On the Logic of History and Tradition in Constitutional Rights Cases

Abstract

Questions of judicial reliance on history and tradition have been prompted by several recent Supreme Court cases, in which the Court has not merely emphasized, but absolutized, history and tradition. Absolutism in this sense refers to judicial language evidently requiring the relevant party to show, in every case, sufficient validation for their position in history and tradition. The requirement for such a showing of historical and traditional support is thus apparently exceptionless, and in that sense absolute.

It is on this absolute, or exceptionless, requirement of sufficient support for a party’s claim, specifically in history and tradition, that this Article focuses. Immediately below, the Article examines the role of history and tradition in the Court’s most recent case law, successively addressing the law of substantive due process rights; the law of gun ownership and related rights-claims under the Second Amendment; the scope, limits, and requirements of the Establishment Clause; and some important dimensions of free speech rights. The Article then addresses broader issues of the proper role and limits of attempts to absolutize requirements of history and tradition in the context of rights-claims, including claims for rights that are themselves thought to be absolute and exceptionless.

Keywords: rights, history, tradition, First Amendment, speech, Second Amendment, substantive due process, religion, Establishment Clause

JEL Classification: K10, K30