Habeas Corpus Protection of Parental Liberty

In early English common law, and in American common law up through the Reconstruction Era, the Writ of Habeas Corpus was viewed as a practical tool for enforcing the Parental Liberty Doctrine.

When the Framers provided in Article I, Section 9, that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it," they were referring to the Writ as it was defined by English common law. INS v. St. Cyr, 533 U.S. 289, 301 (2001)("at the absolute minimum, the Suspension Clause protects the writ 'as it existed in 1789'"). The Framers were well aware that England afforded a very broad Writ which applied in and beyond the realm of criminal proceedings. W. DUKER, A CONSTITUTIONAL HISTORY OF HABEAS CORPUS 115 (1980) ("the common-law writ of habeas corpus was in operation in all thirteen of the British colonies that rebelled in 1776"). The Writ permitted courts to directly intervene against improper removals, confinements, or custodial arrangements which affected a parent and child.

As a procedure which evolved from an accrued collection of case precedents and statutes, the Writ was a broad tool for relief and was available in a wide range of situations implicating confinement. St. Cyr,, 533 U.S. at 301. The Writ was effective against improper executive, judicial, or private restraints. Peyton v. Rowe, 391 U.S. 54, 58 (1968). The Writ applied to custody disputes, parental liberty disputes, indentured servants, and other civil restraints, as well as to confinements for alleged crimes. Jones v. Cunningham, 371 U.S. 236, 238-39 (1963). Indeed, had the Writ lacked the power to intervene outside the criminal context, illegal confinement in the British Empire and the United States could have continued unconstrained in the guise of "civil" confinements within incarceration facilities re-labeled as "hospitals," "re-education facilities," or "mental institutions."

At least as early as 1592, English caselaw acknowledged that "[t]he father is the natural guardian of his child, and had a remedy if any one attempted to abduct him." 3 WILLIAM HOLDSWORTH, A HISTORY OF ENGLISH LAW 511, 511 n.7 (quoting Ratcliff's Case, 3 Co. Rep. 37, 39b (1592)("'"The father has the guardianship of his son jure naturae, and this is inseperable and cannot be waived. . . . The father during his life shall have the marriage of his son . . . and not the lord."'")). By at least as early as 1677, the English common law writ of de homine replegiando was regularly available to protect parental rights, and "was used in 1677 to recover an heiress, who had been taken from her guardian,[] and in 1682 to get back a boy who had been 'spirited' away to Jamaica[.]" 9 WILLIAM HOLDSWORTH, A HISTORY OF ENGLISH LAW 106. Gradually, however, statutes and caselaw began "enlarging the scope of the writ of Habeas Corpus" so that "a sheriff or a private person could be ordered to produce a person under his control" and a man could have "a cause of action against one who is confined by the process of some inferior court" if there was not "sufficiency in point of law to justify a detention." 107-08, 111, 120. Starting in about 1679, "the writ of Habeas Corpus began to be commonly used to get relief from imprisonment by private persons, or from imprisonment on other than a charge of crime," effectively subsuming the writ of de homine replegiando. Id. at 119, 119n.3.

The Habeas Corpus Act of 1679, included "any habeas corpus directed unto any sheriff or sheriffs, gaoler, minister or other person whatsoever, for any person in his or their custody," who had "been committed for criminal or supposed criminal matters." In 1816, an Act from the English House of Lords further formalized the understanding that "the Act of 1679 should apply to persons deprived of their liberty otherwise than be reason of a charge of crime." Id. at 121.

Blackstone's summarization of the principles underlying the Writ of Habeas Corpus was as follows:

TO con[s]titute the injury of fal[s]e impri[s]onment there are two points requi[s]ite : 1. The detention of the per[s]on ; and, 2. The unlawfulne[s]s of [s]uch detention. Every confinement of the per[s]on is an impri[s]onment, whether it be in a common pri[s]on, or in a private hou[s]e . . . . Unlawful, or fal[s]e, impr[s]onment con[s]i[s]ts in [s]uch confinement or detention without [s]ufficient authority: which authority may ari[s]e either from [s]ome proce[s]s from the courts of ju[s]tice; or from [s]ome warrant from a legal officer having power to commit, under his hand and [s]eal, and expre[ss]ing the cau[s]e of [s]uch commitment . . . .

. . . .

THE means of removing the actual injury of fal[s]e impri[s]onment, are . . . by writ de homine replegiando[] [and] . . . [b[y writ of habeas corpus.

. . . .

