Amanda Tyler and the Original Meaning of the Habeas Corpus Suspension Clause

Nonoriginalism is not necessarily more protective of rights. It can also choose not to protect certain rights — namely, those in the Constitution. For example, the Supreme Court continues to inadequately protect rights under the Contracts Clause. Another example is Plessy v. Ferguson, where the Supreme Court allowed a state law segregating railroad cars to be enforced, even though the much better reading of the Constitution was that the contract rights at issue could not be constitutionally infringed by a race based law. Another example involves the Korematsu case, which concerned the internment of Japanese-Americans during World War II. One common way of viewing the internment is that it involved a violation of the Equal Protection Clause, because a racial/ethnic group was targeted. But a little reading shows that the Equal Protection Clause does not apply against the federal government. And therefore it seems that the Constitution’s original meaning did not…

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