Supreme Math: 1791-1788=100

In oral argument in the U.S. Supreme Court today, Justice Sonia Sotomayor said,

So that’s a vastly different question of whether the Suspension Clause –which predated the Due Process Clause by 100 years –the Suspension Clause, at the time, it was viewed as permitting anyone who had a legal claim to stay to file a habeas petition.

100 years?

The argument in question is Dept. of Homeland Security v. Thuraissigiam, No. 19-161. The passage quoted above is on page 5 of the transcript, page 6 of the PDF file.

This is a purely federal case on immigration. No state or local governments are involved. The relevant Due Process Clause is therefore the one in the Fifth Amendment, applicable to the federal government. That Amendment was ratified, along with the rest of the Bill of Rights, in 1791.

The Suspension Clause, limiting the suspension of the writ of habeas corpus, is in the original Constitution, Article I, § 9, 2d para. The Constitution was ratified by a sufficient number of states to hold elections and get the government started in 1788. (North Carolina and Rhode Island straggled in during the next two years.)

So the Suspension Clause predates the Due Process Clause by 3 years, not 100.

The other Due Process Clause, “nor shall any State deprive any person of life, liberty, or property without due process of law,” is in the Fourteenth Amendment. It was ratified 80 years after the Constitution, in 1868.

Everyone who speaks extemporaneously in public has a gaffe or two to his credit, or debit. I have my share. (No, I will not tell you what they are.) Even the Supremes are not immune.

On the merits, the case looks close. A 5-4 is certainly a possibility. CJLF’s brief in the case is here.