proceed-


… recite this maxim and then proceed to analyze what in modern parlance we would call constitutional errors. And yet those late-19th, early-20th century American courts cast as jurisdictional defects. So I think that pokes a hole in Justice Gorsuch’s position. But on the other hand, there are plenty of other cases where courts recite this maxim and then refuse to make that move and say, “No, the error that the habeas petitioner is raising really is a legal error that doesn’t rise to the level of a jurisdictional defect.” And I think those cases poke a serious hole in Justice Kagan’s position. And so I think that this whole conceptual shift towards thinking of American habeas as the great rid of popular sovereignty helps us to make sense of what’s going on in that long line of case law that obviously has the interpretation of which obviously has really high stakes right now.


And what I think is happening is that when courts are talking about jurisdictional defects in a way that’s somewhat broader than we might mean today when we throw around a phrase like that is I think they’re getting at a concept of ultra vires action. If we think about habeas as I argue that we should in terms of agency principles, the agency principles that govern a delegation of power between a principal that is a sovereign and an agent that is a franchisee or a government officer who’s exercising delegated penal power, then I think it suddenly makes a lot more sense to say that some, though not all violations of constitutional law, of federal constitutional law that is in a court of conviction might be akin to a jurisdictional defect in the sense that when an agent acts contrary to the directives of the principle, that’s thought of as ultra vires action.


It’s action outside the scope of delegated power or delegated authority that the agent has. And I think that in that sense, when we’re superimposing agency principles onto the constitutional structure of criminal law, it would make sense to say that some, again, not all violations of constitutional law by a sentencing court would render them void of jurisdiction. So that’s one of many places this can take us and I’d be happy to chat about more in Q&A, but I think my time is more than up, so I’ll turn it over to my friends on the panel.

J. Joel Alicea (00:27:36):

Well, actually, you were exactly within your time limits, so that was perfect. Will, thank you very much. Judge Oldham.

Andrew Oldham (00:27:42):

Thank you. Well, I can’t tell you what a joy it is to be here. I love coming back to visit AEI and I can’t tell you what a joy it is to be here to talk about this particular subject because this is something that I find fascinating and interesting. It consumes an enormous amount of federal court docket space. It is something that anyone who’s ever clerked in the federal system or served in the federal system in any way sees with some regularity. And I am constantly shocked by how little we teach it in law school, so huge kudos to Professor Keeman and Catholic. I think it’s wonderful to have a habeas scholar on the faculty and huge kudos to the Stanford Law Review. What a wonderful thing it is to have a top tier law review publishing in this space. I think it is an amazing and wonderful thing to focus our minds and our intention on something that is as important as liberty or popular sovereignty or whatever you want to call it. It is a big fraction of what we do in federal court.


And so I think it’s really important. I think it’s a wonderful thing. It’s an honor to be here and to visit with you. One of the things that Professor Keeman said in his opening remarks was that all agree when we talk about habeas that history matters. And I certainly in that all. History that absolutely does matter. And one of the big premises of Professor Keeman’s article is that whatever the quantum was of habeas that existed in England before the founding of America, it somehow is either directly transmuted into the constitution or indirectly it’s approximated into American law. We receive it into American law. It’s reflected in the suspension clause. It’s adopted into Section 14 of the first Judiciary Act of 1789. So whatever that pre-existing habeas was in England is really, really important to understand the baseline of American habeas.


So I’d like to pick up there by talking a little bit about the who, what, when, where, why, how of habeas in England. And I promise I’m going to do everything I… For those who are not anglophiles and scholars of 17th century English history, I’m going to do everything I can to make this interesting. I promise there will be prisoners in the tower and drama and crazy writs. So I’m going to try to talk a little bit about it, but I want to do all of this by way of pushing on what I think is the core conceptual claim in this article, which is this dichotomy between liberty and popular sovereignty. That is that Blackstone and people from time immemorial have said, “Oh, the writ of habeas is the great palladium of liberty. It is the thing that protects people and their liberties from abuses of the executive or the king,” or the crown or whatever, versus professor Keeman’s reconceptualization of it, which is no really, it’s vindicating sovereignty, it’s vindicating the will of the sovereign, whether it’s the sovereign king in England or the people as sovereign in America.


And I want to talk a little bit about how we get there in England and see if we can push on that premise for a minute. So let’s start with the who. Who is seeking habeas in England? And I agree with Professor Keeman on this 100%. It’s arrestees. It’s people that get arrested, but they’re either awaiting trial or perhaps more commonly not being brought to trial. And so they’re just languishing. They’re often in the Tower of London. They’re often just in an urban jail and they’re just sitting there. They don’t know what the charges are. They don’t know if they’re ever going to go to trial. They don’t know what the result of the trial is going to be. They’re just sitting in jail and they seek habeas corpus pre-trial. They are arrestees. And one of the reasons it’s going to become really important is because when we say habeas, when we Americans say habeas today in 2024, it is almost always used as Professor Keeman did.


It’s almost always used as a synonym for post-conviction relief. That is for people in particular in the state system, but also in the federal system who have had a trial, who have had an intermediate appeal who’ve gone to the Supreme Court of the United States on any kind of question that they may have had arising under the laws of the United States on direct appeal. They’ve had state post-conviction or federal post-conviction, they’ve had perhaps a second round of state post-conviction or federal post-conviction and they’ve been litigating for years and years and years after a jury has adjudicated them guilty or a judge has adjudicated them guilty in a bench trial or they’ve accepted a plea agreement and conformity with the constitution. They’re way, way, way down the road. So at the very beginning, the distinction between English habeas for arrestees and American habeas for post-trial litigation is super, super important and patent, and I hope we would… I think everyone agrees, Paul Halliday certainly agrees that that is a really important distinction between the who in England and the who in America.


