dissenting
Marjorie Lehman appeals from the dismissal of her complaint seeking a writ of habeas corpus to regain custody of her children from the Lycoming County Children’s Service Agency. As the several plurality opinions and Judge Rosenn’s dissenting opinion note, her federal complaint was filed after she unsuccessfully litigated her claim for the childrens’ custody in the Pennsylvania courts, and unsuccessfully petitioned for certiorari. The federal constitutional challenges which she asserts against the statute under which her parental rights were terminated, resulting in the loss of the custody of her children, are significant, but were not considered by the district court because it dismissed for lack of subject matter jurisdiction. I conclude that the dismissal was error, and should be reversed. I disagree, however, with the analysis of the issues in any of the opinions which have been filed.
The source of the confusion in resolving this case is appellant’s attempt to treat habeas corpus as a source of federal subject matter jurisdiction. Habeas corpus, however, is relevant only as a remedy in aid of the court’s exercise of such jurisdiction. The debate over the appropriateness of habeas corpus as a source of jurisdiction has sparked a misguided standing discussion, and, more importantly, has obscured the real nature of Ms. Lehman’s claim. Ms. Lehman is arguing, on her own behalf, that Pennsylvania’s termination of her parental rights was invalid because the relevant statute is unconstitutionally vague. Custody, a statutory incident to the termination decision, is significant only in the event that Ms. Lehman prevails in her constitutional challenge. In that case, the state would no longer have custodial rights in the children, and their return could be obtained through the habeas corpus remedy. There is federal subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1343(a), and the case should be remanded for determination of the res judicata effect of the state termination decision.
*169I
Habeas Corpus Does Not Provide Jurisdiction But May Be Available As A Remedy
The starting point for consideration of the power of a federal court to issue a writ dealing with custody is section 14 of the Judiciary Act of 1789:
That all the before-mentioned Courts of the United States, [District, Circuit, and Supreme] shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions [elsewhere defined], and agreeable to the principles and usages of law. And that either of the justices of the supreme court, as well as judges of the district courts, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment.— Provided, That writs of habeas corpus shall in no case extend to prisoners in ■ gaol, unless where they are in custody, under or by color of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify.
1 Stat. 81-82 (1789) (footnote omitted).
Section 14 is not a statute dealing with jurisdiction. The first sentence simply deals with the power of courts to issue various kinds of mesne process necessary to their respective jurisdiction; jurisdiction, however, is elsewhere defined. Habeas corpus is listed with another mesne process writ, scire facias, and with an omnibus clause including all such writs.
In the second sentence, the power of single judges or justices sitting as members of a circuit court, was limited with respect to prisoners in jail. Whereas the first sentence deals with the powers of the courts, the subsequent reference to “either of the justices ... as well as the judges of the district court” is quite specifically a reference to the powers of the individual members of the original circuit courts which were comprised of two Supreme Court Justices and one District Court Judge.. Section 4,1 Stat. 74-75. Those single members of a circuit court, acting individually and not as a court, were given only the more limited power of inquiring “into the cause of commitment,” rather than the general mesne process powers conferred on the court by the first sentence. That the commitment referred to in the section dealing with a single judge’s powers is commitment to “gaol” is made clear by the proviso immediately following the second sentence.
Since it was common in 1789 to use various forms of capias writs in civil litigation, it is possible that the power of a single judge or justice to “inquir[e] into the cause of commitment” was intended to apply to civil commitments as well as criminal. In any event, however, habeas corpus as court process was not confined to inquiries into the causes of commitment to “gaol.” As court process, habeas corpus included all uses of any form of the writ necessary for the exercise of jurisdiction. The proviso, which excepts state prisoners from federal habeas corpus relief, refers only to prisoners in “gaol,” and thus in no way limits the courts’ power to issue writs for other than prisoners in “gaol.”1
*170Thus the suggestion that “[i]n America, the history of federal courts’ jurisdiction to issue the writ of habeas corpus is one of carefully controlled statutory expansion,” concurring opinion, at 148, is wrong for several reasons. First, section 14 was not jurisdictional. Second, except for prisoners in jail, to which the proviso applied, the grant of statutory authority to courts as distinguished from single judges was as broad as the common law. Every one of the careful statutory expansions to which either opinion of the majority refers involved prisoners in jail who would otherwise have fallen under the interpretation of the proviso announced in Ex parte Dorr, 44 U.S. (3 How.) 103, 11 L.Ed. 514 (1845).2
The first sentence of section 14, with which we are concerned, is now codified in two places. 28 U.S.C. § 2241(a) provides:
Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.
