Copyright 2023 by Randy E. Barnett & Lawrence B. Solum Printed in U.S.A.
Vol. 118, No. 2
433
ORIGINALISM AFTER DOBBS, BRUEN,
AND KENNEDY: THE ROLE OF HISTORY
AND TRADITION
Randy E. Barnett & Lawrence B. Solum
ABSTRACT—In three recent cases, the constitutional concepts of history and
tradition have played important roles in the reasoning of the Supreme Court.
Dobbs v. Jackson Women’s Health Organization relied on history and
tradition to overrule Roe v. Wade. New York State Rifle & Pistol Ass’n v.
Bruen articulated a history and tradition test for the validity of laws
regulating the right to bear arms recognized by the Second Amendment.
Kennedy v. Bremerton School District looked to history and tradition in
formulating the test for the consistency of state action with the Establishment
Clause.
These cases raise important questions about the Court’s approach to
constitutional interpretation and construction. Do Dobbs, Bruen, and
Kennedy represent a new theory of constitutional interpretation and
construction based on history and tradition? In the alternative, should the
references to history and tradition in these opinions be understood through
the lens of Constitutional Pluralism as modalities of constitutional argument?
Finally, can the use of history and tradition in Dobbs, Bruen, and Kennedy
be reconciled with the Supreme Court’s embrace of Public Meaning
Originalism?
Part I of this Article elucidates the constitutional concepts of history
and tradition. Part II lays out four distinct roles that history and tradition can
play: (1) as evidence of original meaning and purpose, (2) as modalities of
constitutional argument within a constitutional pluralist framework, (3) as a
novel constitutional theory, which we call “Historical Traditionalism,” and
(4) as an implementing doctrine. Part III investigates the roles of history and
tradition in Dobbs, Bruen, and Kennedy. Part IV articulates a comprehensive
strategy for the incorporation of history and tradition in constitutional
jurisprudence.
AUTHORS—Randy E. Barnett: Patrick Hotung Professor of Constitutional
Law, Georgetown University Law Center; Faculty Director, Georgetown
Center for the Constitution. Lawrence B. Solum: William L. Matheson and
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
434
Robert M. Morgenthau Distinguished Professor of Law and Douglas D.
Drysdale Research Professor of Law, University of Virginia School of Law.
INTRODUCTION ............................................................................................................. 435
I. HISTORY AND TRADITION AS CONSTITUTIONAL CONCEPTS .................................. 440
A. History ......................................................................................................... 440
B. Tradition ...................................................................................................... 442
C. The Relationship Between History and Tradition ....................................... 445
II. FOUR ROLES FOR HISTORY AND TRADITION IN CONSTITUTIONAL THEORY ........... 445
A. History and Tradition Within Public Meaning Originalism ....................... 446
B. History and Tradition as Modalities Within Constitutional Pluralism ....... 451
C. Historical Traditionalism as an Independent Constitutional Theory ......... 452
D. History and Tradition as Implementing Doctrines ..................................... 454
III. HISTORY AND TRADITION IN RECENT DECISIONS OF THE SUPREME COURT ........... 455
A. Dobbs v. Jackson Women’s Health Organization ....................................... 455
B. New York State Rifle & Pistol Ass’n v. Bruen ........................................... 462
C. Kennedy v. Bremerton School District ....................................................... 472
D. Making Sense of History and Tradition in the October 2021 Term
of the Supreme Court .................................................................................. 476
IV. AN ORIGINALIST APPROACH TO HISTORY AND TRADITION ................................... 478
A. Widely Shared Justifications for Originalism ............................................. 479
B. Three Essential Originalist Roles for History and Tradition ...................... 480
C. Originalism and Stare Decisis .................................................................... 482
D. History and Tradition on a Collegial Court Without
an Originalist Majority ............................................................................... 484
E. The Gravitational Force of Originalism ..................................................... 488
CONCLUSION ................................................................................................................ 492
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435
INTRODUCTION
In three recent cases, the constitutional concepts of history and tradition
have played important roles in the reasoning of the Supreme Court.
1
Dobbs
v. Jackson Women’s Health Organization
2
relied on history and tradition to
overrule Roe v. Wade.
3
New York State Rifle & Pistol Ass’n v. Bruen
4
articulated a history and tradition test for the validity of laws regulating the
right to bear arms recognized by the Second Amendment. Kennedy v.
Bremerton School District
5
utilizes history and tradition, but its brief
discussion of those concepts is ultimately unclear.
These cases raise important questions about the Court’s approach to
constitutional interpretation and construction. Do Dobbs, Bruen, and
Kennedy represent a new theory of constitutional interpretation and
construction based on history and tradition? In the alternative, should the
references to history and tradition in these opinions be understood through
the lens of Constitutional Pluralism as modalities of constitutional argument?
Finally, can the use of history and tradition in Dobbs, Bruen, and Kennedy
be reconciled with the Supreme Court’s embrace of originalism?
6
In this Article, we will neither support nor criticize the outcomes of
Dobbs, Bruen, or Kennedy. Instead, our aims are to describe the role that
history and tradition did play in the three cases and explain the role that
history and tradition should play in originalist constitutional theory. We will
argue that judges should embrace both history and tradition within an
originalist framework but should reject the nonoriginalist idea that history
and tradition can justify departures from the original public meaning of the
constitutional text.
1
For commentary and discussion of this phenomenon, see generally Rachel Reed, Should the
Supreme Court Care About Tradition?, HARVARD L. TODAY (Nov. 18, 2022), hls.harvard.edu/
today/should-the-supreme-court-care-about-tradition [https://perma.cc/SPR7-Z2DY], which discusses
the Court’s reliance on history and tradition in Dobbs and Bruen; Clay Calvert & Mary-Rose Papandrea,
The End of Balancing? Text, History & Tradition in First Amendment Speech Cases After Bruen,
18 DUKE J. CONST. L. & PUB. POL’Y (2023) (forthcoming), which examines the impact of the Court’s
increasing reliance on history and tradition on First Amendment free-speech jurisprudence; and Chad
Flanders, Flag Bruen-ing: Texas v. Johnson in Light of The Supreme Court’s 2021–22 Term, 2022 U.
ILL. L. REV. ONLINE 94, which explores how the Court might reexamine past cases like Texas v. Johnson
using Bruen’s text-and-history constitutional interpretation method.
2
142 S. Ct. 2228, 2242 (2022).
3
410 U.S. 113, 154–66 (1973).
4
142 S. Ct. 2111, 2156 (2022).
5
142 S. Ct. 2407, 2434 (2022) (Sotomayor, J., dissenting).
6
The influence of originalism on the Supreme Court in recent years has been widely discussed. See,
e.g., David Cole, The Supreme Court Embraces Originalism—and All Its Flaws, WASH. POST (June 30,
2022), www.washingtonpost.com/opinions/2022/06/30/supreme-court-originalism-constitution/
[https://perma.cc/G2VF-B4AY]. Whether a majority of the current Supreme Court embraces originalism
is a complex question that we do not address here.
