The Lost History of "History and Tradition"

Abstract

The Supreme Court has decided one blockbuster after another by appeal to “history and tradition,” deploying this trope to remake key features of the constitutional landscape: from overturning Roe to abolishing affirmative action, from narrowing the scope of public accommodations to widening the margin for church/state entanglements. The Court says that its history-and-tradition test emerged fully formed in 1997 from an assisted-suicide case that was designed to rein in the drift toward living constitutionalism under the Warren and Burger Courts. This origin story is compelling. The problem is it isn’t true—not where the test came or even what it is. That narrative erases decades of social movement conflict that this Article is the first to excavate. It marshals original archives to reveal that the history-and-tradition test was fashioned from the crucible of earlier struggles: over the value of deep and more recent history, over which communities and what kind of evidence define tradition, and, ultimately, over the role of America’s past in our constitutional present.

The contours of this debate were sharpened across doctrines and eras, inside the courts and beyond them. Recovering this history uncovers a rival vision of the history-and-tradition test—not entrenched but evolving. Taking seriously this dynamic alternative makes three contributions. First, it casts doubt on major decisions about race, abortion, guns, and God, while challenging the fixed-in-time conception of traditionalism these rulings stand on. Second, the more adaptive version of history and tradition sheds light on puzzles including the levels-of-generality problem, the constitutional progressive response to charges of judicial activism, and how a modern conservative legal coalition was forged out of fierce divisions over originalist methods and outcomes. Finally, that lost method bears surprising implications for claims that span the ideological spectrum: from fetal rights and gay marriage to gender-affirming care and conversion therapy. For instance, entrenched history and tradition probably wouldn’t operate to protect widely accepted rights such as interracial marriage and medical refusal. Whereas evolving traditionalism could protect yet-unrecognized rights that it wouldn’t protect right now, looking ahead to a sustained future that made a custom of aid in dying or assisted reproduction.

Keywords: traditionalism, originalism, levels of generality, social movement politics, Federalist Society, Alliance Defending Freedom, abortion, fetal rights, gun control, religious liberty, medical refusal, aid in dying, assisted reproduction, gender-affirming care