So what was the writ? What was it exactly in England? Well, one of the points that Halliday makes in this book, and I agree with him on this 100%, is that what we call habeas corpus is… And I took Spanish for years and years and years. I even took a little bit of Russian. I never took Latin. So I am terrible at pronouncing Latin, and so I’m going to butcher any Latin words I try to use. So with a huge trigger warning, please don’t laugh at me, I know it’s bad. What we call the great writ is habeas corpus ad subjiciendum. And that is a fusion of a bunch of other writs like habeas corpus concausa, [inaudible 00:33:06], the writ of subpoena, a bunch of things that existed in English law that were ways that courts could order people to do stuff.


They could say for in a writ of subpoena, “Bring the documents.” They could say in a writ of concausa, “Bring the prisoner.” They could say in a writ of habeas corpus ad deserendum, “Bring the entire case.” So they’re all a bunch of these different writs. They all get mushed together over the mists of English common law until the 17th century when they turn into, to save your ears from a horrible Latin pronunciation, I’ll just call it the great writ, which is a distinct form, but also an amalgamation of other forms of habeas corpus. What do they get if they got habeas? Well, they got some form of release. So if they were in pre-trial detention, they could be bailed, which looks a lot like the way we understand bail today. If they weren’t awaiting trial on anything, you could get a judicial review of what it was exactly that the executive intended to charge them with, what it was. The cause of the denition, that’s the concausa in habeas corpus.


So you could get some form of review and then you could get some form of release, temporary or permanent. But it was always sounding in release. That was the nature of the habeas remedy. And so if you said to an Englishman in the 1700s or 1600s, “What is habeas corpus?”, they would understand it to be some amalgamation of old common law, writs combined with the remedy of release. As I said, when were they seeking it? Virtually without exception, pre-trial. In fact, I’ve read the Halliday book a couple of times and I can’t think of an example of a post-trial habeas application in England. Almost by definition, by its nature, it was a pre-trial remedy and a pre-trial application. Where were they seeking it? And this is where I really want to join together with Professor Keeman.


They were seeking it in the king’s courts, off the court of chancery, off in the court of the king’s bench or the queen’s bench, depending on who was on the throne. And so this is true. It is absolutely true, and I’m going to read to you one of these writs in just a second, you’ll understand what I mean. When the writ issues, it’s being issued by one of the king’s officers, it’s being issued to one of the king’s jailers, and the subject of the writ is one of the king’s subjects. So it’s all in the nature of sovereignty. It’s all being said in the name of the king, no doubt. That is 100% true. But this is where I’m going to part company, which is why were they seeking it? And the answer, when you go back and you read in the 17th century between, say, 1605 and the end of the stewards, the reason they were seeking it was to check the of the Stuart monarchs.


It really was fundamentally, in my view, a separation of powers remedy. And they did not have separation of power. Don’t misunderstand me. They did not have separation of powers the way we do today. They didn’t have three branches. As I said before, it was the king’s bench. Those were the king’s judges. One of the examples I’m going to give you in a second, one of the members of the king’s bench when it pushed back against Charles I was removed from office for pushing back against the king, something that obviously could not happen in our separation of powers. When I say separation of powers, I don’t mean it in a way that Americans understand it, but it was separation of powers in the sense that it was people wearing robes, checking the behavior of people not wearing robes. It was a judge protecting a subject from an abuse by the crown, fundamentally, in my view, in the 17th century anyway.


So how did it work? Let’s talk about some examples. This is what I hope will make this interesting. Okay, so consider this case of Nicholas Low. This is in 1605. So this is in the reign of James I. So the king’s bench, one of the king’s judges sends a writ. What is a writ? It’s a sheet of paper. It’s an inch wide by 10 inches long. And on it, it says, “In the name of King James I, I hereby command you to produce the body of one Nicholas Low and bring with it the cause of your detention of him.” And it’s addressed to the jailer, it’s addressed to the jailer in Wood Street Counter, which is where he was being held. And the jailer comes back with what’s called a return.


And what’s a return? Well, it’s another sheet of paper and it says, “Well, here’s Mr. Low. We brought him for you to look at, and here’s why we’re holding him. The reason we’re holding him is because he was violating his trading privileges. He was making crossbows and guns in violation of local law. That’s why we’re holding him.” And the king’s bench looks at that and says, “Sorry, that’s not good enough.” And they order him discharged. They say, “That’s not a violation that’ll let you arrest the man. Discharge him.” Okay, so that’s the case of Nicholas Low. It’s a canonical, early habeas case. People study to understand the way the writs work. Paula Halliday talks about it and has the manuscripts for the way it all worked.


Okay, so let’s now talk about a very different case, which is arguably the most celebrated case in all of English habeas history. And I’m not cherry-picking this one. If you went back and you talked to some English history scholar and you said, “What would be the Marbury versus Madison of English habeas law?”, they would point to Darnell’s Case or the Case of the Five Knights. And the Case of the Five Knights arises in the reign of Charles I, and Charles I had been denied subsidies by Parliament. He needed money. And the way that he raised money is that he went around to English subjects and he… They were called forced loans, which doesn’t really sound like a loan. I’m not sure if they would ever be repaid.


But he said, “Give me money.” And lots of people gave him money, and they were recorded on a little loan book. Some people didn’t. These five knights didn’t. These five knights looked at King Charles and said, “Sorry, we’re not doing that.” And so the king said, “Great. Off to the tower.” So they round up… There are a whole bunch of knights that are sent off to the tower because they wouldn’t pay the forced loans to Charles and five of them, Darnell and four of his friends… It’s hilarious, by the way, that the case is called Darnell’s Case because Darnell eventually drops it and only four knights are actually involved in the actual adjudication in front of the king’s bench, but I digress. So it goes in front of the king’s bench on the question of what is the cause of the detention and is there habeas writ for the five knights who have been arrested for failing to pay forced loans to King Charles?


