Document Type
Article
Publication Date
2025
Abstract
American habeas corpus, long conventionally known as the Great Writ of Liberty, is more properly understood as the Great Writ of Popular Sovereignty—a tool for We the People to insist that when our agents in government exercise our delegated penal powers, they remain faithful to our sovereign will. Once we grasp this conceptual shift, the implications for the law of habeas are profound.
In the past fifteen years, novel archival research has shown the Great Writ of Liberty’s founding myth to be ahistorical—that ideas about sovereignty, rather than individual liberty, drove the common-law writ’s development in the centuries of English history running up to its reception into American law. Given widespread consensus that English history should and does drive American habeas jurisprudence, and that the sovereigntist account of that history should now be treated as authoritative, it is puzzling that American courts and scholars have continued to cling to libertarian frameworks. Meanwhile, American habeas law is in crisis, with an ideologically cross-cutting array of scholars and jurists criticizing it as intellectually incoherent, practically ineffectual, and extravagantly wasteful. Over three of the Supreme Court’s past four Terms, Justice Neil Gorsuch has led a charge to hollow out federal postconviction habeas almost entirely, arguing that habeas courts should ask only whether the sentencing court was one of general criminal jurisdiction—and not whether it violated federal constitutional law en route to entering the petitioner’s judgment of conviction.
An accurate understanding of the English history, soundly translated into the logic of American popular sovereignty, demands reconceptualizing the American writ as a Great Writ of Popular Sovereignty. By following that imperative, we just might save American habeas jurisprudence from its present crisis. Most critically, the popular-sovereigntist theory allows us to make coherent sense of the historical question at the heart of Justices Gorsuch and Kagan’s recent debates over the fate of postconviction habeas review.
Paradoxically, shifting from a libertarian to a popular-sovereigntist conception of the writ might render habeas doctrine more capable of protecting individual liberty. Such a shift would point toward novel solutions to countless otherwise inscrutable questions in the theory and doctrine of American habeas.
Recommended Citation
William M. M. Kamin, The Great Writ of Popular Sovereignty, 77 Stan. L. Rev. 297 (2025).