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436
Our analysis will distinguish four concepts: (1) historical practice,
(2) historical doctrines, (3) historical narratives, and (4) tradition. Each of
these concepts should play a distinct role in judicial decision-making under
an originalism framework. Historical practice provides important evidence
of original meaning; historical doctrines can do this as well. Historical
narratives provide context that both disambiguates and enriches the semantic
meaning of the constitutional text. Tradition is an elusive concept that can
play a variety of roles, including the important work of crafting
implementing doctrines for constitutional text that underdetermines the legal
content of constitutional doctrines.
When we turn to originalism, we focus on Public Meaning
Originalism,
7
the most prominent member of the originalist family of
constitutional theories.
8
This form of originalism includes three central ideas:
(1) The Fixation Thesis: The original meaning of the constitutional text is
fixed at the time each provision is framed and ratified;
9
(2) The Public Meaning Thesis: The best understanding of original
meaning is the communicative content of the constitutional text that
was accessible to the public at the time each provision was framed and
ratified (its original public meaning);
10
and
7
There is substantial literature that articulates and defends Public Meaning Originalism. For
Professor Barnett’s work on the topic, see, for example, RANDY E. BARNETT, RESTORING THE LOST
CONSTITUTION 89–117 (rev. ed. 2014), and Randy E. Barnett, An Originalism for Nonoriginalists,
45 LOY. L. REV. 611, 620–29, 648–54 (1999). For Professor Solum’s work on the topic, see, for example,
Lawrence B. Solum, Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great
Debate, 113 NW. U. L. REV. 1243, 1246 (2019) [hereinafter Solum, Originalism Versus Living
Constitutionalism]; Lawrence B. Solum, The Public Meaning Thesis: An Originalist Theory of
Constitutional Meaning, 101 B.U. L. REV. 1953 (2021) [hereinafter Solum, Public Meaning
Thesis]; Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in Original Meaning,
91 NOTRE DAME L. REV. 1, 4, 27–29 (2015) [hereinafter Solum, Fixation Thesis]; Lawrence B.
Solum, Originalism and Constitutional Construction, 82 FORDHAM L. REV. 453, 459–60 (2013)
[hereinafter Solum, Originalism and Constitutional Construction]; Lawrence B. Solum, The Constraint
Principle: Original Meaning and Constitutional Practice (Apr. 3, 2019) (unpublished manuscript),
papers.ssrn.com/a=2940215 [https://perma.cc/5WB3-N4FP] [hereinafter Solum, Constraint
Principle].
8
The originalist family of constitutional theories also includes Original Intentions Originalism,
Original Methods Originalism, and Original Law Originalism. For Original Intentions Originalism, see
Larry Alexander, Simple-Minded Originalism, in THE CHALLENGE OF ORIGINALISM 87 (Grant Huscroft
& Bradley W. Miller eds., 2011). For Original Methods Originalism, see John O. McGinnis & Michael
B. Rappaport, The Constitution and the Language of the Law, 59 WM. & MARY L. REV. 1321, 1400–11
(2018), and John O. McGinnis & Michael B. Rappaport, Original Methods Originalism: A New Theory
of Interpretation and the Case Against Construction, 103 NW. U. L. REV. 751 (2009). On Original
Law Originalism, see William Baude & Stephen E. Sachs, Grounding Originalism, 113 NW. U. L. REV.
1455 (2019).
9
See Solum, Fixation Thesis, supra note 7, at 1.
10
See Solum, Public Meaning Thesis, supra note 7, at 1957.
118:433 (2023) Originalism After Dobbs, Bruen, and Kennedy
437
(3) The Constraint Principle: Constitutional practice ought to be consistent
with, fully expressive of, and fairly traceable to the original public
meaning of the constitutional text.
11
Together, these three ideas express the core tenets of Public Meaning
Originalism.
12
In addition, many public meaning originalists embrace the
interpretation–construction distinction,
13
which can be summarized by the
following stipulated definitions:
Constitutional Interpretation: The activity that discerns the meaning
(communicative content) of the constitutional text.
Constitutional Construction: The activity that determines the legal effect of the
constitutional text, including the decision of constitutional cases and the
crafting of constitutional doctrines.
Although some constitutional provisions are precise and provide bright-
line rules (e.g., the thirty-five-year age qualification for the President),
14
others may be moderately underdeterminate (e.g., the word “unreasonable”
in the Fourth Amendment).
15
When the constitutional text is
underdeterminate, some method of constitutional construction is required to
give the text legal effect in what can be called the “construction zone.”
Sometimes this activity is labeled the creation of “implementing doctrines.”
16
11
See Solum, Constraint Principle, supra note 7, at 3.
12
A complete statement of Public Meaning Originalism would encompass several other ideas,
including but not limited to the claims that (1) the communicative content is discoverable, (2) the
communicative content is sufficiently rich to determine a substantial amount of constitutional doctrine,
and (3) there is a feasible pathway from the status quo to a constitutional practice that is substantially
ordered by originalism.
13
Solum, Originalism and Constitutional Construction, supra note 7, at 457; Lawrence B. Solum,
The Interpretation-Construction Distinction, 27 CONST. COMMENT. 95, 100–18 (2010); Randy E.
Barnett, Interpretation and Construction, 34 HARV. J.L. & PUB. POL’Y 65, 65–66 (2011).
14
U.S. CONST. art. II, § 1 (“[N]either shall any Person be eligible to that Office who shall not have
attained to the Age of thirty five Years . . . .”).
15
Id. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated . . . .”). See Lawrence B. Solum, On the
Indeterminacy Crisis: Critiquing Critical Dogma, 54 U. CHI. L. REV. 462, 473 (1987) (“The law is
determinate with respect to a given case if and only if the set of results that can be squared with the legal
materials contains one and only one result. The law is indeterminate with respect to a given case if and
only if the set of results in the case that can be squared with the legal materials is identical with the set of
all imaginable results. The law is underdeterminate with respect to a given case if and only if the set of
results in the case that can be squared with the legal materials is a nonidentical subset of the set of all
imaginable results.”).
16
See Richard H. Fallon Jr., Appraising the Significance of the Subjects and Objects of the
Constitution: A Case Study in Textual and Historical Revisionism, 16 U. PA. J. CONST. L. 453, 462–70
(2013) (discussing the role of implementing doctrines). See generally RICHARD H. FALLON JR., LAW AND
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
438
While the existence of construction zones is contested by some originalist
scholars,
17
the need for implementing doctrines to give effect to the meaning
of the Constitution is the subject of almost universal agreement.
18
Professors Randy Barnett and Evan Bernick have articulated an
originalist framework for the development of implementing doctrines in the
construction zone.
19
Their theory requires judges to both identify the original
purpose(s) or function(s) of the relevant constitutional provisions and act in
good faith by crafting implementing doctrines that are consistent with both
the original meaning of the text and the original purpose and function of the
relevant constitutional provisions.
20
To be faithful to a written constitution is
to adhere to the original purposes or functions for which its provisions were
adopted.
21
This is distinct from adhering to the purposes of the present-day
constitutional decisionmaker and requires the same type of historical inquiry
as required to identify the original meaning of the text.
