He applied the “Page 99 Test” to his new book, Habeas Corpus in America: The Politics of Individual Rights, and reported the following:Fortuitously, page 99 of my new book describes the most important changes to habeas corpus in American constitutional and political history, specifically the Habeas Corpus Act of 1867. Passed during the height of Reconstruction, the Act provided for the first time that those held for crimes on the state level could challenge the constitutionality of their detentions in federal courts. Before these changes, state defendants (including slaves) had virtually no opportunity to challenge unconstitutional actions by their states. Combined with the passage of the Fourteenth Amendment a year later, we see in 1867 the (slow) beginning of modern habeas corpus law.Learn more about Habeas Corpus in America at the publisher's website, and visit Justin J. Wert's faculty webpage.
Habeas Corpus in America: The Politics of Individual Rights accounts for the development of one of the most important – but least understood – components of American constitutional law. Scholars, legal practitioners, politicians, and citizens alike, hold deeply divergent views about the writ’s historical development and normative function. As a result, we still tend to ask very different questions – and therefore always produce very different answers – about habeas’ function in American constitutional law, theory, and history.
In the book I show how habeas has served as a potent tool of political regime change, enforcement, and dissolution in American politics. Often enough, the most significant changes to habeas corpus rarely come exclusively from the oracular pronouncements of judges. Instead, habeas changes are often initiated and led by a coalition of other institutions in American government, including congress, the president, political parties, state governments, legal academics and jurists, and even interest groups. These political regimes sought to undo the political and legal legacies of the past through strategic changes to habeas corpus in order to establish and then enforce their own vision of constitutional governance in the United States. These regimes certainly understood and took seriously the legal foundations of the writ, but more often than not they looked past existing legal precedents and constraints and, often with the aid of courts that were sympathetic to these regimes, fashioned habeas’ legal structure to reflect the new ideals of their regime’s governing principles. Habeas corpus thus serves as a vehicle through which political regimes attempt to re-order American governing institutions.
--Marshal Zeringue
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