Legal History in the High Court–Habeas Corpus

Ever since Chief Justice Marshall declared that courts could resort to the common law to determine what Congress meant by the term “habeas corpus” in a federal statute, the history of this venerable remedy has played an important role in the Supreme Court. Over the years, however, courts have moved away from using the writ of habeas corpus for its historic functions of eliciting the cause of commitment and compelling adherence to prescribed procedures in advance of trial until today it has become primarily a means by which one court of general jurisdiction exercises post-conviction review over the judgment of another court of like authority. Despite this significant change in function, the United States Supreme Court has continued to support its decisions on questions of post-conviction review by calling upon the history of habeas corpus during that period when it was predominantly a pretrial remedy. Whatever view one may adopt as to the wisdom of these decisions, the results of the Court’s “magisterial historiography” have not been happy for history. Three decisions of the October Term, 1962, provide prime examples.