22
This approach to
constitutional construction provides a role for a form of “original intent”—
albeit one that must be consistent with, and cannot supersede or trump, the
original public meaning.
Professor Lawrence Solum has provided a framework for originalist
methodology that instructs how to determine original public meaning.
23
The
framework embraces three primary methods for discerning the original
LEGITIMACY IN THE SUPREME COURT 68 (2001) (referring to “implementation through judicially crafted
doctrines.”); id. at 100 (“The Justices have . . . acknowledged an obligation to make reasonable efforts to
achieve legal clarity by crafting and constructing a number of relatively determinate doctrines to
implement vague constitutional language.”).
17
In particular, Professors McGinnis and Rappaport have argued that the Constitution is written in
the language of the law. See McGinnis & Rappaport, The Language of the Law, supra note 8. As a
consequence, their position implies that the communicative content of the constitutional text either fully
determines the legal content of constitutional doctrine or almost does so.
18
We are not aware of any originalist constitutional scholars who explicitly reject the need for
implementing doctrines. Some originalists may believe that implementing doctrines can be derived by a
method of deduction from the constitutional text, though we are not familiar with any scholars who say
this explicitly.
19
Randy E. Barnett & Evan D. Bernick, The Letter and the Spirit: A Unified Theory of Originalism,
107 GEO. L.J. 1 (2018). Professor Solum has not committed to a theory of constitutional construction for
the construction zone.
20
Id. at 33–36.
21
Id. at 36–37.
22
Id. at 52. (“[T]he Constitution’s letter and spirit can both be ascertained empirically by
investigating similar evidence . . . .”).
23
See, e.g., Lawrence B. Solum, Triangulating Public Meaning: Corpus Linguistics, Immersion, and
the Constitutional Record, 2017 BYU L. REV. 1621 (proposing the “Method of Triangulation” approach
to determining original meaning, which employs three methods—the method of corpus linguistics, the
originalist method of immersion, and the method of studying the constitutional record—that work
together by confirming or questioning the results reached by the other methods); Lawrence B. Solum,
Originalist Methodology, 84 U. CHI. L. REV. 269 (2017) (describing originalist methodologies for
constitutional interpretation and construction).
118:433 (2023) Originalism After Dobbs, Bruen, and Kennedy
439
public meaning and the original functions and purposes of the constitutional
text:
The Constitutional Record: Originalist judges and scholars should consider all
of the relevant evidence provided by the constitutional record. Such evidence
includes, but is not limited to, the general historical background in which
provisions were framed and ratified, records of the framing or drafting of the
relevant provisions, public debates about the relevant provisions, ratification
debates, early implementation of the relevant provisions, and early judicial
decisions interpreting the provisions.
24
Importantly, jurists and scholars should
consider all relevant evidence from the record and avoid cherry-picking
evidence that favors a preferred outcome.
25
Historical Linguistics: Originalist judges and scholars should consider direct
evidence of patterns of usage during the framing and ratification of the relevant
constitutional provisions. Such evidence includes the use of corpus linguistics,
which uses large databases to identify patterns of usage that constitute the
semantic meaning of words and phrases contained in the text.
26
Originalist Immersion: Originalist scholars should acquire deep knowledge of
the historical period in which a constitutional provision was framed and ratified,
either through primary sources or through secondary sources that report the
results of such immersion.
27
Each of these three methods can be checked against the others. When
all three methods agree, they provide strong support for an originalist
interpretation of the constitutional text.
28
The overall aim of a rigorous
originalist methodology is the reconstruction of the communicative content
of the constitutional text and the reasons for its adoption that best explains
all of the relevant evidence considered as a whole.
29
As our analysis will
show, Dobbs, Bruen, and Kennedy execute originalist analysis in various
ways, but none of the three opinions fully employs the originalist methods
outlined here.
In Part I, we investigate “history” and “tradition” as constitutional
concepts. In Part II, we lay out four distinct roles that history and tradition
24
Solum, Triangulating Public Meaning, supra note 23, at 1655.
25
See id. at 1675 (describing the potential problem of cherry-picking).
26
Id. at 1643. We have used the phrase “historical linguistics” in the text, rather than “corpus
linguistics,” to express the fact that historical linguistics employs several tools including but not limited
to corpus linguistics.
27
Id. at 1649.
28
Id. at 1625.
29
We are appealing, here, to the idea of inference to the best explanation (abduction). For an
introductory account, see Igor Douven, Abduction, in THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY
(Edward N. Zalta ed., Summer ed. 2021), plato.stanford.edu/archives/sum2021/entries/abduction
[https://perma.cc/NBQ6-775Q].
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
440
can play: (1) as evidence of original meaning and purpose, (2) as modalities
of constitutional argument within a constitutional pluralist framework, (3) as
a novel constitutional theory, which we call “Historical Traditionalism,” and
(4) as an implementing doctrine. In Part III, we discuss the role of history
and tradition in Dobbs, Bruen, and Kennedy. In Part IV, we suggest an
originalist approach to history and tradition.
I. HISTORY AND TRADITION AS CONSTITUTIONAL CONCEPTS
The Supreme Court frequently uses the words “history” and “tradition,”
but rarely defines what they mean. Our investigation begins with conceptual
archaeology. What is meant by “history” and “tradition” when those terms
are used by constitutional theorists and by judges in cases like Dobbs, Bruen,
and Kennedy?
A. History
The word “history” is ambiguous when used by regular folk in ordinary
conversations. And it seems to take on new and special meanings in Supreme
Court opinions that rely on history to make constitutional arguments. We
believe that the word “history” is used in at least three distinct ways in
constitutional discourse:
Historical Practice: We will use the phrase “historical practice” to refer to
actions by executive officials and legislatures that have constitutional
implications. For example, legislation enacted by the First Congress may
provide evidence relevant to identifying the public meaning of “legislative
Powers” in Article I.
30
Historical Doctrine: Judicial decisions are part of history and can shed light on
constitutional meaning and purpose that is distinct from their precedential (stare
decisis) effect. We call this “historical doctrine.” Early decisions of the
Supreme Court may provide evidence of the meaning and purposes of
constitutional provisions. For example, early judicial decisions can be relevant
to identifying the public meaning of “the judicial power” in Article III.
31
Historical Narratives: We will use the phrase “historical narratives” to refer to
the construction of stories that recount the origins, purposes, development, or
consequences of constitutional actions and events—and any combination of
these. For example, a historical narrative might situate Section One of the
Fourteenth Amendment
32
in the context of Reconstruction, identify the
30
U.S. CONST. art. I.
31
Id. art. III.
32
Id. amend. XIV.
118:433 (2023) Originalism After Dobbs, Bruen, and Kennedy
441
purposes for which its provisions were drafted, and discuss the development of
constitutional doctrines associated with its specific provisions.
