What is Habeas?

The debate about post-conviction habeas for state prisoners is long-running, heated, and conceptually hazy. A majority of the Court is dissatisfied with the broad swath of constitutional errors that can currently give rise to habeas relief. The way the Court sees it, a broad writ is inefficient, untraditional, and bad for federalism. The consensus among scholars is that habeas should be at least as broad as it currently is: a broad writ is just, historically pedigreed, and good for constitutionalism. But is this debate about unwritten law or about statutory law? It is impossible to have a coherent argument without answering that question. Yet the question has gone unasked for decades. Some scholars and jurists (of both narrow- and broad-writ persuasions) frame things in common law terms. Others emphasize statutes but go on to treat those statutes more like vehicles for judge-made law than as binding commands. This article argues that the issue is one of statutory law, and it offers the first thoroughgoing analysis of the relevant texts. When Congress extended federal habeas to state prisoners in 1867, it gave courts no power to discharge validly convicted prisoners. But by reenacting the same text in 1948, Congress may have ratified the Court’s then-existing interpretations of the 1867 Act. The result, if so, might be a middle-ground position—narrower habeas than petitioners would hope for, but broader habeas than the Court seems to want. In any event, and specific outcomes aside, a focus on statutory law offers new clarity to the habeas discourse.