Constructive Constitutional History and Habeas Corpus Today

This Essay uses Professor Amanda Tyler’s book, Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay, to sketch the outlines of an approach to constitutional history for non-originalists – one called constructive constitutional history. Use of the term “constructive” to describe a constitutional history for non-originalists reflects a variety of considerations. First, a constructive history portrays the framers as they saw themselves: as builders. They were building a “new order for the ages,” a machine that would “go of itself,” a complex set of government institutions that would doubtless develop in new and unexpected ways. Second, the term constructive conveys the idea, common among constitutional historians, that the meaning of the Constitution reflects the constructions and practices and layers of meaning that lawyers, judges, legislators, and presidents have adopted over the decades. Third, the idea of a constructive constitutional history calls to mind the constructivist approach to constitutional interpretation that Professor Richard Fallon has advanced and refined over a brilliant career. For Fallon, interpreters must offer an interpretation that takes account of—that coheres or “fits” with—a whole range of interpretive considerations, including the lessons of text, history, prior decisional law, and institutional developments.