33
All three uses of “history” are important, but the role of historical
narratives requires further clarification. In the context of constitutional
discourse, historical narratives can perform at least three distinct functions
(causal, normative, and hermeneutic):
Causal Historical Narratives: Occasionally, a narrative is used to identify the
causes of constitutionally significant actions and events. In the context of the
Constitution, causal narratives frequently identify the purposes of constitutional
actors as the causal explanations for constitutional actions and events. For
example, a causal narrative might explain that the original purpose of those who
sought textual protection of “the right of the people to keep and bear arms” in
the Second Amendment was to preserve and secure from future encroachment
the capacity of individuals to engage in personal and collective self-defense and
to ensure the future viability of the general militia comprised of the citizenry.
34
Normative Historical Narratives: Sometimes, the point of a historical narrative
is normative. Normative historical narratives aim to elicit a moral or legal
evaluation of some constitutional action or event. Such narratives can be
vindicating (eliciting a positive evaluation) or debunking (eliciting a negative
evaluation). For example, a narrative that tied the Electoral College to the
interests of slaveowners would be a debunking narrative; whereas a narrative
that explained that the Nineteenth Amendment was a response to a movement
for the fundamental human rights of women would be a vindicating narrative.
33
See, e.g., Slaughter-House Cases, 83 U.S. 36, 67–68 (1872) (“The most cursory glance at [the first
twelve amendments] discloses a unity of purpose, when taken in connection with the history of the times,
which cannot fail to have an important bearing on any question of doubt concerning their true meaning.
Nor can such doubts, when any reasonably exist, be safely and rationally solved without a reference to
that history, for in it is found the occasion and the necessity for recurring again to the great source of
power in this country, the people of the States, for additional guarantees of human rights, additional
powers to the Federal government; additional restraints upon those of the States. Fortunately, that history
is fresh within the memory of us all, and its leading features, as they bear upon the matter before us, free
from doubt.”).
34
See, e.g., United States v. Miller, 307 U.S. 174, 178–79 (1939) (“With obvious purpose to assure
the continuation and render possible the effectiveness of such [Militia] forces, the declaration and
guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
The Militia which the States were expected to maintain and train is set in contrast with Troops which they
were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored
standing armies; the common view was that adequate defense of country and laws could be secured
through the Militia—civilians primarily, soldiers on occasion. The signification attributed to the term
Militia appears from the debates in the Convention, the history and legislation of Colonies and States,
and the writings of approved commentators. These show plainly enough that the Militia comprised all
males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for
military discipline.’ And further, that ordinarily, when called for service these men were expected to
appear bearing arms supplied by themselves and of the kind in common use at the time.”).
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
442
Hermeneutic Historical Narratives: In constitutional discourse, narratives
frequently have an interpretive function. That is, the point of a hermeneutic
narrative would be to establish the meaning (communicative content) of a
constitutional provision. For example, a narrative about the failure of state
governments to protect freedmen from violence, theft, and fraud might establish
that the original public meaning of the Equal Protection Clause was to provide
the same legal protections against rights invasions to the former slaves and other
persons as were previously provided to white citizens.
35
When judges engage in constitutional interpretation, the third form of
historical narrative is particularly important. Hermeneutic narratives bear
directly on the meaning of the words and phrases in the constitutional text
and provide relevant context that may disambiguate and enrich the semantic
meaning of the text.
B. Tradition
Like “history,” the word “tradition” appears frequently in constitutional
discourse.
36
But what exactly is “tradition”? Formulating a clear and precise
definition of this elusive concept is not an easy task. One way to begin is
with existing definitions. For example, the Oxford English Dictionary
includes the following definitions:
A belief, statement, custom, etc., handed down by non-written means (esp. word
of mouth, or practice) from generation to generation; such beliefs, etc.,
considered collectively.
Any practice or custom which is generally accepted and has been established
for some time within a society, social group, etc. (in later use not necessarily
one passed down from generation to generation); such practices, etc.,
considered collectively.
37
The relevant sense of “tradition” in constitutional discourse seems to be
the one identified in the second definition. Constitutional traditions are
practices or customs that are generally accepted in the United States, and
which have been established for some time. One example of such a tradition
35
See, e.g., Christopher R. Green, The Original Sense of the (Equal) Protection Clause: Pre-
Enactment History, 19 GEO. MASON U. CIV. RTS. L.J. 1, 40 (2008) (quoting the preamble to the first
Reconstruction Act which provides that “no legal State governments or adequate protection for life or
property now exists in the rebel States . . . and . . . it is necessary that peace and good order should be
enforced in said States until loyal and republican State governments can be legally established”).
36
For example, the search string “adv: tradition /p constitution” produced 346 hits in the Supreme
Court database on Westlaw when run on December 30, 2022. The search string “adv: history /p
constitution” produced 1347 hits when run on the same day.
37
Tradition, OXFORD ENGLISH DICTIONARY ONLINE, www.oed.com/viewdictionaryentry/
Entry/204302 [https://perma.cc/GBA2-26BA].
118:433 (2023) Originalism After Dobbs, Bruen, and Kennedy
443
might be the State of the Union Address, delivered orally by the President to
the members of the House of Representatives and the Senate. The
Constitution itself provides that the President “shall from time to time give
to the Congress Information of the State of the Union, and recommend to
their Consideration such Measures as he shall judge necessary and
expedient.”
38
The text does not require an annual in-person address that is
delivered orally, but there is now such a tradition of the President being
invited to deliver the State of the Union Address.
39
Inevitably, the ordinary meaning of “tradition” is imprecise and open-
textured. Some traditions may involve social norms; others may involve
judicial, legislative, or executive practices. Some traditions may be
established by very long usages—centuries or many decades—but it also
makes sense to think of a widely established, but relatively new, custom as
a tradition. For example, since the end of World War II in 1945, presidents
of both parties have initiated the use of military force outside the territory of
the United States without first asking Congress “to declare war.”
40
Over the
course of just a decade or two, this now-generally-accepted practice may
have come to constitute a tradition.
Professor Marc DeGirolami offers a clearer understanding of tradition
through his explication of the rise of what he calls “traditionalism:”
Traditionalism is . . . defined by two key elements: (1) concrete practices, rather
than principles, ideas, judicial precedents, and so on, as the determinants of
constitutional meaning and law; and (2) the endurance of those practices as a
composite of their age, longevity, and density, evidence for which includes the
practice’s use before, during, and after enactment of a constitutional provision.
41
Professor DeGirolami’s conception of tradition emphasizes the priority of
social practices over official acts:
Traditionalism . . . rejects abstract principles or values as the primary
determinants of meaning. But it also does not depend upon constitutional
caselaw, judicial outputs, stare decisis, reasoned judicial elaboration, and
the like, to ground its method. . . . [O]ne of its primary foci is “popular
practices” (of governments or citizens) rather than “legal-professional”
practices: traditionalism gives “strong weight to the concurrence of many
38
U.S. CONST. art. II, § III, cl. 1.
39
For the history of the State of the Union address, see State of the Union Address, HISTORY, ART
& ARCHIVES OF THE U.S. HOUSE OF REPRESENTATIVES, history.house.gov/Institution/
SOTU/State-of-the-Union/ [https://perma.cc/8XL3-K34E].
