Abstract
I. Introduction Legal commentators continue to debate about the proper use of history in constitutional cases. 1 Since the 1980s, much of the debate has been shaped by the "original meaning" approach favored by many conservatives, including Justices Antonin Scalia and Clarence Thomas, Judge Robert Bork, and former Reagan Attorney General Edwin Meese. Originalists argue that the Supreme Court should use history mainly to identify and implement the "original understanding" of the Framers. 2 An example of this approach is the dissenting opinion of Justice Scalia in Hamdi v. Rumsfeld, 3 in which Scalia relied heavily on history to argue that a citizen designated as an "enemy combatant" could not be held indefinitely by the Government. 4 To support this conclusion, Scalia examined the legal systems of England and America before the Founding, to determine how those systems had traditionally treated citizens accused of aiding the enemy during wartime. 5 Scalia determined that such citizens had traditionally been subject to criminal prosecution; that when such prosecutions were impractical due to military exigencies, the traditional remedy was to suspend the writ of habeas corpus; and that these had been the only two alternatives - that is, that indefinite imprisonment was not an available option. 6 Based on this history, Scalia concluded that it was not the intent of the Framers to give the Government the power to hold enemy combatants for an indefinite period. 7 Scalia's approach in Hamdi is an example of the originalist approach, which looks ...