28 U.S.C. § 1651(a) provides:
The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.
There has been no time since 1789 that federal courts lacked the power to issue writs for obtaining custody, other than for state prisoners, if such writs were in aid of their exercise of existing subject matter jurisdiction. The plurality’s attempts to have the state prisoners proviso swallow sections 1651(a) and 2241(a) simply do not fit the legislative history of the governing statutes. That the All Writs statute authorizes writs other than in those instances provided in 28 U.S.C. § 2241(c) concerning state prisoners is made plain by Price v. Johnston, 334 U.S. 266, 278, 68 S.Ct. 1049, 1056, 92 L.Ed. 1356 (1948), in which the Court held that habeas corpus is available to facilitate the exercise of appellate jurisdiction by requiring the production of a prisoner to argue an appeal, and by the Court’s discussion of the question. Moreover, although Price v. Johnston, supra, actually involved a state prisoner,3 it is settled that habeas corpus may be used in non-prisoner cases. It has been used to test the validity of the exclusion of an alien free to go anywhere else in the world. Brownell v. Tom We Shung, 352 U.S. 180, 77 S.Ct. 252, 1 *171L.Ed.2d 225 (1956); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 99 L.Ed. 868 (1953); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317 (1950); United States v. Jung Ah Lung, 124 U.S. 621, 8 S.Ct. 663, 31 L.Ed. 591 (1888). It also has been used to test the validity of a military induction order, Billings v. Truesdell, 321 U.S. 542, 64 S.Ct. 737, 88 L.Ed. 917 (1944), and to test the validity of a military decision that a reservist, claiming to be a conscientious objector, was not entitled to a discharge, Hammond v. Lenfest, 398 F.2d 705 (2d Cir. 1968). None of these cases involved prisoners. None of them would have fallen under the proviso in section 14, and none now fall within its codification, with exceptions, in 28 U.S.C. § 2241(c). In each case there was a recognized basis for federal question jurisdiction, and in each case non-prisoners had their non-jail custody contention considered and resolved.
The habeas corpus question to be resolved, which has nothing to do with the prisoner subsection, 28 U.S.C. § 2241(c), or with any of the cases on which the plurality opinions rely, is whether at common law habeas corpus could be used to obtain custody of children from someone other than a jailkeeper.4 The answer is clear. In Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), the Court reviewed at length the situations in which habeas corpus was resorted to in domestic custody situations.
For example, the King’s Bench as early as 1722 held that habeas corpus was appropriate to question whether a woman alleged to be the applicant’s wife was being constrained by her guardians to stay away from her husband against her will.4 The test used was simply whether she was “at her liberty to go where she pleasefd].”5 So also, habeas corpus was used in 1763 to require the production in court of an indentured 18-year-old girl who had been assigned by her master to another man “for bad purposes.”6 Although the report indicates no restraint on the girl other than the covenants of the indenture, the King’s Bench ordered that she “be discharged from all restraint, and be at liberty to go where she will.” 7 And more than a century ago an English court permitted a parent to use habeas corpus to obtain his children from the other parent, even though the children were “not under imprisonment, restraint, or duress of any kind.”8 These examples show clearly that English courts have not treated the Habeas Corpus Act of 1679, 31 Car. II, c.2 — the forerunner of all habeas corpus acts — as permitting relief only to those in jail or like physical confinement.
371 U.S. at 238-39, 83 S.Ct. at 374-375. The pre 1789 cases to which the Supreme Court makes reference establish conclusively that if child custody, other than custody in a state jail, were an issue in a case within the subject matter of the federal courts, habeas corpus would lie.5 Nor is the rule that habeas corpus is available in custody matters confined to Great Britain, for as Jones v. Cunningham further noted:
*172Again, in the state courts, as in England, habeas corpus has been widely used by parents disputing over which is the fit and proper person to have custody of their child,12 one of which we had before us only a few weeks ago. History, usage, and precedent can leave no doubt that, besides physical imprisonment, there are other restraints on a man’s liberty, restraints not shared by the public generally, which have been thought sufficient in the English-speaking world to support the issuance of habeas corpus.