40
U.S. CONST. art. I, § VIII, cl. 11; see John C. Yoo, The Continuation of Politics by Other Means:
The Original Understanding of War Powers, 84 CAL. L. REV. 167, 172 (1996).
41
Marc O. DeGirolami, Traditionalism Rising, J. CONTEMP. LEGAL ISSUES (forthcoming)
(manuscript at 6), papers.ssrn.com/a=4205351 [https://perma.cc/9Z7C-RBET].
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
444
geographically and temporally disparate sources, including those that are at
some distance (literal or figurative) from the conventional centers of political
or cultural power.”
42
Importantly, Professor DeGirolami’s understanding of traditionalism also
includes a three-dimensional formulation of the factors that determine the
existence and strength of a constitutionally salient tradition:
Age: “the antiquity of a practice.”
43
Longevity: “the continuity of the practice across time.”
44
Density: “the extent to which the practice was used or adopted across space.”
45
In our view, a constitutional tradition is strongest or most firmly established
when it has existed continuously for a very long time (more than a century)
throughout the United States. And if a practice is relatively new, fluctuating,
and confined to a particular locality, it would not be a tradition at all.
Professor DeGirolami’s three-dimensional understanding of tradition
provides criteria for the contrasting conception of a constitutional “outlier,”
which, by definition, cannot constitute a tradition.
46
An old practice might be
an outlier if it was discontinued or geographically isolated. However, a
relatively new practice which has not yet achieved the status of a tradition
should not be labeled an outlier if it has been established throughout the
United States for some continuous period.
According to Professor DeGirolami’s “traditionalist” approach, if a
practice constitutes a strong constitutional tradition, then it would have an
associated constitutional status.
47
For example, a traditionally exercised
power would be constitutionally valid, and a traditionally established right
would be constitutionally protected. Contrawise, if an exercise of a
governmental power is an outlier, it would be constitutionally suspect;
similarly, if an asserted right was an outlier, it would not be a candidate for
constitutional protection.
It is not clear whether Professor DeGirolami’s understanding of
traditionalism captures the notion of tradition that is operating in Supreme
Court decisions like Dobbs, Bruen, and Kennedy. But it has the virtue of
42
Id. at 7 (citing Michael P. O’Shea, The Concrete Second Amendment: Traditionalist Interpretation
and the Right to Keep and Bear Arms, 26 TEX. REV. L. & POL. 103, 107–08 (2021)).
43
Id.
44
Id.
45
Id. at 8.
46
Professor DeGirolami does not conceptualize the concept of an outlier, although he does use the
word “outlier.” Id. at 12, 25, 29. For scholarly discussion of the concept, see Justin Driver, Constitutional
Outliers, 81 U. CHI. L. REV. 929 (2014).
47
DeGirolami, supra note 41, at 6–7.
118:433 (2023) Originalism After Dobbs, Bruen, and Kennedy
445
providing a clear articulation of the concept of tradition. This concept can
then be used as a standard against which we can evaluate the use of tradition
in constitutional discourse.
C. The Relationship Between History and Tradition
In clarifying the proper role of history and tradition in constitutional
law, our first important claim is that history and tradition are conceptually
distinct. Tradition is often constituted by long-established historical practice
or historical doctrine; even a recently emerged tradition could be established
by a historical narrative. In other words, history provides evidence of the
existence of a tradition. But historical practices and doctrines are not the
same as traditions.
The three types of history—practice, doctrine, and narrative—interact
with tradition in different ways. By itself, the existence of a historical
practice or doctrine does not establish a tradition. For example, legislation
enacted by the First Congress might later be repealed and hence fail to
establish a tradition with respect to the subject of the legislation. This could
be true even if Congress’s action provides strong evidence of original
meaning. But historical narratives can identify the existence of an ongoing
tradition or the rise and fall of traditions that have gone by the wayside. For
example, while the First Congress established the first Bank of the United
States, that Bank’s charter was allowed to lapse in 1811.
48
The second Bank
of the United States was established in 1816.
49
After Andrew Jackson became
President in 1829, he vetoed the renewal of the second Bank’s charter. As a
result, the Bank closed its doors in 1836, remaining in business as strictly a
private bank until 1841.
50
Thus, when the Federal Reserve System was
established in 1913,
51
while there was historical practice that established a
precedent for such an entity, there was no longstanding and continuous
tradition supporting its establishment.
II. FOUR ROLES FOR HISTORY AND TRADITION
IN CONSTITUTIONAL THEORY
We now have an account of the various distinct ideas that can be
represented by the phrase “history and tradition.” Our next step is to identify
48
William J. Kambas, The Development of the U.S. Banking System: From Colonial Convenience to
National Necessity, 28 RUTGERS L. REC. 4 (2004).
49
Id.
50
Id.
51
Pub. L. No. 63-43, 38 Stat. 251 (1913) (codified as amended at 12 U.S.C. §§ 221–522). For the
history of the Federal Reserve System, see Peter Conti-Brown, The Institutions of Federal Reserve
Independence, 32 YALE J. ON REG. 257, 276–80 (2015).
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
446
four roles that history, tradition, or their conjunction can play in
constitutional jurisprudence.
The first three roles that we identify operate at the level of constitutional
theory. First, history and tradition can play an evidential role within Public
Meaning Originalism. Second, history and tradition can serve as modalities
of constitutional argument within the living constitutionalist approach called
“Constitutional Pluralism.” Third, history and tradition can form the basis of
a novel constitutional theory, which we call “Historical Traditionalism.”
There is a fourth role that operates at a lower level of abstraction in the
realm of constitutional doctrine: History and tradition can operate as
components of an implementing rule or test that operationalizes some aspect
of constitutional doctrine.
52
We categorize this last role as within the activity
of constitutional construction.
We will examine each role in turn, beginning with the role of history
and tradition within Public Meaning Originalism.
A. History and Tradition Within Public Meaning Originalism
Recall that an originalist approach to constitutional interpretation
requires us to identify the communicative content of the constitutional text.
From an originalist perspective, that content ought to constrain constitutional
practice, including the decision of cases and the articulation of doctrines by
the Supreme Court.
53
In the construction zone, Professors Barnett and
Bernick’s approach requires that the identification of the original purpose or
function of constitutional provisions constrain the adoption of implementing
doctrines. How should history and tradition bear on originalist interpretation
and construction?
1. History and Tradition as Evidence
of Original Meaning and Purpose
The most obvious relationship between originalism and history is
evidentiary. Evidence of the original public meaning of the constitutional
text is historical evidence. The roles of historical facts as evidence of original
meaning of the text are varied, but they include the following
54
:
52
Recall that implementing doctrines are methods of constitutional construction used to give the text
legal effect and meaning when the text is underdeterminate. Implementing rules operate at the level of
constitutional doctrine, not theory. As a consequence, an implementing rule that relies on history and
tradition might be justified on either originalist or living constitutionalist grounds.
53
See supra note 11 and accompanying text.
54
Each of the roles for historical facts that are outlined here can be utilized in the originalist
methodology discussed above. For example, historical word usage is an example of historical linguistics.
