Habeas Corpus Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

Originating in England at least eight hundred years ago, habeas corpus is an ancient common-law concept strongly connected to the Magna Carta. The name denotes a court order that commands those holding another in custody to produce that individual before the court, so that the court can assess the legality of the detention. A judge or court frequently petition for a writ on behalf of someone in police custody to either force the authorities to charge the detained person with a crime, or to release the person from custody. Habeas corpus is considered a fundamental safeguard of liberty and by using this writ, an independent judiciary works to reinforce due process of individuals’ legal protection, and intervene when states improperly detain individuals. Typically referred to as the great writ, this remedy exists predominately in countries springing from the Anglo-American legal tradition, but other countries with alternative legal systems have also implemented parallel protections recognizing this foundational limit on governmental power. In political systems in which personal liberty is highly valued, habeas corpus, or something similar to it, exists.

By the time of the American Revolutionary War (1776– 1783), the right to habeas corpus had become a fundamental protection of individual liberty in the British colonies of North America. Upon independence, the new nation included it in the U.S. Constitution. Article I, Section 9, declares that “the Privilege of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” In this American context, the writ of habeas corpus demonstrates two distinct historical trajectories: the first deals with testing military authority over civilians during times of war; the second involves using the writ as a source for indefinite review of both state and federal criminal convictions.

With the first trajectory, suspending the right to habeas corpus essentially permits the military or other government agents to incarcerate, without judicial intervention, any person considered to be a threat. The inevitable questions arise here: Who possesses the constitutional authority to suspend this writ? Is it the president or Congress or some combination thereof? This issue came into sharp focus during the American Civil War when President Abraham Lincoln issued an 1861 executive order granting Union military commanders the power to suspend the writ as deemed appropriate. The U.S. Supreme Court weighed in on this controversy in the case of Ex Parte Merryman (1861) and Chief Justice Roger Taney declared that only Congress holds this suspension authority, not the executive. Lincoln disregarded this judicial enunciation, and in 1863, at Lincoln’s request, Congress subsequently authorized the suspension of habeas corpus for the remainder of the war. The majority of modern scholarly opinion concludes that such a suspension necessitates approval by Congress—this constitutional question remains particularly contentious in light of President George W. Bush’s response to the September 11, 2001, attacks on the United States. The Bush administration’s unwillingness to allow habeas corpus for suspects (both foreign and domestic) held in federal custody generated several important Supreme Court decisions, as seen in Hamdi v. Rumsfeld (2004), Rasul v. Bush (2004), Hamdan v. Rumsfeld (2006), and Boumediene v. Bush (2008).

The second trajectory traces to 1867, when Congress statutorily broadened habeas corpus to bestow federal courts the authority to release anyone from custody who had been detained in violation of the Constitution or laws of the United States, even if the detention could be considered justifiable under state law. This 1867 statute is the mechanism by which both state and federal prisoners convicted for criminal offenses can request federal habeas corpus review. In the 1960s, with the Supreme Court’s expansive views on the constitutional rights of criminal defendants, prisoners challenging their convictions filed a multitude of habeas corpus petitions. In these matters, federal judges issue the writ primarily on the court’s lack of jurisdiction where the conviction occurred or some violation of the petitioner’s constitutional rights during the legal proceedings that brought about the conviction. For instance, a writ may be issued following the use of inadmissible evidence obtained by an illegal search and seizure, or police’s failure to inform the accused of Miranda rights, thus violating the privilege against self-incrimination.

Outside of the American context, a variety of other countries safeguard habeas corpus or something similar to it. Such protections from arbitrary and illegitimate government action commonly characterize liberal democracies. Habeas corpus persists in the constitutions or statutes of countries that directly experienced the English system of common law as British Crown colonies—including Canada, Australia, New Zealand, India, and Malaysia. Habeas corpus is also visible in nations that were never part of the British Empire, but find such a potential bulwark against government misbehavior important—including Spain, Poland, Portugal, and the Philippines.

Habeas corpus may also be invoked in circumstances outside the arena of criminal prosecutions—for example, child custody cases, drug addicts seeking release from confinement for the treatment of their addiction, detention pursuant to health quarantines, and the status and deportation of aliens.

Bibliography:

Berman, Larry, and Bruce Allen Murphy. Approaching Democracy. 6th ed. Upper Saddle River, N.J.: Prentice Hall, 2009.
Chemerinsky, Erwin. Constitutional Law: Principles and Policies. 3rd ed. New York: Aspen, 2006.
Davis, Sue, and J.W. Peltason. Corwin & Peltason’s Understanding the Constitution. 16th ed. Boston:Wadsworth, 2004.
Ducat, Craig R. Constitutional Interpretation. 9th ed. Boston:Wadsworth, 2009.
Epstein, Lee, and Thomas G.Walker. Constitutional Law for a Changing America: Institutional Powers and Constraints. 6th ed.Washington D.C.: CQ Press, 2007.
Janda, Kenneth, Jeffrey M. Berry, and Jerry Goldman. The Challenge of Democracy: Government in America. 9th ed. Boston: Houghton Mifflin, 2008.
Melone, Albert P., and Allan Karnes. The American Legal System: Foundations, Process, and Norms. Los Angeles: Roxbury, 2003.
O’Brien, David M. Constitutional Law and Politics: Struggles for Power and Accountability.Vol. 1. New York:W.W. Norton, 2005.

This example Habeas Corpus Essay is published for educational and informational purposes only. If you need a custom essay or research paper on this topic please use our writing services. EssayEmpire.com offers reliable custom essay writing services that can help you to receive high grades and impress your professors with the quality of each essay or research paper you hand in.