. . . THE writ de homine replegiando [] lies to replevy a man out of pri[s]on, or out of the cu[s]tody of any private per[s]on . . . upon giving [s]ecurity to the [s]heriff that the man [s]hall be forthcoming to an[s]wer any charge again[s]t him. . . . The incapacity therefore of the[s]e three remedies to give complete relief in every ca[s]e hath almo[s]t [e]ntirely antiquated them, and hath cau[s]ed a general recour[s]e to be had, in behalf of per[s]ons aggrieved by illegal impri[s]onment, to

[]THE writ of habeas corpus, the mo[s]t celebrated writ in the Engli[s]h law. . . .

. . . .

[T]he great and efficacious writ in all manner of illegal confinement, is that of habeas corpus ad [s]ubjiciendum; directed to the per[s]on detaining another . . . .

. . . .

[A] wife, a child, a relation, or a dome[s]tic, confined for in[s]anity or other . . . rea[s]ons, might obtain a temporary enlargement by [s]uing out an habeas corpus . . . . [I]f a probable ground be [s]hown, that the party is impri[s]oned without ju[s]t cau[s]e[], and therefore hath a right to be delivered, the writ of habeas corpus is then a writ of right, which “may not be denied, but ought to be granted to every man that is committed, or detained in pri[s]on, or otherwi[s]e re[s]trained, though it be by the command of the king, the privy council, or any other[].”

. . . [T]he per[s]onal liberty of the [s]ubject. It was [s]h[o]wn to be a natural inherent right, which could not be [s]urrendered or forfeited unle[s]s by the commi[ss]ion of [s]ome great and atrocious crime, nor ought to be abridged in any ca[s]e without the [s]pecial permi[ss]ion of law.

3 BLACKSTONE, COMMENTARIES 127-29, 131-33 (1768).

It is clear that before 1789, when the United States Constitution was originally considered for ratification, and also before the enactment dates for the Thirteenth and Fourteenth Amendments (1865 and 1868), the legal understanding of the American Framers concerning the Writ of Habeas Corpus was at least as broad as that of their English counterparts. For example, one American legal treatise noted the conceptual difference between the most early and primitive concept of habeas corpus in medieval England, and the more sophisticated concept that developed in English common law before the Writ was subsequently adopted in the United States:

The use of the writ of habeas corpus in this class of cases [parent for child], infers some modification of the general idea of imprisonment, and an extension of the original design of the writ.

The term imprisonment usually imports a restraint contrary to the wishes of the prisoner; and the writ of habeas corpus was designed as a remedy for him, to be invoked at his insistance, to set him at liberty, not to change his keeper.

But in the case of infants an unauthorized absence from the legal custody has been treated, at least for the purpose of allowing the writ to issue, as equivalent to imprisonment; and the duty of returning to such custody, as equivalent to a wish to be free.

It has been held that the writ may . . . issue . . . against [the child's] express wishes. . . .

"To confine the writ of habeas corpus at common law," said the judge, In the matter of Mitchell, R.M. Charl., 489, "exclusively to cases of illegal confinement would be destructive to the ends of justice. I apprehend it is not going too far to say, that the interests and welfare of society require, that, under peculiar circumstances, the fact that the child of tender years is detained improperly from the person entitled to its possession is sufficient ground to maintain the writ of habeas corpus."

To the same effect, were the observations of Patterson, J., in Ex parte McClellan, 1 Dowl. P.C., 81: "With respect to the argument, that some force or improper restraint must be used in order to authorize the court to remove an infant from the custody of any one, the authorities referred to show that it is not necessary that any force or restraint should exist on the part of the person having custody of the infant towards it."

Rollin C. Hurd, 2 A Treatise on the Right of Personal Liberty and on the Writ of Habeas Corpus and the Practice Connected With It: With a View of the Law of Extradition of Fugitives 454-55 (1858).

The Article I, Section 9, mention of the Writ of Habeas Corpus in the United States Constitution, was one of the few references to individual rights included before adoption of the Bill of Rights. But prior to the enactment of the Fourteenth Amendment, habeas corpus protection of parental liberty was not extended to women or certain disfavored demographic minorities. Parental liberty could be denied on the basis of race, ethnicity, or even world view, without any demonstration that the minority parent was harming his child:

Although in general parents are intrusted with the custody of the persons and the education of their children, yet this is done upon the natural presumption that the children will be properly taken care of, and will be brought up with a due education in literature and morals, and religion . . . but whenever . . . it is found that a father . . . professes atheistical or irreligious principles . . . the Court of Chauncery will interfere and deprive him of the custody of his children, and appoint a suitable person to act as guardian and take care of them, and to superintend their education.

