Article

A Constitutional Theory of Habeas Power

Modern habeas corpus law generally favors an idiom of individual rights, but the Great Writ’s central feature is judicial power. Throughout the seventeenth-century English Civil Wars, the Glorious Revolution, and the war in the American colonies, the habeas writ was a means by which judges consolidated authority over the question of what counted as ‘lawful’ custody. Of course, the American Framers did not simply copy the English writ—they embedded it in a Constitutional system of separated powers and dual sovereignty. ‘A Constitutional Theory of Habeas Power’ is an inquiry into the newly-minted principle that the federal Constitution guarantees some quantum of habeas process.

I argue that Article III combines with the Suspension Clause to guarantee habeas process and to specify the exclusive conditions by which Congress may restrict it. My ‘Habeas Power Theory’ has two global principles: (1) that the constitution entitles all federal prisoners to some quantum of habeas (or substitute) process before an Article III judge; and (2) that, absent a formal suspension, the constitution does not permit Congress to restrict judicial power to determine what constitutes proof of lawful custody.

By cohering the new writ history, decisional law, and maxims of federal jurisdiction, I sketch a theory for how judges ought to use habeas to test different forms of federal power—for immigration, military, and criminal custody. ‘Habeas Power’ represents an entry in a new thread of habeas literature, growing out of the War-on-Terror litigation and focusing on what one might call the ‘core features’ of the writ. Methodologically, the Article embraces the renewed emphasis on pre-Revolutionary English writ practice and habeas suspension statutes. It is also the scholarship’s most extensive treatment of habeas jurisdiction as an Article III remedial power over federal custody. By formulating the habeas authority as a power of judges, I try to square an affirmative constitutional guarantee of habeas process with more established maxims of federal jurisdiction.

Constitutional Privileging

“Constitutional privileging” occurs when courts treat the constitutional status of a legal claim as a reason to afford it specialized procedural or remedial treatment—in effect providing to that claim a greater degree of judicial care and attention than its nonconstitutional counterparts receive. Though seldom scrutinized by courts and commentators, this practice occurs within a variety of doctrinal settings. For example, a stricter standard of harmless error review governs constitutional claims; district court findings of facts (and mixed findings) are subject to a stricter form of appellate review in constitutional cases; collateral relief from federal court judgments is more easily obtained in connection with constitutional claims; and so on. In these and other contexts, the Constitution counts as not just supreme law, which is lexically prior to nonconstitutional law, but also “preeminent law,” which deserves especially meticulous implementation and especially vigorous enforcement.

In this Article, I question both the conceptual soundness and practical desirability of constitutional privileging. I first propose and reject several theories of “intrinsic” constitutional preeminence, each of which identifies a distinctive (or seemingly distinctive) feature of the constitutional form as mandating the privileging of constitutional over nonconstitutional claims. I then outline an alternative, “extrinsic” defense of constitutional privileging, which characterizes the practice as a pragmatic response to the objective “importance” or “fundamentality” of many constitutional rules. Although this defense cannot be definitively rebutted, I suggest that it too is unpersuasive. I also draw attention to the problematic tendency of constitutional privileging to undermine the “passive virtues” of judicial decision-making, especially the familiar norm that calls for avoiding unnecessary adjudication of constitutional questions. Finally, I propose several doctrinal reforms, aimed at reducing courts’ reliance on the variable of constitutional status in the privileging of legal claims.

Originalism and the Other Desegregation Decision

Critics of originalist approaches to constitutional interpretation often focus on the “intolerable” results that originalism would purportedly require. Although originalists have disputed many such claims, one contention that they have been famously unable to answer satisfactorily is the claim that their theory is incapable of justifying the Supreme Court’s famous 1954 decision in Bolling v. Sharpe. Decided the same day as Brown v. Board of Education, Bolling is the case that is most closely associated with the Supreme Court’s so-called “reverse incorporation” doctrine, which interprets the Due Process Clause of the Fifth Amendment as if it effectively “incorporates” the Fourteenth Amendment’s Equal Protection Clause against the federal government. The presumed inability of originalism to justify Bolling and reverse incorporation has left originalists open to the charge that their theory would leave the federal government with unfettered discretion to discriminate against racial minorities or anyone else it chooses. 

This article challenges the conventional wisdom regarding Bolling’s assumed originalist indefensibility by recovering the original meaning of the Fourteenth Amendment’s Citizenship Clause, which declares all persons born or naturalized in the United States and subject to its jurisdiction to be citizens of the United States. Although sometimes viewed by modern commentators as an inconsequential “afterthought,” this article contends that the Citizenship Clause was widely perceived by members of the enacting generation as a central focus of the Fourteenth Amendment’s Section One and that the provision constitutionalized a longstanding American political and legal tradition linking the status of “citizenship” with the entitlement to Equal Treatment at the hands of government. Drawing on pre-Fourteenth Amendment understandings of “citizenship,” and the conceptions of citizenship reflected in the framing and ratification debates and in early interpretations of the Amendment, this article contends that the Citizenship Clause provides a historically and textually defensible basis for a legally enforceable equality guarantee applicable to federal conduct that is at least as broad as the equality guarantee made applicable to the states by the Equal Protection Clause.

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