371 U.S. at 240, 83 S.Ct. at 375 (footnote omitted). To the state habeas corpus cases referred to by the Court in Jones v. Cunningham can be added cases in the state courts in this circuit. See, e. g., In re C.M.D., 256 A.2d 266 (Del.Super.1969); S on behalf of L. v. H.M. and E.M., 111 N.J.Super. 553, 270 A.2d 48 (1970); Commonwealth ex rel. Ebel v. King, 162 Pa.Super. 533, 58 A.2d 484 (1948). See also New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 5. Ct. 903, 91 L.Ed. 1133 (1947); May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953). Despite the plurality’s assertion to the contrary, it is clear that habeas corpus is a traditional common law remedy in cases involving parental rights to custody of children. Their concern that the availability of habeas corpus in child custody eases will grow out of hand and habeas corpus seen as applicable in custody disputes between “warring parents” is unwarranted in light of the fact that the writ is available only if the complaint states a claim within the subject matter jurisdiction of the district court.6
II
Does A Federal Court Have Subject Matter Jurisdiction
Since from the eighteenth century habeas corpus has been a traditional remedy by which to regain custody of wives and children, and even servants, and any use of habeas corpus as mesne process has, except in state prisoner cases, always been available to federal courts otherwise having subject matter jurisdiction, the next question is whether the complaint states facts under which the plaintiff could prove a claim within that jurisdiction.7 That question does not, as Judge Garth suggests, depend on whether “there is an inherent right to a litigant to have a federal court consider a federal claim.” Plurality opinion, at 144. Rather, it depends on whether Ms. Lehman’s substantive claim is predicated on federal law, and whether Congress has entered a jurisdictional statute. Here the claim is predicated on a violation of due process. Sections 1331 and 1343(a)(3) of Title 28 of the United States Code afford jurisdiction over such claims. As Judge Garth acknowledges, plurality opinion at 145, this claim is one which could have been brought in the federal court in the first instance.
One barrier to subject matter jurisdiction in the district court was the ill-considered statement of a divided panel in Solomon v. Solomon, 516 F.2d 1018 (3d Cir. 1975), that *173federal courts do not entertain cases involving domestic relations. That case is no bar here, since the court en banc can overrule a prior panel opinion. Obviously the plurality has done so by assuming that a section 1983 action would lie in a child custody dispute presenting a federal question. Thus there is no need to restate here the views I expressed in my Solomon dissent as to why that case was wrongly decided. See 516 F.2d at 1027-33.8
The presently controlling precedent for subject matter jurisdiction is, as Judge Garth acknowledges, New Jersey Education Ass’n v. Burke, 579 F.2d 764, 766-71 (3d Cir.), cert. denied, 439 U.S. 894,99 S.Ct. 252, 58 L.Ed.2d 239 (1978). Under 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331 and 1343 a federal forum is available.9 The question is not, as the district court assumed, a matter of jurisdiction. Rather it is a matter of determining whether there is some objection, going to the merits of the claims, for rejecting it. Judge Adams suggests a lack of standing. Judge Garth suggests res judicata. Both are defenses going to the merits, not to subject matter jurisdiction.
Ill
Standing
As both Judge Garth and Judge Rosenn note, Judge Adams’ standing contention is a matter going to the merits which were not considered by the district court. Unlike them, however, I believe it can properly be considered here. Certainly we can affirm a dismissal of a complaint on erroneous juris*174dictional grounds for the different reason that it fails to state grounds upon which relief could be granted. Harold Friedman, Inc. v. Thorofare Markets, Inc., 587 F.2d 127, 140 (3d Cir. 1978); PAAC v. Rizzo, 502 F.2d 306, 308 (3d Cir. 1974), cert. denied, 419 U.S. 1108, 95 S.Ct. 780, 42 L.Ed.2d 804 (1975). Thus it is necessary to consider Judge Adams’ rather startling and far reaching standing proposition.10
Judge Adams asserts that Ms. Lehman lacks standing to assert the present habeas claim for custody of her children. He reasons that whereas the state has an interest in the welfare of the child, Ms. Lehman, in attacking the method by which the state has asserted that interest “may actually be asserting an interest that derogates from the child’s interest.” Concurring opinion, at 154. It is because of this possibly divergent interest that she is said to lack standing to seek their custody. This argument again confuses the posture of this case and the relevance of Ms. Lehman’s request for habeas relief.11 Plaintiff is not suing primarily for custody but, rather, is challenging the state’s termination of her parental rights. Custody would be awarded only as a matter of relief. Certainly Ms. Lehman has standing to be in federal court; Judge Adams, in footnote 31, admits as much. Whether she wins or not, however, is another matter. Judge Adams errs in attempting to decide Ms. Lehman’s right to bring suit by imposing his views as to whether she should be accorded the relief she seeks.
