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The History Boys

Posted Aug 1, 2008, 08:00 am CDT
By David G. Savage

In the term’s two most momentous decisions—on the reach of habeas corpus and on the meaning of the Second Amend­ment—the justices delved deeply into English history, determined to show how those legal concepts were originally understood.

Speaking from the bench, as well as in their written opinions, they quoted English precedents and writings from the time. History proved an uncertain guide, however. While all the justices said they relied on the original understanding, they split 5-4 in both cases on how to interpret it.

THE REACH OF HABEAS

In the habeas corpus case, Boumediene v. Bush, Justice Anthony M. Kennedy cited English cases involving Spanish sailors and African slaves who sought their freedom through a writ of habeas corpus. This… Continue reading...

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