The use of historical context in pragmatics will involve study of the constitutional record. A full
118:433 (2023) Originalism After Dobbs, Bruen, and Kennedy
447
Historical Word Usage and Semantics: An important component of original
meaning is semantic, the meaning of the words and phrases that compose the
constitutional text. Semantic meaning is determined by patterns of usage, and
such patterns are historical facts.
55
Historical Context and Pragmatics: Semantics make an important contribution
to original meaning, but the full communicative content of the constitutional
text is also a function of context. Contextual disambiguation and pragmatic
enrichment require knowledge of the historical context in which each
constitutional provision was framed and ratified.
56
Historical Practice and Historical Doctrine: Historical practice and doctrine that
are close in time to the framing and ratification can provide evidence of
meaning. Government officials who participated in the framing and ratification
of the constitutional text are very likely to grasp its original public meaning.
Absent evidence to the contrary, it is reasonable to assume that their actions
were consistent with the text, especially if their actions went uncontested. For
this reason, historical practice and doctrine provide evidence of original public
meaning.
57
The role of history as evidence of original meaning is so clear and obvious
that it hardly needs to be stated, but the role of tradition can be obscure.
Tradition is sometimes contrasted to text, and that contrast may be built
into definitions of tradition, as in the Oxford English Dictionary definition
above: “custom, etc., handed down by non-written means.”
58
Nonetheless,
tradition may shed light on the original meaning of a text in a variety of ways,
including the following:
Traditions that Provide Constitutional Meaning: Some constitutional provisions
may point to tradition (or something very similar) as the content or substance
of the provision. For example, the Preservation Clause of the Seventh
Amendment requires that the “right of trial by jury” “at common law” be
preserved.
59
The content of the common law right may be constituted by
traditional practices that provide the communicative content of the phrase “trial
by jury” in conjunction with “at common law.”
Traditions that Provide Context: Because constitutional meaning is a function
of both the words and phrases and their context, tradition could play an
explanation of the connections between historical fact and originalist methodology is a very large topic
and is therefore outside the scope of this Article.
55
See Solum, Originalist Methodology, supra note 23, at 279.
56
See Solum, Public Meaning Thesis, supra note 7, at 2039.
57
See Brianne J. Gorod, Originalism and Historical Practice in Separation-of-Powers Cases,
66 SYRACUSE L. REV. 41, 56 (2016).
58
OXFORD ENGLISH DICTIONARY ONLINE, supra note 37.
59
U.S. CONST. amend. VII.
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
448
important role in both the disambiguation and enrichment of the constitutional
text. One example might be the Establishment Clause,
60
which was adopted
against a tradition of state establishment of religions.
61
That context might
suggest that one of the purposes of the clause was to deny Congress the power
to disestablish religions established by the state.
The fact that tradition can play a role in the production of constitutional
meaning might be misunderstood. The concept of tradition is not the same
concept as meaning (communicative content). Some provisions of the
constitutional text may be inconsistent with tradition; others may bring new
traditions into being. For example, slavery was a traditional practice before
the adoption of the Thirteenth Amendment, the purpose of which was to put
an end to that tradition.
62
According to Professors Barnett and Bernick, these historically-grounded
original purposes should guide and constrain a faithful implementation of the
original meaning of the text.
64
History or Tradition as a Method of Constitutional Construction: A direct appeal
to history or tradition could also provide a method for constitutional
construction in cases of underdeterminacy. For example, in Bruen, Justice
Clarence Thomas’s opinion for the majority used a historical analogue test to
determine the validity of contemporary gun control regulations.
65
60
Id. amend. I.
61
Richard Albert, The Constitutional Politics of the Establishment Clause, 87 CHI. KENT L. REV.
867, 869 (2012).
62
U.S. CONST. amend. XIII.
63
PENN. CONST. art. 13 (“[T]he people have a right to bear arms for the defence of themselves and
the state.”).
64
See generally Barnett & Bernick, supra note 19 (identifying and defending an originalist theory of
constitutional construction).
65
N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2128–29 (2022).
118:433 (2023) Originalism After Dobbs, Bruen, and Kennedy
449
These two roles (evidentiary and methodological) differ from one another,
but both can be consistent with an originalist approach to constitutional
construction. This is true because either role would operate when the
constitutional text underdetermines the legal content of constitutional
doctrine and could therefore be consistent with the original communicated
content of the text.
In contrast, if history or tradition are treated as the direct source of
constitutional construction, something other than originalism will be
operating in the construction zone. If accepted practices arising well after the
adoption of the constitutional provision—in, say, 1937, 1952, or any
arbitrary date—provide the basis for a judicial decision, this is a
nonoriginalist approach because it is not derived from the original purpose
of a provision adopted in 1789, 1791, or 1868.
66
66
Even if a history-and-tradition test is consistent with the original public meaning of the
constitutional text, it might not be the implementing rule that best realizes the original purpose or
function of a constitutional provision. There are many possibilities and complications we cannot discuss
on this occasion.
67
Randy E. Barnett, The Gravitational Force of Originalism, 82 FORDHAM L. REV. 411, 420 (2013).
68
Id. at 421.
69
142 S. Ct. at 2300 (Thomas, J., concurring) (“Considerable historical evidence indicates that ‘due
process of law’ merely required executive and judicial actors to comply with legislative enactments and
the common law when depriving a person of life, liberty, or property.”).
70
We elaborate on the concept of, and difficulties with, off-the-books originalism infra pp. 490–91.
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
450
by Justice Samuel Alito (with a modification we discuss below
71
) in Dobbs.
72
Starting with the belief that the protection of unenumerated substantive rights
by the Due Process of Law Clauses is illegitimate on originalist grounds, an
originalist judge might adopt a version of the doctrine that limits and contains
a departure from original meaning. This might be called “second-best
originalism.”
73
In the context of abortion, if a Justice believes that an unenumerated
right to obtain an abortion is inconsistent with the original meaning of the
Due Process of Law Clauses, that Justice might use a nonoriginalist
doctrine—like the substantive due process doctrine
74
articulated in
Washington v. Glucksberg—to reach what that Justice believes to be the right
originalist result.
75
In this way, the gravitational force of originalism exerts
its influence over nonoriginalist constitutional decisions without making an
appearance in the opinions of the Court.
76
How judges should approach nonoriginalist doctrines and precedents
will be examined below in Part IV. At this stage of the analysis, our point is
simply that originalism can be operating in the background even when an
opinion itself is not originalist in method. And originalists should clearly
distinguish between an originalist decision-making method and an
originalism-justified result. The former, not the latter, is the focus of our
analysis of the judicial reasoning of Dobbs, Bruen, and Kennedy.
71
See infra Section III.A.2.
72
521 U.S. 702 (1997). In Glucksberg, the Court established that the Due Process Clause does not
specially protect a right as “fundamental” unless the narrowly and specifically defined right is deeply
rooted in our nation’s history and tradition. Id. at 720–21; see also Michael H. v. Gerald D., 491 U.S.
