Constructive constitutional history and habeas corpus today

Abstract

In her book, Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay, Professor Amanda Tyler has written a definitive constitutional history of the habeas privilege in the United States.1 Rather than rehearsing the book’s many virtues, I propose to devote this short Essay to the familiar yet intractable problem of historical translation. The problem of how to translate the lessons of history into modern constitutional law remains largely unresolved.2 True, almost everyone would agree with originalists that history can help answer some modern interpretive questions.3 But just about everyone also recognizes that relevant history does not always point in one direction: well-informed observers may dispute the historical meaning of a constitution’s text, and their views may conflict with the way the