Id. at 457-58 (quoting Story Eq. Juris., Sec. 1341). See also Thomas Jefferson, Notes On the State of Virginia, chapter 17 ("By our own [Virginia] act of assembly of 1705, c.30, if a person brought up in the Christian religion denies the being of a God, or the Trinity, or asserts there are more Gods than one, or denies the Christian religion to be true, or the scriptures to be of divine authority . . . . A father's right to the custody of his own children being founded on his right of guardianship, this being taken away, they may of course be severed from him, and put, by the authority of a court, into more orthodox hands. This is a summary view of that religious slavery . . .").

Today, after enactment of the Fourteenth Amendment, the Supreme Court has recognized that parental liberty is a protected constitutional right which is enforceable against both federal and state governments. "Liberty," as mentioned in the Fifth Amendment and Fourteenth Amendment, and as protected by Article I, Section 9 (Writ of Habeas Corpus) and the Thirteenth Amendment, includes freedom from government abduction of children. The notion of any person, including a child, being considered a mere "possession" of another person or of the government, was done away by the Thirteenth Amendment. And the Equal Protection Clause of the Fourteenth Amendment now ensures that liberty is supposed to be protected for all, regardless of demographic minority status or gender.

In re Tarble, 80 U.S. 397, 398 (1871), involved the father of a minor named Edward Tarble who had successfully obtained a Writ for his son from the Supreme Court of Wisconsin. The father alleged that his son had been improperly enlisted and restrained by a United States military recruiter without the "knowledge, consent, or approval" of the father, and that "the petitioner was lawfully entitled to the custody, care, and services of his son." The United States Supreme Court acknowledged that state courts "undoubtedly a right to issue the writ in any case where a party is alleged to be illegally confined within their limits," but reversed because the Supremacy Clause does not permit a state court to intervene if "it appear[s] upon [the] . . . [habeas] application that [the person] is confined under the authority, or claim and color of the authority, of the United States, by an officer of that government." Id. at 409. Tarble and Ex Parte Bollman, 8 U.S. 75 (1807), taken together, indicate that the federal government is only subject to a federal Writ of Habeas. The federal Writ must be granted by an inferior federal court possessed of explicit federal statutory authority or by the United States Supreme Court in the exercise of inherent original federal constitutional habeas corpus authority.

For its part, the federal Writ of Habeas Corpus has historically been used to vindicate parental rights, especially African-Americans and Native Americans seeking to stop state-sponsored or state-endorsed abductions of their children. E.g. United States ex rel. Young v. Imoda, 1 P. 721 (Mont. 1881); In re Lelah-Puc-Ka-Chee, 98 F. 429 (N.D. Iowa 1899). At the present time, however, it is almost impossible to directly invoke federal habeas corpus against wrongful state-government seizures of children.

In Lehman v. Lycoming County Children's Serv., 458 U.S. 502 (1982), the United States Supreme Court refused to apply the federal habeas corpus statute, 28 U.S.C. 2254, to situations where a child has been wrongfully seized from parents by state government officials. The Lehman Court acknowledged that the plain text of the statute permits a federal court to “entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court,” but then created a legal fiction to counter the difficulty:

[C]hildren [who] have been placed in foster homes . . . are not in the “custody” of the State . . . . They are in the “custody” of their foster parents in essentially the same way, and to the same extent, other children are in the custody of their natural or adoptive parents. Their situation in this respect differs little from the situation of other children in the public generally; they suffer no unusual restraints not imposed on other children.

Id. at 510-11. Of course, children in the custody of a foster parent are really in the custody of the state, since foster parents are typically authorized, empowered, and supervised by state officials. A minor who is in foster care or a state child welfare institution is constrained in much the same way as a minor who is confined in state juvenile prison or state mental hospital. Additionally, a child under the control of the state welfare system is in fact forced to “suffer . . . unusual restraints” and to endure a situation quite different than that enjoyed by “other children in the public generally.” To circumvent the plain text of the statute, the Court was forced to impute a meaning to the term “custody” that was contrary to the traditional use of the word as it 1) would have been understood by Congress at the time of enactment, 2) was set forth in the common law, and 3) is defined in contemporary and modern legal dictionaries.

The Lehman Court also acknowledged that habeas corpus was a traditional legal procedure in both England and early America for handling wrongful child-custody disputes. Id. at 514. The Framers, by implication, would have had this definitional understanding of habeas corpus at the time the federal constitution was drafted to incorporate the common-law principle. Congressmen at the time of enactment would have been well aware of the expansive implications associated with the statutory terms "habeas corpus" and "custody." Additionally, insofar as habeas corpus is concerned, federal decisions have long been considered the supreme and final word regarding wrongful confinement.

