In the Shadow of the Great Charter: Common Law Constitutionalism and the Magna Carta by Robert M Pallitto

Author:Robert M Pallitto [Pallitto, Robert M]
Language: eng
Format: epub
Tags: History & Theory, Constitutions, Political Science, American Government, General
ISBN: 9780700620913
Google: iNbFrQEACAAJ
Goodreads: 23583669
Publisher: University Press of Kansas
Published: 2015-01-15T10:05:59+00:00

Habeas Corpus in Fay v. Noia

The growth of the constitutional rights of criminal defendants during the Warren years extended even to cases that did not directly implicate the Bill of Rights. Fay v. Noia (1963)29 gave the Court another opportunity to strengthen the rights of criminal defendants, but this time in connection with habeas corpus rights. The Court’s ruling broadened the availability of habeas corpus relief in proceedings arising out of state court prosecutions. In Fay, three defendants had been convicted for their roles in a robbery/homicide, but two of them were later freed after showing that their confessions had been coerced. The third defendant, Noia, sought relief from conviction on the same grounds, but the lower court ruled that his failure to appeal the conviction in the past barred a subsequent habeas corpus petition. Justice Brennan wrote a majority opinion holding that Noia could seek relief via habeas corpus despite his failure to appeal. In reaching this result, Brennan had to address federalism concerns. Shouldn’t the state law procedural default be considered in construing the federal remedy? And didn’t federal courts defer to states in such instances as a matter of comity? Brennan answered both of these questions in the negative. “The jurisdiction of federal courts on habeas corpus,” he wrote, “is not affected by procedural defaults by the applicant during state court proceedings.”30 And comity had to be distinguished from power in the sense that the federal courts had the power to do what comity sometimes moved them to refrain from doing. In this case, comity considerations had to give way to the demands of justice.31

Brennan traced the origins of habeas corpus back through English history, making explicit reference to the Magna Carta. In doing so, he linked habeas corpus to the “law of the land” phraseology of the Magna Carta. Referencing a 1593 bill that was never enacted, he said, “The bill accurately prefigured the union of the right to due process drawn from Magna Charta and the remedy of habeas corpus accomplished in the next century [by the Habeas Corpus Act].”32 Connecting due process and habeas corpus to a common source in the Magna Carta is important in the development of common law constitutionalism because the “law of the land” reference in Article 39 can then be seen to generate support for habeas corpus as a remedy at the same time that it imposes procedural standards on state detention. As Brennan puts it, “It is of the historical essence of habeas corpus that it lies to test proceedings so fundamentally lawless that imprisonment pursuant to them is not merely erroneous but void.”33

Speaking of the “historical essence” of habeas corpus in this way evokes a sense that meanings of legal concepts develop over time and by means of tradition. The lineage and history of habeas corpus shape its meaning, for Brennan, in 1963: “At the time the privilege of the writ was written into the Federal Constitution it was settled that the writ lay to test any

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