Graduation Year
2020
Document Type
Open Access Senior Thesis
Degree Name
Bachelor of Arts
Department
Politics
Reader 1
Amanda Hollis-Brusky
Terms of Use & License Information
Rights Information
© 2020 Isaac Q Cui
Abstract
Vijayakumar Thuraissigiam, a Tamil citizen of Sri Lanka, was apprehended after unlawfully entering the United States. Placed in expedited removal proceedings, which allows for streamlined deportation, Thuraissigiam sought asylum. However, he was found to lack the requisite credible fear of persecution based on a protected status. He petitioned for a writ of habeas corpus to review the legality of that determination. But because the expedited removal process limits federal habeas jurisdiction, his petition was dismissed. He claims that limitation violates the U.S. Constitution’s Suspension Clause, which provides: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” The Supreme Court agreed to hear his case, and its decision is expected by June 2020.
The Court’s Suspension Clause jurisprudence has long been guided by historical inquiry into the nature of habeas in English law. This Thesis examines how history should inform the creation of law by studying the uses of history in habeas jurisprudence. I identify three distinct ways of invoking history to write law, assess their desirability, and argue that jurisprudential reliance on history tends to distort the historical record. I then tell two histories of the so-called Great Writ—one that emphasizes its role in progressively protecting liberty and another that emphasizes the distribution of power among different institutions in medieval and early modern England. Though the latter is more historically accurate, I show through juxtaposing these contrasting narratives that ambiguities complicate the application of historical practice to constitutional jurisprudence. I argue, therefore, that history generally cannot cabin judicial discretion more than other traditional tools of legal analysis (namely, precedent). This Thesis concludes by returning to Thuraissigiam’s case and arguing that history cannot determine the outcome. History, I claim, will permeate the Court’s opinion, even as it will not meaningfully constrain the decision.
Recommended Citation
Cui, Isaac, "Habeas Corpus and the Politics of History" (2020). Pomona Senior Theses. 317.
https://scholarship.claremont.edu/pomona_theses/317
Included in
Constitutional Law Commons, Legal History Commons, Supreme Court of the United States Commons