In doing so, he attaches legal significance to the fact that years ago, in necessitous circumstances, Ms. Lehman temporarily relinquished custody. By the legerdemain of lack of standing Judge Adams decides that Ms. Lehman’s conduct is legally significant, giving legal effect to it to bar her at the courthouse door. By couching this decision in terms of that slippery and indefinite term “standing,” he relieves himself of the obligation to explain to his colleagues and the world why the circumstances of that surrender of temporary custody ought to warrant the denial of Ms. Lehman’s right even to be heard to claim that her children would be better off with her nurturing.
Even if one were to accept the proposition that an issue in dispute should be decided sub silentio in the guise of a standing holding, there remains the ipsi dixit that Ms. Lehman cannot resort to habeas corpus to assert her rights. Why not? Certainly a natural parent has rights which the law recognizes. When a husband resorts to habeas corpus because his wife is being kept away from him, the court obviously will consider whether the wife prefers other company. But he, certainly, has standing to claim that he has lost her companionship and services. So, too, when masters brought habeas corpus actions to obtain the return of bonded servants they certainly were asserting their own interests.
Thus I am not persuaded that Judge Adams’ standing argument justifies the dismissal of the complaint.
IV
Res Judicata
The only real issue presented by this appeal is whether the judgment of the Pennsylvania court requires dismissal of Ms. Lehman’s complaint as a matter of law. As with the habeas corpus discussion, the starting point is a statute. In any court in the United States, state or federal, the judgment preclusion effect of an earlier state court judgment is governed not by some abstractions derived from general principles, but by 28 U.S.C. § 1738. Since 1790 that statute has provided in relevant part:
Such ... judicial proceedings ... shall have the same full faith and credit in every court within the United States .. . *175as they have by law or usage in the courts of such State ... from which they are taken.
At most, then, a district court confronted with a claim of res judicata is bound by a state court judgment only to the extent that the rendering state would be bound. See, e. g., Ford v. Ford, 371 U.S. 187, 83 S.Ct. 273, 9 L.Ed.2d 240 (1962); Kovacs v. Brewer, 356 U.S. 604, 78 S.Ct. 963, 2 L.Ed.2d 1008 (1958); New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133 (1947).12 Thus, the first level of inquiry is the effect which Pennsylvania accords terminations of parental rights.
What scarce Pennsylvania case law there is suggests that termination proceedings, governed by 1 Pa.Cons.Stat. §§ 301 et seq. (Purdon Supp.1979), are modifiable and subject to reopening. In In re Adoption of R.H., 485 Pa. 157, 401 A.2d 341 (1979), the supreme court considered a collateral challenge to both a voluntary and an involuntary decree. Although ultimately affirming the decrees, the court recognized that the decrees might have been reversed had the natural mother met her burden of proving the invalidity of the challenged decrees. Id. at 344. Cf. In re Adoption of Baby Boy (Benjamin), 452 Pa. 149, 305 A.2d 360 (1973) (voluntary relinquishment of parental rights and duties can be collaterally attacked prior to adoption).
