Incorporating the Suspension Clause: Is There a Constitutional Right to Federal Habeas Corpus For State Prisoners?

In the early 1960s, the Supreme Court adopted generous standards governing federal habeas petitions by state prisoners. At that time, the Court suggested, rather surprisingly, that its solicitude toward such petitions might be constitutionally mandated by the Suspension Clause, the only provision in the Constitution that explicitly refers to the "Writ of Habeas Corpus." Now, thirty years later, the Court has essentially overruled those expansive rulings, and Congress has considered, though not yet enacted, further limitations on the availability of the writ. Despite these significant assaults on the habeas forum, the constitutional argument appears to have been entirely abandoned. The liberal minority on the Court has not mentioned the Suspension Clause in over a decade, and legislative as well as academic supporters of habeas have scarcely alluded to the Constitution as a bulwark against the writ's further demise.

The question, then, is whether the constitutional claim that surfaced briefly to support the writ's unparalleled expansion during the 1960s is as much of an embarrassment as its total disappearance would suggest. I will argue that the claim is far from an embarrassment and, indeed, draws support from a variety of familiar forms of constitutional argument, including history, text, doctrine, and structure. Before elaborating the affirmative case, though, I will set forth the "doubts" that most likely account for the absence of any sustained effort to defend a constitutional right to federal habeas for state prisoners.