| This dissertation analyzes the development of Habeas Corpus law in four time periods: ante-bellum slave law; Reconstruction; the twentieth century debates over the incorporation of the Bill of Rights to the states; and habeas corpus during war, particularly the current prosecution of the "War on Terror." If the "body," seemingly detached from ascriptive or citizenship-based qualifications, is the subject of the "Great Writ of Liberty," then the legal-political status of individual equality is revealed within habeas law. I argue that habeas corpus has always been inextricably linked to shifting notions of American citizenship and race, moving from state to national, and then again to state conceptions of citizenship linked with race, with the respect to meaningful access to the "Great Writ." The origins of this divide can be found in the enduring, yet shifting, conceptions of state versus national citizenship in the American state as well as changing conceptions of racial egalitarianism. The most important congressional changes to the scope of Habeas Corpus---which have informed our understanding of the writ ever since---came in the 1867 habeas Corpus Act, passed during Reconstruction. Although crafted within a post-bellum milieu of renewed conceptions of national power over states, this act was intended to protect freed slaves and their families only---not to serve as a post-trial or post-conviction mechanism for general criminal adjudication, which had always been a mostly sovereign state function. As the debates over the incorporation began in earnest in the first third of the twentieth century, and particularly as courts sought to redefine criminal law more generally, the scope of habeas was simultaneously enlarged to help affect this change. However, the courts new conception of national citizenship sought to trump the state conceptions of citizenship and its attendant rights and duties through incorporation with a legal vehicle that was shaped only to confer legal protection for freed slaves---not every individual convicted of a crime and held unconstitutionally by a state. We thus see during the remainder of the twentieth century a rise and fall of the scope and power of the Great Writ as we as a nation determine the proper conception of our rights and duties as citizens within a government shaped by federalism. |