By statute, a termination decree necessarily includes a custody award.13 Given that custody is a necessary incident of the termination decree, Pennsylvania law as to the finality of custody determinations is particularly instructive. Significantly, Pennsylvania permits reopening. In 1977 it enacted the Uniform Child Custody Jurisdiction Act, Pa.Stat.Ann. tit. 11, §§ 2301-2325 (Purdon Supp.1980-1981). An avowedly jurisdictional statute, the Act is predicated on the assumption that all custody decrees are modifiable. Its purpose is simply to formalize a type of jurisdictional etiquette so as to minimize interstate conflict over the modifications. The reporter for the Special Committee which drafted the Act has said that it was based on the assumption that although states need not recognize as binding a custody decision of another state, they are authorized to do so. Bodenheimer, The Uniform Child Custody Jurisdiction Act: A Legislative Remedy for Children Caught in the Conflict of Laws, 22 Vand.L.Rev. 1207, 1232 (1969). See May v. Anderson, 345 U.S. 528, 535, 73 S.Ct. 840, 844, 97 L.Ed. 1221 (1953) (Frankfurter, J., concurring). Since its adoption, Pennsylvania courts have recognized that custody decrees are not final. See, e. g., Commonwealth ex rel. Zaubi v. Zaubi, 492 Pa. 183, 423 A.2d 333 (1980) (physically or emotionally harmful conditions); In re Sagan, 261 Pa.Super. 384, 396 A.2d 450 (1978) (abandonment or physical abuse). There may be a different result concerning the finality of adoption decrees, see, e. g., In re Adoption of Baby Boy (Benjamin), 452 Pa. 149, 305 A.2d 360 (1973), but decrees of termination of parental rights, prior to any judgment of adoption have an effect akin to that of custody decrees. But cf. D.Y.F.S. v. D.T. and J.T., 171 N.J.Super. 520, 410 A.2d 79 (1979). In this case, there has been no judgment of adoption with respect to any of the children.
*176Because of the posture in which the case is before us — a dismissal for lack of subject matter jurisdiction — the district court gave no consideration to what the law of Pennsylvania is on reopening either termination or custody determinations. My independent exploration of it does not leave me confident to say what that law is in all circumstances.
But federal law, binding Pennsylvania, would, I submit, require reopening on the basis of the constitutional infirmity of a judgment having ongoing effects. The reference in section 1738 to the law of the rendering state is a reference not only to the state’s statutes and case law, but to federal law, constitutional and otherwise, relevant to the issue. Such law is the law of every state. Thus in determining whether or not a given decree can be given ongoing effects or whether or not a plaintiff should be relieved from such effects, federal law is fully operative.14 Section 1738 cannot be interpreted as requiring us to give ongoing effect to an unconstitutional judgment. Although the literal words of section 1738 direct state and federal courts to the law of the rendering state and no further, literalism has never been the rule of construction applied to that statute. It is federal statutory law, not state law, which requires that a state court judgment be given any effect in the courts of another sovereignty. If that federal statutory law were to be construed to require giving ongoing effect to state court judgments which violated federal constitutional standards, the federal statute would itself violate the fifth amendment.
The due process limitations upon a literal interpretation of section 1738 are, in the jurisdiction to adjudicate and adequacy of notice and opportunity to be heard senses, obvious. Thus even before the fourteenth amendment it was recognized that despite the literal language of section 1738 some judgments were not enforceable in other courts in the same manner as in the original forum. Boswell’s Lessee v. Otis, 50 U.S. (9 How.) 336, 13 L.Ed. 164 (1850). The Court in that and similar cases discussed the problem in terms of jurisdiction to adjudicate. We know, though, that authority to adjudicate is a matter of due process. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950); International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Those cases applied the fourteenth amendment due process clause, but it is clear that if a judgment were to be rendered in violation of them an interpretation of section 1738 requiring that the resulting judgment be enforced in another court, state or federal, would violate fifth amendment due process.
These obvious constitutional limitations on literal application of the statute do not, however, exhaust the range of constitutional limits on federal statutory law. If, for example, a state court injunctive judgment, long since final, imposed upon a defendant what amounted to a prior restraint in violation of the first amendment, an effort to require that another court, state or federal, give that judgment ongoing effect by virtue of section 1738 also would run afoul of the substantive limitations of the first amendment. Requiring ongoing enforcement of an unconstitutional judgment would infringe on an important superior federal policy. An example of this principle in operation is Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977). Maynard was convicted in New Hampshire three times for the misdemeanor of defacing his New Hampshire license plate by oblitering the slogan “Live Free or Die.” All three convictions became final. Despite section 1738, and without inquiring into the res judicata effect New Hampshire would give to its three prior judgments on the legal question whether the New Hampshire statute violated the first amendment, the *177Court affirmed the grant of a federal court injunction under 42 U.S.C. § 1983 on first amendment grounds. If the Court had construed section 1738 to require that the New Hampshire judgments be recognized despite the first amendment, section 1738 would give continuing effect to an invalid prior restraint.
