For most Americans, habeas corpus is the cornerstone of our legal
system: the principal constitutional check on arbitrary government
power, allowing an arrested person to challenge the legality of his
detention. In a study that could not be more timely, Justin Wert
reexamines this essential individual right and shows that habeas
corpus is not necessarily the check that we've assumed. Habeas
corpus, it emerges, is as much a tool of politics as it is of law.
In this first study of habeas corpus in an American political
context, Wert shifts our collective emphasis from the judicial to
the political-toward the changes in the writ influenced by
Congress, the president, political parties, state governments,
legal academics, and even interest groups. By doing so, he reveals
how political regimes have used habeas corpus both to undo the
legacies of their predecessors and to establish and enforce their
own vision of constitutional governance.
Tracing the history of the writ from the Founding to Hamdi v.
Rumsfeld and Boumediene v. Bush, Wert illuminates crucial
developmental moments in its evolution. He demonstrates that during
the antebellum period, Reconstruction, Gilded Age, Great Society,
and the ongoing war on terrorism, habeas corpus has waxed and waned
in harmony with the interests of majoritarian politics. Along the
way, Wert identifies and explains the political context of fine
points of law that many political scientists and historians may not
be aware of-such as the exhaustion rule requiring that a federal
habeas participant must first exhaust all possible claims for
relief in state court, a maneuver by which the post-Reconstruction
Court abandoned supervision of race relations in the South.
Especially in light of the new scrutiny of habeas corpus
prompted by the Guantnamo detainees, Wert's book is essential for
broadening our understanding of how law and politics continue to
intersect after 9/11. Brimming with fresh insights into
constitutional development and regime theory, it shows that the
Great Writ of Liberty may not be so great as we have
supposed--because while it has the potential to enforce conceptions
of rights that are consistent with the best ideals of American
politics, it also has the potential to enforce its worst aspects as
well.
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