Alabama Law Review
In recent times, both the Court and Congress (in the Anti-Terrorism and Effective Death Penalty Act of 1996, known as AEDPA) have placed increasingly severe restrictions on the ability of state prisoners to challenge the constitutionality of their convictions by bringing federal habeas corpus proceedings. At some point, these developments risk offending the Suspension Clause of the Constitution, which provides: "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."
In considering the scope of the Suspension Clause, the Court and scholars alike have unanimously proceeded on the assumption that the Clause did not originally cover state prisoners seeking a federal writ of habeas corpus. The basis of this assumption is that, according to language in Ex Parte Bollman, 8 U.S. (4 Cranch) 75 (1807), an opinion Chief Justice John Marshall delivered in the course of releasing several of Aaron Burr's co-conspirators, Section 14 of the Judiciary Act of 1789 did not give federal courts the authority to grant the writ to state prisoners; hence, it was unavailable to those prisoners. Since the Act is a cornerstone of American jurisprudence (and the idea that it might violate the Suspension Clause has thus been deemed most implausible), acceptance of Marshall's interpretation has served as conclusive evidence for the proposition that the right of state prisoners to obtain federal habeas corpus was not originally protected by the Constitution.
But, I argue, Marshall's interpretation of the Act was wrong, and so is any interpretation of the Suspension Clause based upon it. Since the Constitution came into force, the federal courts have had the authority to free state prisoners on habeas corpus, and the Suspension Clause applies as a matter of original intent to any attempt by Congress to limit that authority.
To prove that Marshall's politically convenient dicta in Bollman, and thus the implications that have been drawn from them, were simply incorrect, I draw on original sources to show that:
- sensibly read, Section 14 is a grant of authority to the federal courts to grant writs of habeas corpus to state prisoners;
- in any event, no statutory authorization was required, since the federal courts could use the powers granted to them by common law and state law to issue such writs;
- but if Marshall was correct in rejecting both of those positions, then the statute was indeed unconstitutional under the Suspension Clause.
Perhaps because contemporaries recognized how weak Bollman was, in several cases - previously unpublished - federal courts simply ignored it, and did issue writs of habeas corpus to state prisoners.
Eric M. Freedman,
Just Because John Marshall Said it, Doesn't Make it So: Ex Parte Bollman and the Illusory Prohibition on the Federal Writ of Habeas Corpus for State Prisoners in the Judiciary Act of 1789, 51 Ala. L. Rev. 531
Available at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship/53