(Page 5 of 53) - Habeas Corpus and the History of the Warren Court authored by Wert, Justin.

simultaneous changes in habeas.

It is also important because the changes produced by the Warren Court

were slowly undone in large ways by subsequent courts because of doctrinal difference concerning the

role and scope of habeas. The reaction of subsequent courts, while partly explainable by their

conservative postures towards “law and order” issues, is also explainable by their critique of the Warren

Court’s use of history (read their historiography) in creating change in habeas. In fact, in one of the last

cases decided by the Warren Court, Kauffman v. U.S., which upheld the large-scale federally-enforced

habeas jurisprudence linked to the court’s incorporationist agenda, Justice Hugo Black issued a caustic

dissenting opinion cautioning the court about using habeas in Fourth Amendment exclusionary cases to

free patently (and admittedly) guilty criminals.

Black, who was arguably the most vocal and historically-

minded (though not always the most historically- accurate) champion of “total incorporation” of the Bill

of Rights, felt that the court’s linking of habeas’ supposed historical use to vindicate “constitutional

rights” was only of recent origins in this case (recent here meaning the 1961 decision in Mapp v. Ohio

Even for Black, then, the Warren Court’s use of history was problematic and had the potential to

undermine their habeas jurisprudence which he supported more generally.

Habeas is also important for another reason. As its etymology suggests, the writ of habeas

corpus cum causa – “have the body with cause” – seemingly implicates an anonymous and individual

equality before the law. However, changing notions of race and federalism nevertheless do shape its

access, application, and development. The allocation of political and legal power over individuals by

institutions in American constitutionalism aspires to equality by the very fact that equalizing commands

by virtue of the fact that constitutional power is written and therefore limited. It is also limited in the

further sense that power is allocated among national institutions and between these institutions and the

Robert Cover, “Dialectical Federalism: Habeas Corpus and the Court,” 86 Yale Law Journal 1035 (1976-1977)

Kaufman v. United States 394 US 217

367 US 643 (1961)

Kaufman v. United States, 235-236

For example: privileges and immunities clause; prohibitions of ex post facto laws and bills of attainder; habeas

corpus; and the first eight amendments of the Bill of Rights;