110, 123–24 (1989) (quoting Justice Potter Stewart’s claim that “the Constitution protects the sanctity of
the family precisely because the institution of the family is deeply rooted in this Nation’s history and
tradition.”); McDonald v. City of Chicago, 561 U.S. 742, 767 (2010) (“[W]e must decide whether the
right to keep and bear arms is . . . ‘deeply rooted in this Nation’s history and tradition[.]” (quoting
Glucksberg, 521 U.S. at 721)).
73
See infra text accompanying notes 204–207 (elucidating the concept of an originalist second best
and explaining why the “deeply rooted in our nation’s history and tradition” test is only a second-best
originalist outcome).
74
The relationship of substantive due process to originalism is complicated, but for the purposes of
our analysis in this Article, we assume that the specific substantive due process analysis in Glucksberg
cannot be justified on originalist grounds. A full discussion of this issue would be voluminous and is
outside the scope of this Article. For a general critique of Glucksberg’s methodology, see Randy E.
Barnett, Scrutiny Land, 106 MICH. L. REV. 1479 (2008).
75
The “right originalist result” would include the outcome of a particular case and a holding that
would produce originalist results in future cases that are closer to the outcomes produced by a truly
originalist holding. See infra Part IV.E.
76
To reiterate, we take no position here on whether an unenumerated right to abortion is supported
by or inconsistent with the original public meaning of some provision of the Constitution.
118:433 (2023) Originalism After Dobbs, Bruen, and Kennedy
451
B. History and Tradition as Modalities Within Constitutional Pluralism
History and tradition can operate in a very different way than they do
within originalism by serving as modalities of constitutional argument within
what is called “Constitutional Pluralism.”
77
Let us stipulate the following
definition:
Constitutional Pluralism: Constitutional doctrine and the decision of
constitutional cases should be determined by a complex argument practice
structured by a finite set of the modalities of constitutional justification. A
constitutional doctrine or decision is reasonably justified as long as it is
supported by at least one modality.
Constitutional Pluralism is usually understood as a form of living
constitutionalism.
78
A representative set of modalities might include: (1) text,
(2) historical practice, (3) precedent, (4) constitutional values, and
(5) institutional capabilities.
79
For pluralists, no modality is privileged over
the others.
80
For this reason, Constitutional Pluralism explicitly allows the
constitutional text to be overridden by arguments from historical practice,
precedent, constitutional values, or institutional capacities.
Constitutional Pluralism can be either “progressive” or “conservative.”
Progressive Constitutional Pluralism is, perhaps, the most familiar form of
living constitutionalism. It includes the modalities of constitutional argument
that allow judges to adopt novel constitutional constructions in response to
changing values and circumstances. But we can also imagine a
“conservative” form of Constitutional Pluralism that elevates the backward-
looking modalities, combining history and tradition with both the original
meaning of the constitutional text and precedent.
Let us stipulate the following definition:
Conservative Constitutional Pluralism: Constitutional doctrine and the decision
of constitutional cases should be determined by a complex argument practice
77
For particular versions of Constitutional Pluralism, see PHILIP BOBBITT, CONSTITUTIONAL
INTERPRETATION 11–16 (1991), which describes constitutional modalities; Richard H. Fallon Jr., A
Constructivist Coherence Theory of Constitutional Interpretation, 100 HARV. L. REV. 1189, 1191–93
(1987); Stephen M. Griffin, Pluralism in Constitutional Interpretation, 72 TEX. L. REV. 1753, 1753
(1994), which provides that “[p]luralistic theories of constitutional interpretation hold that there are
multiple legitimate methods of interpreting the Constitution”; Mitchell N. Berman & Kevin Toh,
Pluralistic Nonoriginalism and the Combinability Problem, 91 TEX. L. REV. 1739, 1739–41 (2013); and
Aaron Tang, Rethinking Political Power in Judicial Review, 106 CAL. L. REV. 1755, 1795 (2018).
78
For a discussion of the relationship of Constitutional Pluralism with originalism, see Lawrence B.
Solum, Originalism Versus Living Constitutionalism, supra note 7, at 1271–76.
79
Different versions of Constitutional Pluralism involve varied lists of the legitimate modalities of
constitutional argument. We believe that the list provided in text is representative, but nothing hangs on
our specific formulation of pluralism.
80
BOBBITT, supra note 77, at 12–22.
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
452
structured by consideration of (1) text, (2) history, (3) tradition, and
(4) precedent. A constitutional doctrine or decision is justified if one of the
following two conditions is satisfied: (A) the doctrine or decision is required by
the constitutional text, or (B) the decision is inconsistent with the text but is
justified by history, tradition, or long-standing precedent.
81
Conservative Constitutional Pluralism resembles its progressive
constitutionalist cousin, but it eliminates the forward-looking modalities that
enable judges to adopt constitutional constructions that respond to changing
values and circumstances. Conservative Constitutional Pluralism resembles
what is sometimes called “faint-hearted originalism,”
82
a view that is
associated with Justice Antonin Scalia and is inconsistent with the “lion
hearted originalism” that is associated with Justice Thomas.
83
Something like conservative pluralism may capture what Justice Alito
means when he calls himself a “practical originalist.”
84
In short, Conservative
Constitutional Pluralism is like originalism, in that it allows for
constitutional decisions and doctrines that are justified by the original public
meaning of the constitutional text, but it differs from originalism in that it
allows departures from the text that are justified on the basis of history,
tradition, or longstanding precedent.
C. Historical Traditionalism as an Independent Constitutional Theory
There is a third and more novel role that history and tradition could play
in constitutional theory. History and tradition could stand alone as
an independent constitutional theory—call this view “Historical
Traditionalism.” The leading advocate for such a view is Professor Marc
81
This is only one possible version of what we are calling “Conservative Constitutional Pluralism.”
This version emphasizes the idea that departures from the original public meaning of the constitutional
text can be justified on the basis of history, tradition, or precedent. Other formulations are possible: for
example, we can imagine a form of conservative pluralism that allows departures from original meaning
only if it is supported by history, tradition, and precedent. Another variant might require departures from
original meaning that are supported by history, tradition, or precedent.
82
See Randy E. Barnett, Scalia’s Infidelity: A Critique of “Faint-Hearted” Originalism, 75 U. CIN.
L. REV. 7, 16 (2006).
83
See Lawrence B. Solum & Max Crema, Originalism and Personal Jurisdiction: Several Questions
and a Few Answers, 73 ALA. L. REV. 483, 531–33 (2022); see also Logan Olson, Presentation at the
University of Montana Graduate Conference: Lion Hearted Originalism and the Second Amendment
(Feb. 28, 2020) (comparing lion hearted originalism with Justice Scalia’s originalist interpretation in the
D.C. v. Heller case).
84
Matthew Walther, Sam Alito: A Civil Man, AM. SPECTATOR (Apr. 21, 2014, 12:00 AM),
spectator.org/sam-alito-a-civil-man [https://perma.cc/XD92-CVGH] (quoting Justice Alito as
stating, “I think I would consider myself a practical originalist.”).
118:433 (2023) Originalism After Dobbs, Bruen, and Kennedy
453
DeGirolami.
