William M. M. Kamin, Catholic University of America, Columbus School of Law, has posted The Great Writ of Popular Sovereignty, which is forthcoming in the Stanford Law Review:
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”): 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 immensely 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. And 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.
--Dan Ernst