Instead of conducting a historical analysis to ascertain textual meaning, the Lehman Court countered the originalist analysis with its own policy justifications:

[T]he exceptional need for finality in child-custody disputes argue strongly against the grant of Ms. Lehman's petition. . . . The grant of federal habeas would prolong uncertainty for children such as the Lehman sons, possibly lessening their chances of adoption. . . . There is little that can be as detrimental to a child's sound development as uncertainty over whether he is to remain in his current "home," under the care of his parents or foster parents, especially when such uncertainty is prolonged.

Id. at 513-14. This rationale, of course, raises its own set of countervailing objections. For example, should the Court impose an extraneous policy judgment that was never expressed by Congress when Congress enacted the statute? Why should an improperly-achieved adoption or custody arrangement be given priority to a rightful and prior natural parent-child relationship? Is the alleged “harm” of “uncertainty” created by complete due process really greater than the harm a child suffers on account of being wrongfully removed from a fit natural parent? If a child is wrongfully taken from a fit parent and given to some other adult, is that not a form of government-sanctioned human trafficking?

Lehman also expressed concern about “federalism” and asserted that “federal courts consistently have shown special solicitude for state interests []in the field of family and family-property arrangements.[]" Id. at 458 U.S. 511-12. But closer examination reveals that the Court’s rationale was specious.

First, habeas corpus was in the main text of the Constitution, not the Bill of Rights (which originally applied only against the federal government), and the Writ has always been traditionally understood to have applications which extend beyond the realm of federal government officials. Mabry v. Johnson, 467 U.S. 504, 507 (1984)(federal Writ requires custody in violation of federal constitution, laws or treaties). Second, one of the primary motivations for the Thirteenth and Fourteenth Amendments was to override wrongful state-government denials of habeas corpus and wrongful state-sanctioned assaults upon family autonomy by means of slave-auctions. Third, the federal government and the federal courts do in fact have a long history of intervening in family law—federal child-welfare statutes and federal anti-polygamy cases are but two of many obvious examples. Fourth, the fact that there have been relatively few federal habeas corpus actions to vindicate the parent-child relationship merely reflects the reality that great cultural deference has traditionally been accorded to family autonomy, thereby obviating the need for lawsuits. The paucity of a certain category of litigation is not necessarily a reliable indicator of the viability of a specific legal principle.

One should not lose sight of the fact that Lehman dealt only with the statutory interpretation of 28 U.S.C. 2254. Article I, Section 9, the Fourteenth Amendment, and the Thirteenth Amendment all bestow broad constitutional authority upon Congress. Congress always has the power to amend, clarify, or expand 28 U.S.C. 2254 to protect families. Alternatively, Congress could also enact an entirely separate habeas-corpus statute which is specially tailored to protect family autonomy, or even enact a civil rights statute analogous to 42 U.S.C. 1983 which is more specifically designed to protect family autonomy.

Furthermore, the misguided ruminations of Lehman have not done quite as much damage as one might casually expect. Federal vindication of parental liberty is now accomplished by use of a federal civil rights statute, 42 U.S.C. 1983, which protects the Liberty enshrined in the Fourteenth Amendment. The Fourteenth Amendment, in turn, incorporates the First, Fourth, Fifth, and Ninth Amendments against state governments. Thus, a 1983 action can be used to stop state officials from participating in wrongful seizures of children or other improper assaults against family autonomy.

Although 42 U.S.C. 1983 helps in some respects to compensate (in the family autonomy context) for the Supreme Court's recent tendency to derogate the general breadth and efficacy of federal habeas corpus, an understanding of habeas corpus is necessary to fully counter specious "originalist" arguments against meaningful federal protection of parental liberty. Some legal jurists and scholars have made attempts to eliminate any form of federal protection for family autonomy. For example, when Justice Antonin Scalia complained in his Troxel v. Granville, 530 U.S. 57 (2000), dissent about "[j]udicial vindication of 'parental rights' under a Constitution that does not even mention them [through use of 42 U.S.C. 1983]," his opinion conspicuously failed to even mention the Fourteenth Amendment or Article I, Section 9. Justice Scalia's non-originalist opinion showed a preference for Roman Civil Law principles instead of English common law tradition and the Parental Liberty Doctrine principles enshrined in the United States Constitution. Both the Fourteenth Amendment and Article I, Section 9, properly understood in light of historical purpose and legal functionality, are inherent textual vindications of parental liberty and family autonomy.

See also Parental Liberty Doctrine.

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