Because when the writ comes back, the jailer says, “We’re holding because the king says so.” The reason for their detention is the king said so. In the five knights or four after Darnell drops out, they lose. They lose. The king’s bench looks at this thing and they say, “Look, the king is…” To Professor Keeman’s point about sovereignty, they look at the writ and they say, “The king is the font of all law. The king has said that you can be detained, therefore you’re being detained in accordance with law.” Habeas denied. That that is the essence of the Five Knights Case.


And so when you look at that, you think, “Okay, the writ is absolutely not a palladium of liberty to those guys.” And it is absolutely a vindication of sovereignty to Professor Keeman’s point, because those guys lose because the king’s rule, the king’s answer, the king’s say so is the law of the land in England in 1626 or 1627. But that is not the end of the story. And this is what I think is so fascinating about so much about English law and it’s one of my principal questions about this move between liberty and popular sovereignty. Because the Five Knight Case plays a pivotal role in calling… Because there’s a massive public outcry.


Everybody was very sympathetic to the knights. The next year, the king has to call a Parliament. The first thing that the Parliament does when they get to Westminster, when they get to London, the first thing that the Parliament does is that they form… Cook and his compatriots, they write the Petition of Right. This is 1626. And in the Petition of Right, they effectively try to overturn Darnell’s case. They ratify that you can’t just arrest people on the king’s say so, habeas corpus cannot be denied, et cetera, et cetera, et cetera. The House of Commons adopts a very robust petition that protects habeas corpus as a right of liberty, a liberty of all English subjects. It goes all the way back and talked about Magna Carta chapter 39. It has a bunch of libertarian rhetoric in it that we would all understand because it sounds very much the way we would talk about liberty today.


It goes to the House of Lords, and the House of Lords puts a bunch of stuff at the end of it that says, “Oh, yes, that’s fine, all of this habeas corpus, et cetera. But we don’t mean any of this to trench on the sovereignty of the king. None of this should trench on the sovereignty of the king. We agree with the sovereignty of the king’s will, et cetera, et cetera, et cetera.” Well, the Lord’s amendment eventually gets struck out in Parliament, and I want to read to you, if you’ll indulge me for just a minute, this is Edward Cook in the House of Commons striking this notion of sovereignty and how we don’t want to tread on the sovereignty of the king. This is in the deliberations of the Petition of Right.


This is what Cook says. “What is this sovereign power? Let us give to the king what the law gives him and no more. To speak plainly, this,” that is to put all this nonsense that the Lord’s wanted about the king’s sovereignty and, “We don’t want to tread on the king’s prerogative and we trust the king.” “This will overthrow our Petition of Right. It trenches on all parts of it. It flies at the loans and the oath and imprisonment and billeting of soldiers in habeas. Look at petitions of former times, they never petitioned wherein there was a saving of the King’s sovereignty. I know that prerogative is part of the law, but sovereign power is no parliamentary word. Magna Carta is such a fellow that he will have no sovereign.” And he goes on to explain, “We’re cutting all of this nonsense out because we understand this writ of habeas corpus to be one of liberty and not of sovereignty.” And in fact, and to be direct derogation of sovereignty, the Lord’s relented, the king assented, the Petition of Right became the law of England.


And it’s arguably the most foundational and important document in all of habeas’s history, at least after Magna Carta. It’s what gives rise to the Habeas Corpus Act later in the 17th century, et cetera. So I will close with a couple of just takeaways. I think it’s totally fair to say that the writ in England was relatively narrow. I think it’s fair to say that the writ of habeas corpus in England was some form of release. But I think it’s also fair to say that the writ of habeas corpus in England was fundamentally about separation of powers. It was absolutely issued in the name of the king, no doubt.


That’s absolutely true. Yes, the members of the king’s bench served at the king’s pleasure and were issuing writs to vindicate the king, at least on the title and the nature of the document. But when you read the words that people like Cook and others were using to describe what they were doing at the time, they fundamentally saw what they were doing as checking the king’s sovereign will of dividing it and of keeping it in line for the protection of liberty of Englishmen. So I think English history has a lot to teach us. I don’t mean to cherry-pick any of this. I’m happy to talk about other examples, but I do think whatever theory we come up with to talk about English habeas needs to account for both Darnell’s Case and the Petition of Right. Thank you.

J. Joel Alicea (00:44:22):

Thank you, Judge. Professor McLeod.

Marah Stith McLeod (00:44:25):

Thank you. So I have been so impressed by Professor Keeman’s work, just the extraordinary clarity of thought and of his writing. He opens a window for all of us, whether historians or legal experts or laypeople into the history and the historical function and purpose of the bread of habeas corpus in ways that has salience for important issues in American law today. Although Frisikeman explicitly builds on the work of Paul Halliday, he makes his claims in a way that is significantly stronger or more forceful, and he adds to it a really masterful exposition of some of the trajectories of American doctrine and habeas practice. So most bold and fascinating is Professor Keeman’s claim that the privilege of habeas corpus referenced in the suspension, along with Suspension Clause of article II is a writ of sovereign prerogative rather than a writ of individual liberty. And that this notion of sovereignty translates in workable ways to popular sovereignty in the United States.


Halliday’s claims on my reading were more limited, and Professor Keeman’s key contribution is really to seek and push out the fuller implications raised by Halliday’s historical archival research. Halliday’s work, in my mind, most importantly, has been understood to help that decision of Boumandin versus Bush reach the conclusion that this writ going to all agents of the Crown, now going to all agents, including military officials of the US sovereign, is going to apply even where you have non-citizens, non-subjects, alleged enemy combatants in Guantanamo. But what I’m most interested in is how and whether Professor Keeman is right to push the implications of this notion of a writ of popular sovereignty in ways that apply to the bulk of habeas petitions in the federal courts. That is to say, petitions raised by state prisoners. I have two reservations about Professor Keeman’s court claims. And even if the writ of habeas corpus was used to check the agents of the sovereign, as Judge Oldham has said, it had the function, at least in most cases, of ensuring and securing the liberty of individuals.


