The Constitutional Puzzle of Habeas Corpus
![handle is hein.journals/bclr46 and id is 263 raw text is: THE CONSTITUTIONAL PUZZLE OF
HABEAS CORPUS
EDWARD A. HARTNETT
Abstract: The U.S. Constitution has always protected habeas corpus. Yet
when we consider the Suspension Clause together with three other
constitutional principles, we find a constitutional puzzle. Pursuant to the
Madisonian Compromise, inferior federal courts are constitutionally
optional. Under Marbury v. Madison, Congress cannot expand the
Supreme Court's original jurisdiction beyond the bounds of Article III.
Pursuant to Tarble's Case, state courts cannot issue writs of habeas corpus
to determine the legality of federal custody. There would seem to be a
violation of the Suspension Clause, however, if neither the inferior
federal courts, the Supreme Court, nor the state courts could issue writs
of habeas corpus. This Article suggests that the apparent conflict among
these constitutional principles can be resolved by the power of individual
Justices of the Supreme Court to issue writs of habeas corpus.
INTRODUCTION
Even before the U.S. Constitution was amended to add the Bill of
Rights, it protected habeas corpus, insisting that the Privilege of the
Writ of Habeas Corpus shall not be suspended, unless when in Cases
of Rebellion or Invasion the public Safety may require it.' Yet when
we consider the Suspension Clause together with three other constitu-
tional principles, we find a constitutional puzzle. Pursuant to the
Madisonian Compromise, inferior federal courts are constitutionally
optional. Although the Constitution requires a Supreme Court, it
grants Congress the atthority to decide whether there shall be infe-
rior federal courts.2 In addition, under Marbury v. Madison, Congress
cannot expand the Supreme Court's original jurisdiction beyond the
* © 2005, Edward A. Hartnett, RichardJ. Hughes Professor for Constitutional and Public
Law and Service, Seton Hall University School of Law; e-mail: hartneed@shu.edu. Thanks to
Michael Collins, Richard Fallon, Eric FreedmanJohn Harrison, Daniel Meltzer, Trevor Mor-
rison, Gerald Neuman, and James Pfander for helpful comments on a prior draft.
1 U.S. CONST. art. I, § 9.
2 See U.S. CONsr. art. III, § 1 (stating that [t]hcjudicial power of the United States,
shall be vested in one supreme Court, and in such inferior Courts as the Congress may
from time to time ordain and establish).](ViewImageLocal?handle=hein.journals/bclr46&div=15&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
The Constitutional Puzzle of Habeas Corpus
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most