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The Power of Habeas Corpus in America
From the King's Prerogative to the War on Terror

$129.00 (C)

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  • Date Published: April 2013
  • availability: Available
  • format: Hardback
  • isbn: 9781107036437

$ 129.00 (C)

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About the Authors
  • Despite its mystique as the greatest Anglo-American legal protection, habeas corpus's history features opportunistic power plays, political hypocrisy, ad hoc jurisprudence, and many failures in effectively securing individual liberty. The Power of Habeas Corpus in America tells the story of the writ from medieval England to modern America, crediting the rocky history to the writ's very nature as a government power. The book weighs in on habeas's historical controversies – addressing its origins, the relationship between king and parliament, the U.S. Constitution's Suspension Clause, the writ's role in the power struggle between the federal government and the states, and the proper scope of federal habeas for state prisoners and for wartime detainees from the Civil War and World War II to the War on Terror. The concluding chapters stress the importance of liberty and detention policy in making the writ more than a tool of power. Taken as a whole, the book presents a more nuanced and critical view of the writ's history, showing the dark side of this most revered judicial power.

    • Presents a comprehensive assessment of American habeas corpus from colonial times to 2012, from the rise of habeas in England up until the founding of the United States
    • Discusses habeas' rocky history which has been described by other historians, but never all under a unified thesis concerning liberty vs. power
    • Presents neither liberal nor conservative views but a more nuanced view
    Read more


    • Winner of the 2013 PROSE Award for the Best Book in Law and Legal Studies

    Reviews & endorsements

    From the Foreword:
    "Ask any American what his most important right is, and he is apt to mention the freedom of speech, the freedom of the press, or the freedom of religion … Very rare is the person who would respond by saying, 'The right not to be arrested and jailed arbitrarily', let alone mention the judicial writ that protects that right: the writ of habeas corpus. Lawyers know it as 'the Great Writ', and the myth holds that its availability from time immemorial is the chief reason that Anglophones have long been free. Anthony Gregory here does the estimable service of showing that the Great Writ was not always what we now understand it to be. He also lays out in excruciating, nay shocking, detail the 150-year trend, accelerating in our day, of reducing the Writ’s importance."
    Kevin R. C. Gutzman, Western Connecticut State University, and author of James Madison and the Making of America

    "In his insightful and timely account of habeas corpus, Anthony Gregory illuminates not only the promise, but also the limitations of what for centuries has been known as the 'Great Writ'. His treatment of this important subject is both eloquent and persuasive, enhancing our understanding of the relationship between law, power, and human liberty."
    Jonathan Hafetz, Seton Hall University School of Law, and author of Habeas Corpus After 9/11: Confronting America’s New Global Detention System

    "Habeas corpus is arguably the most important tool for peacefully repelling tyranny and effectively holding the government accountable for its interferences with personal freedom. It can reduce the government from a gang of armed thugs on its chosen turf to a gaggle of supplicant litigants in a neutral forum. In The Power of Habeas Corpus in America, Anthony Gregory reduces 400 years of Anglo-American legal and political history to a readable, thorough, compelling study of this natural and constitutional right. This book is so well researched and written, it will soon become the bible on all things habeas corpus for generations."
    Hon. Andrew P. Napolitano, senior judicial analyst, and author of Theodore and Woodrow: How Two American Presidents Destroyed Constitutional Freedom

    "Especially now, as individual rights are increasingly trampled with impunity by the state, Anthony Gregory’s combination of engaging historical narrative with astute legal analysis and impassioned moral advocacy provides an overview of issues surrounding the Great Writ that is simply invaluable."
    Gary Chartier, La Sierra University, and author of Anarchy and Legal Order: Law and Politics for a Stateless Society

    "… a "must-have" for judicial and legal studies shelves, worthy of the highest recommendation especially for college and university libraries."
    James A. Cox, Midwest Book Review

    "Gregory emphasizes paradoxes: how a writ designed to serve liberty began as a governmental power; how a writ initially designed for individuals accused of crime is primarily sought by those who have been convicted; and how a mechanism originally used by states to question federal detentions is now almost exclusively a federal preserve … Summing up: recommended. Upper-division undergraduate, graduate, research, and professional collections."
    J. R. Vile, Choice

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    Product details

    • Date Published: April 2013
    • format: Hardback
    • isbn: 9781107036437
    • length: 434 pages
    • dimensions: 229 x 152 x 24 mm
    • weight: 0.66kg
    • contains: 1 table
    • availability: Available
  • Table of Contents

    Part I. A History of Power Struggles:
    1. Common law, royal courts
    2. Parliament and the king
    3. Americanization
    4. Constitutional counterrevolution
    5. Fugitive slaves and liberty laws
    6. Suspension and civil war
    7. The writ reconstructed
    8. Lynch mob justice
    9. The writ in world war
    10. Federal activism and retreat
    Part II. Executive Detention in Post-9/11 America:
    11. Ad hoc detentions
    12. Bush's prerogative
    13. The dance of the court and the executive
    14. Obama's legal black hole
    Part III. Custody and Liberty:
    15. The great writ's paradox of power and liberty
    16. A remedy in search of a principle
    17. The modern detention state and the future of the writ.

  • Author

    Anthony Gregory, The Independent Institute, Oakland
    Anthony Gregory is a Research Fellow for The Independent Institute. His articles have appeared in the Independent Review and the Journal of Libertarian Studies, and have been translated into multiple languages, reprinted in textbooks, and used in college courses on law and political science.


    • Winner of the 2013 PROSE Award for the Best Book in Law and Legal Studies
    • Winner of the 2014 Silver Medal for Political/Legal/Economic/Media, Independent Publisher Book Awards

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