And the writ as a safeguard of liberty was emphasized not just in English history in many points, but by numerous scholars and leaders who influenced the framing of the US Constitution, including Blackstone and also Alexander Hamilton in his Federalist papers. So it seems at least plausible that when the framers saw the writ, they saw it as a safeguard of liberty and not, at least when transplanted into the US context, so much as having this sovereignty function. Why, after all, would we, the people need habeas in order to police the decisions of our agents when the Constitution explicitly provides for other modes of ensuring such accountability, including elections and impeachment? So that’s one possible objection, and I note that Professor Keeman explicitly acknowledges and addresses it, but I’m not yet 100% convinced. So that’s one. My second issue relates to suspension clause and the relevance of the historical record for federal habeas petitions filed by state prisoners. So for this point, even if one accepts that the framers understood habeas…


At this point, even if one accepts that the framers understood habeas corpus as a writ of popular sovereignty, rather than assuming that we can make that dichotomy, rather than a writ of liberty, that leaves major questions to be answered about the relevance of the writ for review of state criminal convictions. As I said, that is the bulk of habeas petitions, the ones that cause that kind of burden on the federal courts that we’ve been talking about.


America’s division of governmental authority between the federal government and the states, limits in my mind the practical relevance of the pre-framing English practice. To understand more fully the relevance of the habeas corpus as understood by the framers and the legal profession in the United States at the time of the Suspension Clause, I would think that we’d want to look at the usage of habeas corpus in the US around the time of the framing and near after.


On this point, until well into the 20th Century, federal statutes did not authorize… Sorry, 19th century. Federal statutes authorized federal courts to review state detention decisions. Not until the Habeas Corpus Act of 1867 did lower federal courts get statutory authorization from Congress to review state convictions. Now that said, both from Professor Halliday and from Professor Kamin, we know that it’s a mistake to think that the core of habeas corpus is derived from statute as opposed to from a common law origin, that there’s this longstanding habeas authority in the courts themselves, whether or not provided by written law.


I’m not aware, and I hope Professor Kamin can speak to this, that federal courts in the decades following the framing frequently used the writ to secure release of state prisoners or even pretrial detainees by state courts. Instead, as far as I can tell, it seemed more common from Halliday’s work and from your mentions that state courts were requiring the release of federal prisoners using habeas corpus, something that Professor Kamin says would also be true to his understanding of the writ.


Given that our constitution establishes that the federal government is one of limited and enumerated powers, this raises serious question for me as to whether our constitution envisions any significant role for federal court habeas review of state convictions. It’s also worth noting that the Constitution explicitly empowers Congress to decide whether to create lower federal courts. These are the courts to whom habeas petitions from state prisoners are normally directed. Thus, by implication gives Congress the authority to deny any rule to the lower federal courts for habeas review.


Another point that leads me to feel some kind of uncertainty about the arguments Professor Kamin is making, that if the privilege of habeas corpus were understood at the time of the founding to mean that federal courts or to include that federal courts could order release of state convicted prisoners, why would the framers go out of their way to permit suspension of the written times of rebellion? Wouldn’t rebellion be exactly the time the people, We the People, would most need a way to ensure that their loyal citizens were not being detained and punished in rebellious states? Understanding the founding era privilege of habeas corpus [inaudible 00:51:38] only, or at least primarily the federal court review of federal detentions would make more sense, perhaps the state review of federal detentions. It would make more sense of the Suspension Clause that in times of chaotic self-defense, the people’s representatives in Congress could limit judicial review of detentions by the federal government for a limited time. All of this suggests to me that our constitution may not require federal habeas review of state convictions and if that’s so, it seems to me that the historical record just doesn’t have that much to tell us that’s relevant to the bulk of habeas petitions that are causing so many problems for the federal courts. Professor Kamin argues the opposite, right? He argues that the big implication of shifting from a conception of the great writ of liberty to the great writ of popular sovereignty that will help us save habeas mostly federal review of state detentions from utter dysfunctionality. It does so at least in part by helping us understand the scope of the Suspension Clause.


In this respect, professor Kamin suggested the Suspension Clause protects at least some federal court review of state convictions. That is why he writes, for example, that restricting federal habeas relief to state prisoner claims of actual innocence might well violate the Suspension Clause. From the perspective of an originalist who cares about the original public meaning of the Constitution and who reads the Suspension Clause to protect the privilege of habeas corpus, to the extent it was generally understood to be available by the framers and the legal profession at the time and thereafter, ratification seems to be a missing piece of support for Professor Kamin’s Suspension Clause claims.


Now, what I find very interesting is I don’t read Professor Kamin to be taking such an originalist approach, and herein lies another major and provocative aspect of his article, which is an invitation for courts and scholars to look at history in a purposivist way, that is not confined to understanding historical usage of the writ, but to capturing its original intent. Thus, professor Kamin can argue that the Suspension Clause protects the historical purpose or function of the privilege of habeas corpus as a safeguard of sovereign authority. That’s why he can suggest that the suspension powers the Suspension Clause gives powers to federal courts acting for We the People, that federal courts not apply at the time of the founding, and that the framers themselves may not have envisioned. As Professor Kamin himself states in the final paragraph of his article, he aims to highlight, here I quote, “The possibility, which I hope my argument for the great writ of popular sovereignty might itself exemplify of a fresh way of using originalism and legal history as generative, rather than constraining forces, as modes of mining the wisdom of the past for creative solutions to the problems of the present.”


I want to look at two creative solutions that Professor Kamin mentions to highlight his proposed methodological approach. First, Professor Kamin argues that a proper historical understanding of the privilege of habeas corpus supports prioritizing habeas petitions by state prisoners claiming systematic violations of constitutional rights. This prioritization indeed accords with the conception of the writ as a means of aligning detention practices with the people’s sovereign commands as embodied in the Constitution.


