The Corpus of History

History matters. Perhaps more to the point, how we craft history matters, whether we are historians or not. The Supreme Court proved this on June 12 when it issued its decision in Boumediene v. Bush. The case concerns habeas corpus, latin for “have the body” (as in a command by a judge to a jailor to “have the body in my courtroom and explain why you are restraining him or her”). In Boumediene, the question at issue was whether the government could strip federal courts of jurisdiction to entertain prisoners’ applications for habeas corpus. The Court broke five to four against the government, ruling that Congress had exceeded its authority. The case is sure to be a landmark. Many books will be written about it, and generations of law students will debate its merits. It will also prove the old dictum that hard cases make bad law. The issues in Boumediene are legion and the technical complexity formidable. Reasonable people can violently disagree on the correct legal outcomes warranted by the facts of the case.

Which is why history matters so. Both Justice Anthony Kennedy’s majority opinion and Justice Antonin Scalia’s dissent turn to the past to justify their interpretations of habeas corpus. In doing so, they demonstrate just how immediate the past can be—but also just how divisive it remains. Choosing between the five justices in the majority and the four in the minority is, in essence, choosing between two very different histories.

… It should be said that the founders’ views on these matters have not survived strict historical scrutiny. Historians have since demonstrated that Magna Carta was hardly a victory for abstract liberty. Its famous protections are better understood as checks on royal power in favor of the baronage. Moreover, habeas corpus’s early history was less about protection of individual liberty and more about the assertion of royal authority. By prohibiting imprisonment without just cause, it empowered medieval and early-modern monarchs to intervene in the affairs of local courts. The early history of habeas is thus more connected with the development of sovereignty and power than with civil liberties.

Remarkably, Kennedy’s own history is sensitive to these facts. He fully recognizes that the Great Writ cannot be traced back definitively to Magna Carta and that the writ’s early history was in the service of the king rather than against him. Nonetheless, Kennedy concludes that by the seventeenth century habeas corpus had come to represent a check on the very authority that had issued it. For if the king’s law extended to all corners of the realm, so too did it bind the king, and this principle eventually transformed habeas corpus into a writ that could test the legality of any detention, even one ordered by the king. What could cause such a profound change in the law? Kennedy rather impatiently concludes that “the development was painstaking, even by the centuries-long measures of English constitutional history.”

… Oddly, given Scalia’s penchant for originalism (or the idea that the Courts’ interpretations should be consistent with the framers’ original  intent), his interpretation of the history of the Suspension Clause is rather weak. It amounts to the dual claim that when the framers did their work, the common law writ of habeas corpus did not run outside the king’s sovereign territory and was never intended to be extended to aliens abroad. He likens Guantanamo Bay to eighteenth-century Scotland. There, English courts had no jurisdiction in matters of habeus corpus. And the British government used this loophole, much like the Bush administration uses the “enemy combatant” designation, to arbitrarily imprison its Scottish enemies. Scalia also points to the absence of any case in English history where a prisoner of war requested a writ of habeas corpus, let alone had one granted. “The text and history of the Suspension Clause,” he concludes, “provides no basis for [U.S. court’s] jurisdiction” in Guantanamo.

Technical merits of his opinion aside, Scalia’s use of history is an utter failure. His narrative of the present war glibly subsumes Sunni and Shiite rebels, Al Qaeda and its many loose affiliates into one singular “enemy.” By including the 1983 Beiruit barracks bombing—perpetrated by a Shia militia formed in the wake of Israel’s 1982 invasion of Lebanon with no connection to Al Qaeda—with these other attacks, he not only suggests that the current war has been going on much longer than most Americans (including most in the government) realize but, more outrageously, that our’s is a war of civilizations. It is America against all who hate us—and they all happen to be Arab. But never mind all of this. Scalia’s legal history is also troubling. Consider the Scotland/Guantanamo analogy, which actually weakens Scalia’s argument. As any card-carrying originalist should know, the constitutional position of Scotland was a matter of grave concern for colonists who watched the English parliament strip Scots of, among other things, the right to bear arms. The founders—former English subjects who, much like the Scots, resided in the British provinces—would doubtless be puzzled if told that the reach of habeas corpus could extend no further than the British had allowed it in 1789.

Despite its intellectual flimsiness, Scalia’s narrative is the more viscerally powerful. Its Cassandra-like prophesizing of future violence rouses our deepest fears. Its invocation of American blood spilled on American soil stirs our rage. And its simplicity satisfies, even if deceptively so. But this speaks to the opinion’s persuasiveness, and the ultimate measure of that will be whether Scalia has touched the right nerve with Americans. Kennedy’s narrative is more nuanced and complex. But the price of complexity may well be fragmentation. How can historical complexity compete with the nineteenth-century faith in steady, indomitable progress or with the eighteenth century’s pervasive fear of conspiracy and tyranny? Habeas corpus played a heroic role in both narratives, and that gave the writ a powerful legitimacy.

No historian should, of course, return to writing such intellectually untenable histories. Nonetheless, we would do well to review the power that narratives have to ascribe meaning. Habeas corpus would not have been enshrined in our Constitution were it not for the founding generation’s conviction that it was the bedrock of civil liberty and had been so since time immemorial. Subsequent historical investigation proved their view fanciful, but this did not deter Justice Kennedy from crafting a new narrative to explain the majority’s safeguarding of habeas corpus against congressional attempts to subvert it. His narrative is not as grand, nor as simple, as those of the founding generation. But it is credible. It is a history that recognizes the complexities of the past and avoids the crass simplicities and violent elisions present in Justice Scalia’s use of history. That the Supreme Court has deployed Kennedy’s narrative to check congressional expansion of executive power in the midst of the Bush Administration’s “War on Terror” is no small matter. And a reminder of how much history matters.

– from Talk of the Past: The Supreme Court Confronts History  by H. Robert Baker in Common-Place Vol. 8, no. 4: July 2008

[ Note that this does not mean history itself is variable; rather that our interpretations of it, after the fact, can diverge.]

-Julie

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