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Making Habeas WorkA Legal History$
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Eric M. Freedman

Print publication date: 2018

Print ISBN-13: 9781479870974

Published to NYU Press Scholarship Online: January 2019

DOI: 10.18574/nyu/9781479870974.001.0001

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(p.1) Introduction
Making Habeas Work

Eric M. Freedman

NYU Press

Government officials jail people they perceive as threats. But officials are imperfect and may inflict injustices. One solution is habeas corpus—a judicial order that requires government officials to produce a prisoner in court, persuade an independent judge of the correctness of their claimed factual and legal justifications for the individual’s imprisonment, or else release the captive. The writ is only part of an intricate contrivance that restrains power to enforce the rule of law. Habeas corpus was at first a component of the system of common law pleading, now largely vanished. That system embodied many legal restraints on power that have since been severely weakened. The writ today exists within a system of checks and balances, a post-Independence innovation whose effectiveness has increased over time. The overall contrivance is under considerable stress today, and this book suggests improvements. But the ultimate safeguard of the rule of law will be an American polity that has internalized the constitutional values embodied in the Suspension Clause and the Bill of Rights and acts accordingly.

Keywords:   Habeas corpus, Common law pleading, Common law, Checks and balances, Suspension Clause, Bill of Rights, Rule of law

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