Prisoners and Habeas Privileges Under the Fourteenth Amendment

The U.S. Reports contain no answer to a million-dollar question: are state prisoners constitutionally entitled to a federal habeas forum? The Supreme Court has consistently ducked the basic constitutional issue, and academic work on the question idles on familiar themes. The strongest existing argument that state prisoners are constitutionally entitled to a federal habeas forum involves a theory of incorporation under the Fourteenth Amendment's Due Process Clause. I provide a new and different account: specifically, that the Fourteenth Amendment's Privileges and Immunities Clause ("PI Clause") guarantees a habeas privilege as a feature of national citizenship, and that the corresponding habeas power reaches state custody.

We now know that the common-law habeas writ did not evolve primarily as a security for individual liberty, but in service of judicial power. In Boumediene v. Bush, the Supreme Court blessed this revised writ history.