Arguably Allen v. MeCurry, - U.S. -, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980), casts doubt on the foregoing analysis, even when collateral estoppel has the necessary effect of giving ongoing effect to a judgment which violates a substantive provision of the constitution as a matter of law. However, I do not think that Justice Stewart’s opinion — which does not even refer to section 1738 — should be read as anything but an emendation of Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). At most it may be read as preventing fact relitigation in fourteenth amendment eases when the original fact litigation has satisfied procedural due process standards. So read it is consistent with the analysis I have suggested, and unexceptional. The Court did not decide whether the nonconstitutional rules of collateral estoppel and res judicata could validly be applied to require giving ongoing effect to judgments which even on the facts as found, substantively violate the constitution.15 Strong evidence that Wooley v. Maynard, supra, was not overruled by Allen v. MeCurry, supra, is that MeCurry neither mentioned nor sought to distinguish the earlier precedent.
A judgment terminating parental rights and awarding custody, like one imposing a prison sentence, or one imposing a prior restraint, has ongoing effects. It deprives both parent and child of an ongoing relationship. Thus even if at the first level of inquiry it appears that Pennsylvania considers such decrees final for purposes of res judicata, the decrees disfavoring Ms. Lehman cannot be given preclusive effect if her constitutional challenges are valid.16
V
Disposition
Ms. Lehman’s challenge to the constitutionality of the Pennsylvania statutory scheme is substantial. In re William L., 477 Pa. 322, 359, 383 A.2d 1228, 1247 (1978) (Nix, J., concurring and dissenting). It was not addressed by the district court, and is not addressed by the plurality. I agree that on the abbreviated record before us it would be unwise for us to decide it. But since the district court plainly had subject matter jurisdiction, and since the res judicata effect of the Pennsylvania decree cannot be determined without consideration of that challenge, the order dismissing the complaint should be reversed, and the case remanded for further proceedings.
. The probable intention of the draftsmen in adding the proviso to section 14 was, I believe, to limit only the power of a single judge or justice conferred in the second sentence. As Judge Adams points out, in Ex parte Dorr, 44 U.S. (3 How.) 103, 11 L.Ed. 514 (1845), the Court construed the proviso to be applicable to the entire section. Justice McLean said:
This is so clear, from the language of the section, that any illustration of it would seem to be unnecessary. The words of the proviso are unambiguous. 44 U.S. (3 How.) at 105, 11 L.Ed. 514. With deference, one may disagree. The writ was sought by Francis C. Treadwell on behalf of his client so as to gain access to the client for the purpose of having him sign a writ of error. The Supreme Court had unquestioned jurisdiction to entertain that writ since Dorr was challenging the validity of his conviction on at least two significant constitutional grounds. See Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 5 L.Ed. 257 (1821). One was whether, despite Article III section 3 of the Constitution, a defendant could be convicted of treason against a state. The other was whether, assuming an affirma*170tive answer to the first question, a defendant could be convicted of treason against a government not republican in form. The court was not then anxious to decide either federal question. It avoided deciding the latter question in Luther v. Borden, 48 U.S. (7 How.) 1, 12 L.Ed.2d 581 (1849) also. The effect of Ex parte Dorr was that, by locking Dorr up so that he could not sue out a writ of error, the Charter Government of Rhode Island was permitted to accomplish the result for which Virginia had argued unsuccessfully in Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 5 L.Ed. 257 (1821), that of allowing separate states final construction of the federal laws. Ex parte Dorr is a less than reputable product of an unfortunate time in which the Court was attempting to stand aside from the emerging states’ rights dispute. Its holding that section 14 of the Judiciary Act does not extend to bring up a state prisoner for any other purpose than to be used as a witness, i. e. to set his appeal to the federal courts in motion, fortunately, does not survive Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948). But even the now repudiated misconstruction of the proviso has nothing to do with this case, since we are not dealing with a commitment to jail. Justice McLean’s reference in Ex parte Dorr to civil commitment is to commitment to jail as mesne process, not to custody outside jail.