But this is a novel use of the writ. I do not read Professor Kamin to even suggest that habeas petitions were historically used to raise claims of systematic as opposed to individual injustices. Though surely the individual injustices might have happened to be repeated frequently. Second, and similarly, Professor Kamin argues that the proper historical understanding of a privilege of habeas corpus would support federal court habeas review of state felon disenfranchisement because We the People’s sovereign interests are so clearly implicated by an effort to excise a US citizen from participatory self-government. While plausible as a sovereign prerogative, this use of the writ again, does not appear rooted in historical use.


It raises a question, is the fact of disenfranchisement simply a hook to allow habeas review of a person no longer in detention or does Professor Kamin see these cases as a way to challenge felon disenfranchisement itself? In other words, could a federal habeas court allow the felony to stand but invalidate the resulting disenfranchisement? Would habeas then become a novel avenue not to relitigate criminal convictions, but to challenge state laws?


These are some of the challenges I think one will inevitably encounter if one focuses on the historical purposes of the privilege of habeas corpus, without tethering one’s analysis to the historical usage of the writ at and after the time of the founding. Ultimately, however, I do not read Professor Kamin to say that these reforms are mandatory, based on a historical reading or necessarily even the best ways to effectuate the writ as a safeguard for the sovereignty of We the People, nor do I think Professor Kamin himself has firmly concluded that abolishing most or all federal review of state convictions would violate the Suspension Clause, though I hope Professor Kamin will soon speak of that more himself.


Instead, I read Professor Kamin to be making a normative case for reform of habeas corpus to reflect its original purpose as a sovereignty safeguard. In this respect, he makes a powerful case for re-centering our statutory provisions for habeas corpus on a popular sovereignty model that these reforms can resurrect a writ that has become a waste of both federal and state resources and a false hope for the great majority of habeas petitioners. Thank you.

J. Joel Alicea (00:57:52):

Well, that was a very provocative ending to our panelists remarks, and I want to make sure then, Professor Kamin, that you have a chance to respond to both Judge Oldham and Professor McCleod’s comments on your paper before I get to my questions. I have several questions to ask you all. There’s a lot here to dive into, but I want to make sure that you have a chance to respond to some of these comments and potential criticisms of your work.

William M. M. Kamin (00:58:21):

Yeah. Well, first of all, thank you both so much, first of all, just for being here. It’s such a delight and an honor to share the stage with you both. But beyond that, thank you both for the fascinating, fascinating comments, which give me a lot of food for thought. I’ll try to respond to both of you in a single set of scattered thoughts. Right, I mean, I think the most fundamental question to tackle here is the one that a lot of Marah’s response focused on, which is does this English history really matter, given that a lot of what we’re working under now is not the Suspension Clause directly, but habeas statutes that might or might not be required by the Suspension Clause?


A quick aside there, I think for a really long time, the Horn Book understanding in American law was that the Suspension Clause doesn’t mandate any particular federal court habeas jurisdiction. Right? I mean, Chief Justice Marshall in Ex parte Bollman was pretty explicit about that.


There are parts of Boumediene that I think are well-grounded by Halliday’s research and in a different part of Boumediene that I don’t think is relying on any of the English stuff, certainly not Halliday’s version of the English stuff, and that I am a little more skeptical of, notwithstanding the fact that it might be quite helpful to my own argument, is this idea that maybe John Marshall’s dicta in Bollman was wrong, and that the Suspension Clause, either in perhaps the strong version of the Boumediene dicta would be that the Suspension Clause affirmatively created some measure of federal court habeas jurisdiction and the weaker version would at least seem to be that the Suspension Clause created a one-way ratchet, whereby Congress may giveth, but once it has done so, it can’t take away any federal court habeas jurisdiction that it’s previously granted without violating the Suspension Clause.


To be honest, I again, I’m pretty skeptical of that aspect of Boumediene, although, I mean, if that’s the meaning that we end up liquidating out of Boumediene, then I think that makes life easier for me to explain why English history would matter. But if we sort push that aside and assume that we’re still working on the Ex parte Bollman understanding of, I believe Eric Friedman calls it the Precatory Suspension Clause thesis, that the Suspension Clause is gently suggesting that it would be nice if the federal courts had some habeas jurisdiction, but really the problem that it’s speaking to is congressional suspensions of state court power as vested by the state’s own legislatures or state constitutions or whatever. In any event, if we’re operating on that, then why does the English history matter?


I mean, I think there are a lot of different historical moments, where we have to ask about what understanding reigned. The first is obviously the founding and I think there, you’re absolutely right, that you have a lot of statements both from the framers of the Suspension Clause and from delegates at state ratifying conventions, that do seem to take the libertarian view of the writ. But then there are others that take sort of more of a sovereigntist view.


But ultimately, I don’t think the tension between those views really ends up getting definitively resolved one way or the other at the founding. I think instead, the view that does command a consensus is that the Suspension Clause is an empty vessel and that its contents are whatever the English tradition might say it’s contents are and we might disagree about the best interpretation of the English tradition, but that tradition is fixed. Anyways, so I think that’s moment one.


I think that that critical moment is important and that we start this American tradition of saying, “Whenever our law, be it constitutional or statutory is talking about this thing called the writ of habeas corpus, we’re having to resort to the English tradition, rather than trying to define this thing anew and affirmatively impose any new conceptual overlay that might radically depart from that, that had developed throughout early modern England.” Then I think the next big moment, apart from the Judiciary Act of 1789, which is obviously very close in time to ratification of the Suspension Clause, is the 1867 Act, which of course is the first time that Congress is removing these limitations on the federal habeas jurisdiction that say it’s only available to prisoners who are being confined under collar of federal law by federal authorities.


