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date: 01 October 2020

Abstract and Keywords

This chapter examines habeas corpus as an instrument of judicial authority and its role in developing an understanding of the U.S. Constitution with regard to basic aspects of liberty. More specifically, it considers the two axes along which the writ runs: a vertical axis, on which federal and state authorities interact; and a horizontal axis, where the three branches of the federal government intertwine. The chapter begins with a historical overview of habeas corpus in England and the British Empire, touching on topics such as the prerogative writ, the common law writ, and the impact of legislation on the writ. It then discusses the suspension clause of the Constitution, the writ’s potential to moderate among conflicting parts of the federal government, habeas corpus in relation to slavery, changes in habeas corpus after the Civil War, federal courts’ review of state trials, and legislative and judicial pursuit of finality.

Keywords: habeas corpus, Constitution, prerogative writ, sovereignty, suspension clause, John Marshall, slavery, finality, detention without trial, national security

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