With that understanding, I then consider the history and role of the Great Writ.
Since its inception in English common law, the writ of habeas corpus--the Great Writ of Liberty - has functioned, to varying degrees, (149) as the means by which an individual may challenge the legality of his detention.
When we assess the potential of the Great Writ, it would be a mistake to deem all of the procedural obstacles to review that now attend federal habeas to be immutable parts of habeas itself.
Habeas for the Twenty-First Century does a wonderful job both of exploring the recent history of the Great Writ in all of its forms and of using that history to develop an insightful interpretive approach to guide the writ's evolution.
But the Great Writ, aside from the vagaries and inconsistencies that have accompanied its practice and development--apart from the centralizing and hypocritical power that has often employed it for the centralizer's own advantage--has unmistakable significance for how we view ourselves as a society and for the types of principles we claim as defining our civilization.
For hundreds of years, scholars have argued on multiple sides about what the Great Writ has "always meant," what its limits "always were," and how its more technical elements should clearly be interpreted in light of real-world circumstances, statutes, and court decisions going back centuries.
Unlike the Great Writ, with its basis in separation of powers, the statutory writ of habeas corpus was all about federalism.
Criminal defendants who were deprived of their constitutional rights in state courts could not turn to the Great Writ for relief, because it was not available to a person who was detained under a facially valid criminal conviction.
While the Court has always paid homage to the Great Writ
, it can now fully recognize the common law writ's core value and purpose by declaring unconstitutional the judicial review provisions of the 1996 immigration acts, should they be construed to limit review solely to constitutional claims.
At common law and under the famous Habeas Corpus Act or 1679 the use of the Great Writ
against official restraints was simply to ensure that a person was not held without formal charges and that once charged he was either bailed or brought to trial within a specified time.
Dating back to the Magna Charta, the Great Writ
of Habeas Corpus has been recognized as one of the chief, if not the chief, safeguard in common law against the arbitrary imprisonment of citizens by a despot.