Legal Historians in Robes

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The recent decision in Boumediene v. Bush highlighted the importance of the perspective of legal history in the interpretation of our nearly 220-year-old Constitution. Moreover, an amicus brief by a group of professional historians is prominently cited in the meat of the opinion. However, the case also might suggest the danger that history can be twisted to any purpose, given that both the lead opinion and dissents both employ historical arguments.

The case turned on whether detainees at the Guantanamo Bay military base could employ the common law writ of habeas corpus to challenge their imprisonment, even though that was specifically denied under a provision of the Military Commissions Act of 2006. In a 5-4 decision the court found that the the detainees had that right and that portion of the MCA was unconstitutional.

Justice Kennedy' s opinion is to a large degree an historical survey of the Anglo-American writ of habeas corpus. He draws deeply upon the amicus brief of historians of English and American law signed by Sir John H. Baker (Cambridge), Lawrence M. Friedman (Stanford Law), Sarah Barringer Gordon (Penn Law), and Hendrik A. Hartog and Stanley N. Katz (Princeton) -- to name only a few. Kennedy's use of history is respectful; he is careful to note what the historical precedents do not show.

The Scalia and Roberts dissents also use history, although their focus on a case involving Nazi detainees after World War II (Johnson v. Eisentrager, 339 U.S. 763 (1950)) tends to found their arguments on a questionable historical analogy.

The Boumediene decision will likely not be the only decision this term to ride on historical opinion: expect more historical ruminations when the first case to re-examine the Second Amendment in years (D.C. v. Heller) is decided (maybe tomorrow or Thursday). Speculation is rampant that Scalia is writing the majority opinion, so a scholarly excursion into the late 18th century is pretty certain; perhaps even we will hear echos (probably in a dissent) of a fascinating animus brief by three historical linguists.