There, I think what’s interesting, is that I think you can actually make a stronger case for the Sovereigntist conception of the writ with the 1867 Act, where you’re not just passively saying, “Well, they left the question undecided.” I mean, I think right there in the text of the 1867 Act, there are all these coercive features, where the recipients of habeas writs are subjected to really serious monetary penalties and in some cases imprisonment for refusing to make a return on the writ, for making a false return on the writ. I think that if anything, the 1867 Act is pretty affirmatively and full-throatedly bringing back this older English idea, that our concerns here are really as much about the sovereign bringing recalcitrant agents of sovereign power to heal as it is about just dealing with individual liberty in a vacuum of abstraction.


I think that that maybe leads nicely into what I would say in response to your question about the historical pedigree of this focus on systemic stuff, which I think there really is quite a lot of precedent for. I probably have not done a good enough job. In the current draft, which fortunately I have some time to revise in light of wonderful conversations like this. I think in the immediate aftermath of the 1867 Act, what we saw a lot of, was habeas class actions, which I think is by any account, a mechanism for shifting the focus of federal habeas review of state court convictions to a model that’s more focused on systemic violations than idiosyncratic one-off individualized violations.


The story of how habeas class actions fall out of fashion, is one that Eve Primus has told better than I could here, so I won’t delve too deeply into that. I do think that there’s more precedent for that kind of approach than we might realize today.


Now circling all the way back from post-War America to… Well, actually one more point I guess I should make on that, before I circle back Old England, which is that I think just as a sort of purely practical point, I think the current court has ever more frequently been repeating this line, where they voice a desire to return the writ to its historic office. To be clear, this is not in the context of Suspension Clause cases, but in the context of Section 2254 and Section 2241 cases.


On some level, I mean, maybe this is sort of too candid to say here on stage, but I’ll say it, I frankly do share some of your doubts about the methodological soundness of some of the moves that I make to say that, “No, no, no. The English history really should be driving the bus even when we’re talking about statutes.” To be clear, I don’t think those moves are off, but I have doubts.


But I think, again, as a purely practical matter, I sort of think that ship has sailed and that the current court has been pretty explicit in saying, ” To the extent that we’re looking for solutions here, that even if our view of historically driven interpretation doesn’t require us to look to the Old English history, we would prefer that whatever equitable pragmatic solutions we try and put forth are ones that are well-grounded and well-pedigreed in the English history.”


I think to the extent that that ship has sailed, what’s left, for those of us who don’t have an Article III Commission, is to just say, “All right. Got it. Those are sort of the marching orders from the courts,” and try, as you said at the end of your remarks, to think about using history to mine its wisdom for solutions to problems we have. Then just quickly to Judge Oldham’s point about the English history, I think I so appreciate the subtlety of your point, right, that it’s not a clean oppositional thing, where Liberty had no role in sort of the English conception of this. When I sent a draft to Paul Halliday, the…


… And when I sent a draft to Paul Halliday, the first thing that Paul said was, “Gosh, I like it, but I worry that it’s kind of Manichean in some places. Could you pull that back?” Yeah, I think you’re absolutely right that towards the 17th and 18th centuries, ideas about liberty do start to make their way into English habeas discourse.


I think there are two important limitations on what we can take from that though. I think one is that even as those ideas work their way into what English jurists are saying about habeas in a way that never would’ve been there in the 15th and 16th centuries, it’s more sedimentary than anything, right? Ideas about liberty are being layered atop ideas about sovereign prerogative theory, but there’s still always an understanding I think broadly speaking, throughout those latter centuries of the early modern period, that arguments that are going to prevail, at least at common law. And I take your point that statutory habeas is a little different, but that at least at common law, the libertarian arguments that are going to prevail are going to be ones that rely on a prerogative theory.


And I think it’s also important to point out that in those debates there are more radical reformers who you see who make the case that the claims of natural liberty lie outside and above the law, such that law could be made liberty’s subject rather than vice versa. And I think that the claims of those more radical reformers in the 17th and 18th centuries really don’t get any traction or make any headway. And those reformers who do gain more of a foothold are those who hew more to the idea that yes, liberty is relevant, but liberty might be served through the king’s laws, it never stands above the king’s laws. So anyways. So thank you both again.

J. Joel Alicea (01:15:00):

Well Judge, Professor McLeod, any responses, anything that you want to comment on before I jump in?

Marah Stith McLeod (01:15:07):

All my concerns are eliminated.

J. Joel Alicea (01:15:12):

Well, Judge, I wanted to pick up on the history that you related and where you stopped. You stopped with English practice, but I think it would actually be helpful for the audience of non-habeas geeks, as Will said, to think that there are such people to say a little bit more about how habeas changed in American history. You all have touched on this at different points to that now it’s very different than what it was in English practice as a pre-conviction vehicle and now, it’s almost exclusively post-conviction. How does that happen in the American context and do you see any potential implications that is going a little bit to what Professor McLeod was asking about of Professor Kamin’s proposal in this different context than what existed in English practice?

Andrew Oldham (01:16:10):

Yeah, so let me start with the first part of that. So how did we get from sort of a custodial pre-trial thing to what it is today, that’s mostly post-trial, that we call habeas, that as Professor McLeod points out may or may not have anything to do really with the sort old common law ’cause so much of it is statutory. So when I was clerking, which was admittedly 150 years ago or whatever, it was a long time ago, but the Supreme Court of the United States had said, and Professor Hart had said and Duker had said, and everyone… My understanding of it was that the general consensus was this big shift happens in 1953. None other than Lee Kovarsky in the habeas course book, the foundation press course book, Kovarsky says that’s the big bang in habeas corpus, that was his phrase. And so at least if you go back to the Paleozoic era when I was clerking, that was the general consensus was that there was a big change in 1953 in Brown v. Allen.


