Originalism and History: The Case of Boumediene V. Bush

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Originalism in theory is one thing. Originalism in practice may be something else again. To interpret the Constitution in light of history, which is what originalism amounts to, you have to interpret history. How well you perform the task of the historian will determine how accurately you interpret the Constitution. This should be an obvious point, but too little has been made of it. The Supreme Court's opinion in Boumediene v. Bush, (1) decided in 2008, nicely illustrates how historical interpretation can support or distort constitutional analysis.

Boumediene was the third in the trilogy of habeas corpus cases in the Supreme Court brought by detainees at the Guantanamo Bay Naval Base. (2) The question in the first two cases was whether the habeas statute (3) entitled the detainees to challenge their confinement. Our court twice said no, the Supreme Court twice said yes, and each time Congress reversed the Supreme Court. (4) I wrote the opinions in our court's first two Guantanamo habeas cases, and then in Boumediene, and the Supreme Court reversed all three times. With this in mind, you can consider my remarks about the Supreme Court's performance as sour grapes or, as I prefer, you can treat my comments as informed criticism.

The issue in Boumediene was whether the statutes depriving federal courts, judges and justices of jurisdiction over Guantanamo habeas actions (5) violated the Suspension Clause of the Constitution. (6) The Clause reads: "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." (7) The Suspension Clause is a riddle. It limits the instances when Congress may suspend the writ without guaranteeing the writ will exist. The Supreme Court has not done a good job of solving the riddle, but that is not the interpretive problem I want to focus on.s All the Justices in Boumediene accepted the proposition that the Suspension Clause at least preserved the common law writ of habeas corpus as it existed in 1789. (9) This raises an interesting question for originalism theory.

Suppose we agree that the correct approach is the original public meaning of the text, not the original intent of the Framers. (10) So we must conduct a hypothetical interview of the reasonably informed man in the street in 1789 to find out what the Suspension Clause preserved. We ask Mr. Citizen to speak into the microphone: "What do you think the writ of habeas corpus entails? Does it reach beyond the sovereign territory of England?" He might reply, "Don't ask me, ask the lawyers," or perhaps, "I don't have a clue." No Justice in Boumediene took this approach, and no Justice mentioned the original public meaning theory. Both the majority and the dissent thought it proper to rely on the legal authorities of the day rather than on our mythical common man. (11)

In Boumediene, the first question under the Suspension Clause was how far geographically the writ of habeas corpus reached in 1789. Guantanamo is not now, and never has been, part of this country's sovereign territory. Congress recognized this when it defined "United States" to exclude Guantanamo Bay in the statute overruling the first Supreme Court Guantanamo decision. (12)

I remember working at home on the geographical-scope issue. The language of the Suspension Clause--suspend in times of invasion or rebellion (13)--seemed to contemplate a writ confined to United States territory. It struck me that I ought to look at the lectures on English law that Sir Robert Chambers gave at Oxford between 1767 and 1773. (14) (Chambers took over the Oxford lectureship from Blackstone.) Pretty contemporary I thought. So I pulled these volumes off the shelf in my library and cracked open volume two.

To my delight, I found a discussion directly on point. Among other authorities, Chambers relied on an opinion of Lord Chief Justice Mansfield. (15) Lord Mansfield was the greatest lawyer of eighteenth-century England. …