. The expansions to which the plurality refers, which are codified in 28 U.S.C. § 2254(c), have nothing to do with the question presented here. The children whose custody is sought have never been in jail and never would have fallen within the coverage of the proviso of section 14. Someone seeking to obtain their custody would never have had to rely on the now codified exceptions to the proviso which, beginning with the Force Act of 1833, § 7, 4 Stat. 634-35, Congress gradually adopted. The Judiciary Act of 1867, 14 Stat. 385, to which the concurring opinion devotes so much space, in no way affected the authority conferred in the 1789 statute. Ex parte Yerger, 75 U.S. (8 Wall.) 85, 19 L.Ed. 332 (1868).
. It thus overruled the Ex parte Dorr construction of the habeas corpus statute. See note 1 supra.
. In Fay v. Noia, the Supreme Court instructed:
[I]t would appear that the Constitution invites, if it does not compel .... a generous construction of the power of the federal courts to dispense the Writ conformably with common-law practice.
372 U.S. 391, 406, 83 S.Ct. 822, 831, 9 L.Ed.2d 837 (1963) (citation omitted).
- Rex v. Clarkson, 1 Str. 444, 93 Eng.Rep. 625 (K.B. 1722).
- Id., at 445, 93 Eng.Rep., at 625.
. Rex v. Delaval, 3 Burr. 1434, 97 Eng.Rep. 913 (K.B. 1763).
- Id., at 1437, 97 Eng.Rep., at 914.
. Earl of Westmeath v. Countess of Westmeath, as set out in a reporter’s footnote in Lyons v. Blenkin, 1 Jac. 245, 264, 37 Eng.Rep. 842, 848 (Ch. 1821); accord Ex parte M’Clellan, 1 Dowl. 81 (K.B. 1831).
. It should also be noted that Sommersett’s Case, 20 How.St.Tr. 1, sub nom. Somerset v. Stewart, 98 Eng.Rep. 499 (1772), in which Lord Mansfield held that slavery did not exist under the common law of England, was a writ of habeas corpus. Certainly disputes over the custody of servants did not fall within the proviso to section 14, and, were they to arise today, would not be governed by section 2241(c).
. E. g., Boardman v. Boardman, 135 Conn. 124, 138, 62 A.2d 521, 528 (1948); Barlow v. Barlow, 141 Ga. 535, 536-537, 81 S.E. 433, 434 (1914); In re Swall, 36 Nev. 171, 174, 134 P. 96, 97 (1913) (“the question of physical restraint need be given little or no consideration where a lawful right is asserted to retain possession of the child”). See also In re Hollopeter, 52 Wash. 41, 100 P. 159 (1909) (husband held entitled to release of his wife from restraint by her parents); In re Chace, 26 R.I. 351, 358, 58 A. 978, 981 (1904) (wife held entitled to husband’s society free of restraint by his guardian).
. This case does not require that we determine whether the exhaustion rule of Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572 (1944), codified in 28 U.S.C. § 2254(b), applies to writs of habeas corpus other than for state prisoners, since any test which might apply under that section has been met. I note, however, that it is doubtful that Congress, when it enacted the recodification of the Judicial Code in 1948, had in mind anything more than codification of the Hawk result. Thus exhaustion of state remedies probably has no significance except as it bears upon res judicata. See part IV infra.
. Judge Adams’ repeated reference to Ms. Lehman’s jurisdictionally deficient complaint ignores 28 U.S.C. § 1653, which provides that “[d]efective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.” See concurring opinion, at 148 n.7, 149 nn.15, 17, & 151 n.31.
. It is worthwhile to add that the unconsidered dicta in Barber v. Barber, 62 U.S. (21 How.) 582, 16 L.Ed. 226 (1859) and In re Burrus, 136 U.S. 586, 10 S.Ct. 850, 34 L.Ed. 500 (1890), about federal courts’ incompetence to decide cases involving domestic relations issues has long since been buried under an avalanche of Supreme Court precedent deciding such cases where there is subject matter jurisdiction. See, e. g., Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (parents’ authority over minor’s abortion decision); Parham v. J.R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979) (limits on parental authority to institutionalize children); Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979) (child custody; decided on Younger grounds; jurisdiction assumed); Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979) (rights of natural mother in adoption); Quillion v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978) (rights of natural father in adoption); Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978) (right to marry when supporting minor children); Moore v. City of East Cleveland, Ohio, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (state regulation of housing for extended families); Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977) (procedural safeguards for foster family relationship); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976) (husband’s or parent’s authority respecting abortions); Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975) (state limitations on access to divorce); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974) (maternity leave policy); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (state restrictions on abortion); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (state interference with parental control over education of child); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (child custody rights of unwed father); Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971) (state limitations on access to divorce); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (validity of state law prohibiting marriage); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (state control of contraception in marriage relationship); Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944) (state control over parent-ordered child labor); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (state interference with education of children). See Developments in the Law — The Constitution and the Family, 93 Harv.L.Rev. 1156 (1980).