The Supreme Court said that in writ, the Supreme Court said that was the thing in Stone v. Powell, I’m sorry, the Supreme Court said that was the big move in Wright v. West. And then Professor Hart had said that that was the big seismic shift in his Harvard law forward. So that’s what I understood the general rule to be. Now, if you read, Professor Kamin had referenced the debates that Justice Gorsuch and Justice Kagan are having, and I understand that now there’s a different sort of, maybe this is conceptual shift, maybe it’s a historical shift, maybe this is better research, I’m not sure, but Justice Kagan is taking the view that actually know that that’s not true, that there’s a bunch of these cases from the middle of the 19th century in America.


I’ve gone back and read those cases. I’m not sure I understand fully the contours of this debate. I’m certainly not an academic, but I’ll just say at least one of those, for example, ex parte Wells, which is a 1856 decision, which Justice Kagan points to as sort of one of the beginning pieces, she moves the locus from the 1950s to the 1850s, but I suppose that case is post-conviction in a sense. But the person was being held pursuant to the, he’d been convicted and then pardoned. So he had a capital sentence was pardoned and then was serving a life sentence as part of the pardon and then there was a bunch of custodial litigation there.


Far be it for me to disagree with Justice Kagan on how to read this case, I guess what I’m getting at is it seems different even then from what we’re talking about today, which is just straight up we are litigating notwithstanding normals or preclusion, notwithstanding the normal rules of res judicata or whatever. We’re going to adjudicate something full stop in state court all the way to final judgment, all the way to exhaust all of our appeals. And then we come into federal court and we do the whole thing all over again. That form of habeas or post-conviction or whatever you want to call that seems like it’s much more modern. So maybe 1953 is wrong, maybe Justice Kagan’s right, that it should go back a little bit further, but I’m not sure. I think the general consensus though is that wherever that data point is, it has to be somewhere between 1856 and 1953, but it certainly doesn’t go past, even in Justice Kagan’s view, before the middle of the 19th century. Maybe I should stop there before I get to the implications.

J. Joel Alicea (01:19:34):

Anything to add on this before… Well, Judge, I’d be curious to hear any implications you think that, and obviously, we know that your role is somewhat circumscribed by in terms of what you can-

Andrew Oldham (01:19:46):


J. Joel Alicea (01:19:48):

… But to the extent that you feel comfortable commenting at all on implications given the very different context of habeas now compared to the habeas practice that Will’s article is really focusing on, I’d be curious to hear what you have to say.

Andrew Oldham (01:20:01):

Yeah, so one of the biggest implications that I see, and this is something I agree with Professor McLeod on this very, very strongly, which is that, one of the things that Professor Kamin’s talking about in this article, which I commend him again for doing, is this is sort of the intractability of the modern habeas debate. It seems like everybody is talking past each other. It’s not completely clear what direction we’re trying to row this boat in. And I think part of the reason for that is because we are not necessarily doing the same things. We have different labels and different objectives and different things that we’re all doing in the name of habeas, that habeas has become this sort of thing, this big word that is a big umbrella that covers a lot of stuff and it doesn’t necessarily cover all in exactly the same way.


So if you have a case like Boumediene for example, or Boumediene however you pronounce the case, that’s not post-judgment, that is executive detention. You can understand why the court looks at Halliday and there’s this whole debate about sovereignty and how far the writ runs and extra-territoriality, right? That kind of habeas, whatever you want to think of, whether that’s based in English Law, American Law, the founding suspension clause, extra-territoriality principles, whatever that is, and the sort of mind-run state prisoner relitigating in federal court under 28, USC 2254, those are just different, right? They’re different. We use the same word to do both.


And I think one of the big implications and things that I’m wondering about from this article is when you see state prisoners in federal court doing habeas, whatever that’s supposed to mean, they’re winning and losing based on constitutional claims like ineffective assistance of counsel or discrimination in jury selection or due process, whatever the thing is. And because they satisfy or don’t satisfy a provision of statutory law passed by Congress, it really has nothing to do with whether they’re more like Nicholas Lowe or Darnell. And so it’s not common law, old general law, English Law in that sense. And so part of what I wonder about is how much are we supposed to be using all of that old stuff when we’re really talking about today, mostly statutory, the overwhelming majority of it, certainly hundred percent of the ones I’ve seen are statutory in the sense that they’re coming up under some provision of Title 28, not some provision of the King’s Bench in the English reports.

J. Joel Alicea (01:22:25):

Yeah, I actually think that part of the reason why so few professors actually teach habeas in Fed Courts, at least in my experience, maybe it’s more common than my experience is, but to your point where you were criticizing this earlier, I think it’s precisely because of how difficult it is to encapsulate all the different strands of doctrine that are really doing different things under the umbrella of habeas and teach in a way that students can understand and is accessible to them.


Professor McLeod, one quick question to you. Well, my question will be quick, you take as much time as you need to. Your scholarship tends to focus on, or I should say one strand of your scholarship is on capital sentencing, death penalty, and especially theoretical justifications for capital punishment. And from all of our experiences clerking, I’m sure we saw that a lot of death penalty litigation ends up implicating, intersecting with habeas, right? So I’m curious to know, when you read this article from your perspective as a scholar of capital punishment justifications, how do you think that this proposal that Professor Kamin is making might affect specifically the death penalty docket of federal courts, if it were adopted in the way that he’s proposing?

Marah Stith McLeod (01:23:53):

Yeah, thanks for that. And I found it interesting that in your article and in Halliday’s work, they mention an example where the Queen’s bench at the time Queen Mary would use the writ to secure the presence and then to trial of dozens of traitors who are subsequently scheduled for execution. So sort of quite the opposite of effectuating liberty was effectuating death. That is certainly not how habeas corpus works in capital cases today. So federal habeas corpus petitions are in fact a lifeline for prisoners who have been sentenced to death. I’ve represented several of them on death row in Alabama when I was at Sidley Austin. And even for those who do not end up getting habeas relief because of the duration of litigation, habeas cases extend their lives three, five, seven years, long, long time and that’s just federal habeas, right?


