Book Review: CARY FEDERMAN, The Body and the State: Habeas Corpus and American Jurisprudence. Albany: State University of New York Press, 2006, 242 pp., ISBN 0791467031, $65 (hbk)
| Date | 01 September 2008 |
| Published date | 01 September 2008 |
| DOI | 10.1177/09646639080170030705 |
| Subject Matter | Articles |
CARY FEDERMAN, The Body and the State: Habeas Corpus and American Jurispru-
dence. Albany: State University of New York Press, 2006, 242 pp., ISBN 0791467031,
$65 (hbk).
There is much lamentation over the corpus of habeas corpus. Popular and scholarly
writers have long been gathering in one or other pietà around ‘the great writ of liberty’
(p. 4). There is recurring wailing (in the United States especially) over its ‘confus[ion]’,
‘fall’ or imminent ‘extinction’ (pp. 83, 183). The Military Commissions Act of 2006,
and the Guantánamo-centred jurisprudence that precipitated it, have been at the
centre of the latest such frenzy of concern. Into the midst of this fray there emerged
Cary Federman’s book, The Body and the State: Habeas Corpus and American
Jurisprudence.
For those familiar with the particular history of habeas corpus in the United States
since the 18th century (as sketched in books by William F. Duker and Eric M.
Freedman and in countless law review articles), Federman’s book will sound some
recognizable notes. The writ that demands justification for an individual prisoner’s
detention remains, in Federman’s account, a vital ‘preservative of individual liberty’
(p. 167), the curtailment or conditioning of which is cause for alarm. An ever-present
threat to this writ and those who invoke it is posed, in Federman’s account, by the
state, whose true nature is revealed in ‘the depths to which the government is willing
to go to deny [prisoners’] right to speak’ (p. 190). Central protagonists in this drama
are courts and judges, above all those of the United States Supreme Court, whose
views and dispositions are invested with a high degree of determinative force: ‘Courts
decide meaning’ (p. 190). Similarly, the criminal law itself is imbued with appetites
that are more destructive than normalizing or governmental: ‘The Court’s narratives
of violence exist to buttress the law’s desire to execute criminals’ (p. 189).
Nevertheless, to those immersed in law review debates surrounding the writ’s status
and proper scope – historically and more recently in the context of the so-called
‘war on terror’ – there is much in Federman’s book that may be surprising, indeed
perplexing. Federman outlines the project of this book as tracing ‘the history of the
writ of habeas corpus and its influence on the development of federal–state relations
and capital punishment from 1789 to 2004’ (p. 1). Yet the book is overwhelmingly
focused on the statutory version of the writ of habeas corpus introduced in the United
States with the passage of the Habeas Corpus Act of 1867 and related Supreme Court
case law. Federman does not explore lower federal court jurisprudence in the United
States, nor does he examine state constitutional provisions guaranteeing the writ or
related state court jurisprudence. The book exhibits a similar lack of interest in Con-
gressional debates and executive policy-making surrounding habeas corpus, except
for limited treatment in the chapter on the ‘narratives of terrorism’ (pp. 158–63) and
some earlier, passing references (pp. 87–8).
Federman declines, as well, to relate much at all of the writ’s English common law
past, despite acknowledging that history’s ongoing significance in the United States
(pp. 105, 165). The book refrains too from any other comparative work. It excludes
from its purview, for instance, the writ’s propagation by US forces in the Philippines
and Japan in 1901 and 1948, respectively. But for incidental side-swipes, the book also
largely abstains from engagement with technical doctrinal debates in constitutional
law and criminal procedure (of which habeas corpus has long been a favourite fuel in
the United States) and with pragmatic enquiries concerned with petition numbers,
processing times and resource allocation.
Instead, the book concerns itself with the narrative properties of habeas corpus
jurisprudence in the United States Supreme Court, focusing on the ‘writ’s function
as speech’ (p. 167) and the Court’s ‘storytelling’ predilections (p. 69). In a series of
chronologically ordered chapters, Federman weaves the Supreme Court’s habeas
416 SOCIAL & LEGAL STUDIES 17(3)
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