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April 7, 2024
"The Great Writ of Popular Sovereignty"
The title of this post is the title of this article authored by William M. M. Kamin now available via SSRN. Here is its abstract:
American habeas corpus, long conventionally known as the Great Writ of Liberty (“GWL”), is more properly understood as the Great Writ of Popular Sovereignty (“GWPS”). That is: a tool for We the People to insist that when our agents in government exercise our delegated penal powers, they remain faithful to our sovereign will. Once we grasp this conceptual shift, the implications for the law of habeas are profound.
In the past fifteen years, novel archival research has shown the GWL’s founding myth to be ahistorical -- that ideas about sovereignty, rather than individual liberty, drove the common-law writ’s development in the centuries of English history running up to its reception into American law. Given widespread consensus that (1) English history should and does drive American habeas jurisprudence and (2) the sovereigntist account of that history should now be treated as authoritative, it is puzzling that American courts and scholars have continued to cling to the GWL mythos. Meanwhile, American habeas law is in crisis, with an ideologically cross-cutting array of scholars and jurists criticizing it as intellectually incoherent, practically ineffectual, and extravagantly wasteful. Over the Supreme Court’s past three Terms, Justice Neil Gorsuch has led a charge to hollow out federal postconviction habeas almost entirely, arguing that habeas courts should ask only whether the sentencing court was one of general criminal jurisdiction -- and not whether it violated federal constitutional law en route to entering the petitioner’s judgment of conviction.
An accurate understanding of the English history, soundly translated into the logic of American popular sovereignty, demands reconceptualizing the American writ as GWPS. By following that imperative, we just might save American habeas jurisprudence from its present crisis. Most critically, a theory of GWPS would illuminate the flaws in Justice Gorsuch’s historical argument for gutting postconviction habeas. Paradoxically, shifting from the conceptual lens of GWL to that of GWPS would yield habeas doctrine more effective in protecting individual liberty. Finally, such a shift would bring coherence to otherwise-inscrutable questions in the theory and doctrine of American habeas.
April 7, 2024 at 11:51 PM | Permalink
Comments
ICYMI:
https://jonathanturley.org/2024/04/08/are-you-kidding-me-federal-judge-rebukes-doj-on-its-own-refusal-to-comply-with-house-subpoenas-in-light-of-recent-prosecutions/#comment-2387102
Posted by: federalist | Apr 8, 2024 9:16:02 AM
https://jonathanturley.org/2024/04/07/plainly-erred-judge-reggie-walton-rebuked-by-d-c-circuit-in-j6-case/
Reggie Walton, dumb-ass.
Posted by: federalist | Apr 8, 2024 10:42:31 AM
Having written on popular sovereignty and criminal procedure as well as having done my own research on the history of habeas corpus, I don't see how putting a popular sovereignty gloss on habeas changes the basic fact that 2254 and 2255 aren't the great writ.
Posted by: tmm | Apr 8, 2024 12:50:34 PM
tmm --
Plus I doubt that the author has thought seriously about whether popular sovereignty is going to affect the criminal justice system in the way he seems to think. The academic Left believes that some form or another of populism will produce a more lenient system. Of course we've known for years what it actually produces -- vigilantism.
Posted by: Bill Otis | Apr 8, 2024 1:36:11 PM
As I noted Bill, I did a law review article on popular sovereignty and the criminal justice system back when I was a young attorney (and would probably have a more skeptical take if I were writing it today). But my big takeaway at the time was that a popular sovereignty view on criminal procedure would largely focus on double jeopardy (that the concept of dual sovereignty was contrary to popular sovereignty) and how to beef up the jury (restrictions on challenges for cause and peremptory strikes). I don't see how popular sovereignty supports giving more power to judges to disrupt the decisions of jurors.
Posted by: tmm | Apr 8, 2024 3:28:48 PM
tmm --
Yup. Juries would run wild. If people think the system is punitive now......................
P.S. I never went out for law review. You must have been a serious a student; I was anything but. I went to Stanford, not out of any great intellectual spasm, but because the weather in that part of the Bay Area is great. You can play volleyball outside in January. At Harvard and Yale, they're freezing their tails off.
Posted by: Bill Otis | Apr 8, 2024 4:08:13 PM
TMM - "Having written on popular sovereignty and criminal procedure as well as having done my own research on the history of habeas corpus, I don't see how putting a popular sovereignty gloss on habeas changes the basic fact that 2254 and 2255 aren't the great writ."
Not only that, but the Great Writ (and 2254 and 2255) were never intended to allow federal courts to review routine claims of trial error. It was a jurisdiction testing mechanism. Now it's yet another procedural wrench in the criminal justice engine.
Posted by: Da Man | Apr 9, 2024 2:58:27 PM