The leading study of federal district court habeas litigation, which was published back in 2007, led by Nancy King, who’s a professor, showed a massive contrast in the rates of habeas relief granted in capital cases versus non-capital ones. Capital habeas petitions were within that stunning period, and I have nothing to tell me that it’s significantly different now, were granted at 35 times higher rate than non-capital petitions. Indeed, they found that over 12% of the capital habeas petitions within the study were granted by district courts compared to less than 1% of the non-capital ones. And some of them were still pending and might also have been granted there because it took longer to process ones that ultimately were successful than that were rejected.


So for this reason, even some of the chief advocates of eliminating and paring back habeas corpus because of its dysfunctionality, want to carve out an exception for capital cases. And so one irony of the proposal to prioritize claims of systematic constitutional violations, which by necessity means deprioritizing one’s claiming individual violations, otherwise we’re not clearing our habeas docket, is that it will speed up many capital cases. It will reduce the time between sentencing and execution that is now devoted to extensive habeas litigation.


At least in my experience, many capital cases host idiosyncratic or unique types of violation, evidentiary violations, jury-right violations, counsel deficiencies. And while it’s true that the great majority of capital habeas petitions are claiming ineffective assistance of counsel, they’re doing so primarily because that is a necessary gateway to obtain review of otherwise procedurally defaulted claims, claims that the petitioner failed to raise and is later saying they failed to raise because of the ineffectiveness their attorney.


So to the extent that eliminating habeas of individual claims would prevent access to federal court review for a large number of capital petitioners, I think the effect is pretty serious. We now have, between sentencing and execution, it’s just over 20 years, and like I said, we’re talking about taking off a significant chunk of that. Now, I’m not saying that’s an unacceptable consequence. Indeed, many people have objected to the duration between sentencing and execution as something that impairs any rational purpose for the death penalty. So death penalty advocates might like that. And I’m not suggesting Professor Kamin likes that. I just think capital cases are not playing a big feature in the article, and I think they’re worth thinking through because their consequences may look so different.


Now, I think there’s one ready response Professor Kamin can give, which is that if we adopt the popular sovereignty model, we the people certainly would also have a special interest in seeing to it that there’s not an unjust or unconstitutional elimination of a member of the body politic. And so if that’s right, then it means, as so many scholars and courts have argued in the past, that we ought to be doing something exceptional for capital cases, presumably preserving them and not requiring them to present systematic constitutional violation claims. So that’s what I’d say, I think it is very interesting to think about capital cases.

J. Joel Alicea (01:28:16):

Well, we probably have time for maybe one question. Professor Scuteri in the back.

Professor Squitieri (01:28:24):

Well, fantastic panel. My question is for Professor Kamin, and I guess it turns on your answer to kind of two smaller questions. So the first is where, if anywhere, are the federal courts vested with the authority to invoke this? Is it through the judicial power with the idea that that encompasses the common law right? And then two, how much, if any, federal criminal law was there at the time of ratification because if the federal courts are vested via Article III and essentially all criminal law is state criminal law, then that would suggest that the entire purpose of the writ was for federal courts interact with state prisoners on the idea that sovereignty has been translated from the sovereign states to we the people.

William M. M. Kamin (01:29:14):

Yeah, great question. So let’s see. I just want to make sure I have the… So your second part was what, or sorry, first part was source of the vesting of habeas power and then second was what kind of criminal law are we dealing with at the founding? So yeah, the first part of your question, it’s funny actually. I’ve been having a really delightful e-mail exchange over the past couple of weeks with a gentleman who just retired from a very long career litigating habeas in the state AG’s office in a state that does a lot of habeas jurisdiction. And he asked that very question, which somewhat surprisingly is one that courts have, at least to my knowledge, I would be curious, Judge Oldham, if you’re aware of cases that I’m not, somewhat surprisingly, it seems like not many courts have really buckled down on this question of what vests Congress with power to vest 1867 Act type jurisdiction in the federal courts specifically.


There’s a third circuit case from 1954 that, in part, seems to suggest that that authority comes from Section 5 of the 14th amendment. I think that theory runs into two problems. One is the city of Boerne congruence and proportionality problem. The other is the timing problem, namely that the 14th Amendment was not ratified until after 1867, which seems like a pretty serious problem for the idea that it was what authorized the 1867 Act. I guess, in my view, it seems to me, as you alluded to in your question, that certainly the judicial power of the United States, to the extent that it extends to cases arising under the Constitution, laws, treaties of the United States, all of the federal habeas statutes closely mirror that language and they provide lower federal court jurisdiction to entertain petitions for the writ and issue the writ when it’s alleged that someone’s being held in custody in violation of the Constitution, laws or treaty of the United States.


So I would tend to think Article III, just good old-fashioned Section 2, Clause 1 is a better answer to that question than trying to do some sort of weird retroactive 14th Amendment, Section 5 thing.

J. Joel Alicea (01:32:49):

First, since we’re actually a little over time, if you wouldn’t mind just addressing the other question very briefly about the source of criminal law at the founding.

William M. M. Kamin (01:32:59):

Yeah, I think you’re absolutely right on the one hand that there was much less federal criminal law at the founding than there is now, thousands or tens of thousands times less. I also don’t know, I like your thought, and once again, it’s a thought that would make life a lot easier for me if I could point to that as evidence of the intent of the suspension clause being to create this interaction between federal habeas courts and state courts of conviction. But again, I suppose the issue there is that since we don’t end up having any Congress confer the type of jurisdiction for federal courts to review state convictions until 1867, I think I have good answers to this problem, which I won’t get into now, but I will readily concede that I would have a problem with running into about 70 years’ worth of liquidated meaning seeming to cut against some of my thoughts on this. So, thank you.

J. Joel Alicea (01:34:27):

Well, I can tell you that this conversation shed much more light on the topic of habeas than is typical of conversations of habeas. So please join me in thanking our panelists.

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