Originalism and History: The Case of Boumediene V. Bush. (Twenty-Ninth Annual Federalist Society National Student Symposium: Originalism‪)‬

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.