. The plurality’s acknowledgment that Ms. Lehman could get into federal court illustrates the folly of the artificial dichotomy it has attempted to draw between habeas corpus outside the state prisoner context and other exercises of federal judicial power. If we hypothesize that Ms. Lehman, perhaps mindful of the possible trauma caused by a sudden change in custody, were to bring a federal court action seeking in the first instance a declaratory judgment that a child’s present custody is unlawful and should be changed, and were to succeed in that action, it would be an incredible suggestion that the court which rendered such a declaratory judgment could not make it effective by resort to the mesne process of habeas corpus authorized by §§ 1651(a) and 2241(a).
. The law of standing to assert federal law claims binds not only the federal courts, but state courts as well. Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961); Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603 (1943).
. Although Judge Adams argues that habeas corpus is not available in this case, in assuming its availability for purposes of his discussion of standing he incorrectly assumes that it is a source of jurisdiction.
. The recent amendment to § 1738, § 1738A, concerning full faith and credit given to child custody determinations is inapplicable since it deals only with states. Parental Kidnapping Prevention Act of 1980, Pub.L.No. 96-611, § 8, 49 U.S.L.W. 228 (Statutes March 10, 1981).
. Section 321 of the Adoption Act provides:
A decree terminating all rights of a parent or a decree terminating all rights and duties of a parent entered by a court of competent jurisdiction shall extinguish the power or the right of such parent to object to or receive notice of adoption proceedings. The decree shall award custody of the child to the agency or the person consenting to accept custody under section 301 or section 302, or the petitioner in the case of a proceeding under section 312. An agency or person receiving custody of a child shall stand in loco parentis to the child and in such capacity shall have the authority, inter alia, to consent to marriage, to enlistment in the armed forces and to major medical, psychiatric and surgical treatment, and to exercise such other authority concerning the child as a natural parent could exercise.
1 Pa.Cons.Stat.Ann. § 321 (Purdon Supp.1979) (footnotes omitted) (repealed and recodified at 23 Pa.Cons.Stat.Ann. § 2521 (Purdon Supp. 1981-82)).
. In Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977), discussed infra, for example, had the challenge to the New Hampshire statute been made in a state court, that court would have been obliged to give the same relief as was given in the federal district court. Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980); Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967 (1947).
. The classic example of a judgment having ongoing effects which violate the constitution is, of course, a judgment of sentence under an unconstitutional statute, or obtained in violation of due process. Such an example could not arise in the court of a sister state, but obviously could and did arise when federal courts were asked for relief from the ongoing . effects of such a judgment. In Fay v. Noia, 372 U.S. 391, 465-66, 83 S.Ct. 822, 862-63, 9 L.Ed.2d 837 (1963), even dissenting Justice Harlan conceded that if the state judgment were procedurally deficient by federal due process standards it was reviewable under habeas corpus, a position with which Justice Powell in Stone v. Powell, 428 U.S. 465, 494 & n.37, 96 S.Ct. 3037, 3052 & n.37, 49 L.Ed.2d 1067 (1976), did not disagree. That position is consistent with the more general proposition discussed above, that section 1738 does not require ongoing enforcement of judgments obtained in violation of due process. The majority in Fay v. Noia went further, insisting that substantive violations of the constitution must also be recognized.
It is perhaps unfortunate that so much emphasis was placed upon the mystique of habeas corpus in Fay v. Noia and so little on a construction of section 1738 which is, or at least should be, compelled by the due process clause of the fifth amendment. Had that broader principle been announced it might have been more difficult for Justice Powell to start down the unfortunate path taken in Stone v. Powell, supra, of selective enforcement of the Bill of Rights.
. Pennsylvania law on the preclusive effect of such decrees must be read to include the availability of relief from unconstitutional judgments.