What "Text, History, and Tradition" Matter in Construing the Constitution?

Abstract

The Supreme Court has long employed “text, history, and tradition” to determine the extent of, and exceptions to, certain constitutional rights, e.g., the right to confrontation and to a criminal jury. This interpretative tool will likely play a prominent role in the Court’s emerging Second Amendment jurisprudence.

This article seeks to explore just what text, history, and tradition matter for interpretative purposes. It suggests that text, history, and tradition are relevant both to textualism (because it illuminates how the relevant words would have been understood) and to original public understanding (because it illuminates the how the words were understood by the framing generations).

Determining the why provides an answer to the what, just what restrictions on a right should pass constitutional muster.

Pre-ratification text, history and tradition are relevant to the extent that Americans understood them as setting the boundaries of their rights. That is, such restrictions must have been applicable in the colonies (not all common law was, colonial legislatures and courts got to pick and choose) and not have been seen as something the superseded and surpassed by the American concept of the right.

Post-ratification text, history, and tradition restrictions of a right should be relevant to the extent the restrictions were widely known, and accepted, at a point reasonably close in time to the ratification. It should not suffice that a restriction was “not unknown”; restrictions that were not a matter of common knowledge could not have played a role in the popular support for ratification.

Keywords: constitution, second amendment, fourteenth amendment, right to arms

JEL Classification: K19,K49,Z18