The Myth of the Great Writ

Authors

Leah M. Litman, University of Michigan Law SchoolFollow

Document Type

Article

Publication Date

12-2021

Abstract

Habeas corpus is known as the “Great Writ” because it supposedly protects individual liberty against government overreach and guards against wrongful detentions. This idea shapes habeas doctrine, federal courts theories, and habeas-reform proposals.

It is also incomplete. While the writ has sometimes protected individual liberty, it has also served as a vehicle for the legitimation of excesses of governmental power. A more complete picture of the writ emerges when one considers traditionally neglected areas of public law that are often treated as distinct—the law of slavery and freedom, Native American affairs, and immigration. There, habeas has empowered abusive exercises of government authority rather than just constraining them.

Accurate histories of the writ—and accurate stories about the writ—matter. The myth of habeas was one device that courts used to fold the writ into the legal apparatus of American colonialism and racial subordination. Dispelling that myth and developing a more complete picture of habeas can provide a new lens through which to evaluate habeas-reform proposals and avoid replicating the errors of the past. Understanding the complex and sometimes internally contradictory functions of habeas illuminates the dynamic relationship between judicial remedies and government power. And these usages of habeas show how law and legal processes, including celebrated instruments such as habeas, can and have become tools of racial subordination and colonialism. Accurate histories of the writ—and accurate stories about the writ—matter. The myth of habeas was one device that courts used to fold the writ into the legal apparatus of American colonialism and racial subordination. Dispelling that myth and developing a more complete picture of habeas can provide a new lens through which to evaluate habeas-reform proposals and avoid replicating the errors of the past. Understanding the complex and sometimes internally contradictory functions of habeas illuminates the dynamic relationship between judicial remedies and government power. And these usages of habeas show how law and legal processes, including celebrated instruments such as habeas, can and have become tools of racial subordination and colonialism.

Recommended Citation

Litman, Leah. "The Myth of The Great Writ." Texas Law Review 100, no. 2 (2021): 220-284.