85
This theory, as we describe it, is inspired by Professor
DeGirolami’s theory, but it differs from his in several respects. Let us
stipulate the following definition:
Historical Traditionalism: Constitutional decisions and doctrines are justified
only if they are deeply rooted in the history and traditions of the United States,
including (1) longstanding and continuous historical practice, (2) longstanding
and continuous precedent, or (3) longstanding and continuous customs and
social norms.
So defined, Historical Traditionalism is not a form of originalism.
Recall that originalism embraces the Constraint Principle and hence requires
consistency with the original public meaning of the constitutional text.
86
Historical Traditionalism would support constitutional decisions and
doctrines that are consistent with the constitutional text, but only if the
original meaning is reflected in longstanding and continuous historical
practice, precedent, or customs and social norms. Otherwise, Historical
Traditionalism both authorizes and requires departures from the original
meaning when the original meaning is not consistent with historical practice,
precedent, or customs and social norms. But such departures are inconsistent
with the Constraint Principle.
The contrast between Historical Traditionalism and Public Meaning
Originalism can be illustrated with three hypothetical examples. The
examples that follow are based on stipulated assumptions about original
meaning, history, and tradition. They are offered as hypothetical illustrations
and not as arguments about what the original public meaning of the
constitutional text actually is.
Federalism: Even if the original public meaning of the constitutional text
requires that federal legislation be authorized by an enumerated power or the
limited ancillary powers authorized by the Necessary and Proper Clause,
Historical Traditionalism might sanction virtually unlimited national legislative
power on the basis of a longstanding and continuous historical practice,
precedent, or custom, beginning in the 1930s and persisting for decades.
Separation of Powers: Even if the original public meaning of the constitutional
text requires a robust nondelegation doctrine, Historical Traditionalism could
authorize the transfer of legislative power to administrative agencies on the
basis of a historical practice, precedent, or custom of such delegations that
began during the New Deal Era.
85
See, e.g., Marc DeGirolami, Traditions of American Constitutional Law, 95 NOTRE DAME L. REV.
1123, 1128–29 (2020) (providing an overview of Professor DeGirolami’s new theory of constitutional
interpretation focused on traditionalism).
86
See supra text accompanying note 11.
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
454
Privileges or Immunities of Citizens: Even if the original meaning of the
constitutional text bars states from abridging the fundamental substantive rights
of its citizens under the Privileges or Immunities Clause, Historical
Traditionalism might justify judicial nullification of the Clause on the
basis of more than a century of historical practice beginning with the Slaughter-
House Cases.
87
These hypotheticals illustrate a core feature of Historical Traditionalism: it
requires continuity with history and tradition regardless of the original public
meaning of the relevant constitutional text. This requirement is inconsistent
with originalism if there has been a longstanding and continuous departure
from the original public meaning of the constitutional text.
88
D. History and Tradition as Implementing Doctrines
Up to this point, our discussion of the roles of history and tradition has
focused on constitutional theory. We now consider the possibility that
history and tradition can be used to formulate implementing doctrines.
We can illustrate this fourth role with a hypothetical. Suppose the
Supreme Court was devising an implementing doctrine for the constitutional
norms governing defamation actions (libel and slander) under the Free
Speech and Freedom of the Press Clauses of the Constitution,
89
as applied to
the states via the Fourteenth Amendment. The Court has reached the abstract
conclusion that state common law rules governing private cause of action for
defamation can violate the First Amendment freedoms of speech and press.
Now, it needs a less abstract implementing doctrine (a rule or test) to
determine whether a particular defamation rule is unconstitutional. Imagine
that the Court adopts a “history and tradition test.” The test holds that state
common law defamation rules are constitutional if they are supported by
history and tradition, but they are unconstitutional if they are both novel and
restrictive of free speech or press.
90
The role of history and tradition as implementing doctrines is reflected
in Justice Sonia Sotomayor’s dissenting opinion in Kennedy, identifying “a
87
83 U.S. 36 (1872).
88
Still, the gravitational force of originalism could account for the following outstanding questions:
why the Rehnquist Court adopted nonoriginalist limits on the nonoriginalist substantial effects doctrine;
why the Roberts Court adopted the nonoriginalist “major questions doctrine” approach to statutory
construction; and why conservative Justices who are sympathetic to originalism have adopted a highly
restricted doctrine of substantive due process.
89
U.S. CONST. amend. I.
90
As formulated, the test may not be sufficiently precise; a more elaborate test might be required for
a workable doctrine in the real world, but we have formulated a very simple history and tradition test to
illustrate the general idea.
118:433 (2023) Originalism After Dobbs, Bruen, and Kennedy
455
new ‘history and tradition’ test.”
91
And Justice Brett Kavanaugh’s concurring
opinion in Bruen characterizes the majority as elaborating “on the text,
history, and tradition test” for violations of the right to bear arms.
92
History and tradition tests might be adopted either on the basis of
originalist reasoning or by a court that employed some form of Constitutional
Pluralism. For example, an originalist understanding of the Seventh
Amendment might conclude the original public meaning of the Preservation
Clause
93
directly requires that the right to jury trial is defined by the “history
and tradition” of the jury trial right in England as of 1791 when the Seventh
Amendment was adopted. Alternatively, an originalist might reach the
conclusion that the phrase “right to jury trial” and the word “preserve”
underdetermine the content of Seventh Amendment doctrine, but that a
history and tradition test would serve the amendment’s original purpose. But
the same test might also be adopted by a constitutional pluralist. For
example, a constitutional pluralist who was a living constitutionalist might
conclude that a history and tradition test is supported by the text of the
Seventh Amendment, historical practice, or constitutional values.
As we shall see, history and tradition tests may well have played an
important role in Dobbs, Bruen, and Kennedy. We turn to those cases now.
III. HISTORY AND TRADITION IN RECENT DECISIONS
OF THE SUPREME COURT
We now have a framework for evaluating the use of history and
tradition in Dobbs, Bruen, and Kennedy. In this Part, we examine these three
cases in order to reconstruct the role that history and tradition play in each
case in light of the conceptual clarifications in Part I and the explication of
the roles of history and tradition in Part II. Given the differing uses of history
and tradition we have identified, it is not surprising that the roles to which
history and tradition are put in these cases is complicated. Our aim is to
clarify what, on the surface, can be very confusing.
We begin with Dobbs.
A. Dobbs v. Jackson Women’s Health Organization
Justice Alito’s opinion for the Court in Dobbs is a decided mix of
originalist and nonoriginalist use of history and tradition.
91
142 S. Ct. 2407, 2434 (2022) (Sotomayor, J., dissenting) (emphasis added).
92
142 S. Ct. 2111, 2161 (2022) (Kavanaugh, J., concurring) (emphasis added).
93
The Preservation Clause provides, “In Suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be preserved. . . .” U.S. CONST. amend. VII.
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1. Nonoriginalism in Dobbs
Justice Alito explains that “the Due Process Clause of the Fourteenth
Amendment . . . has been held to guarantee some rights that are not
mentioned in the Constitution, but any such right must be ‘deeply rooted in
this Nation’s history and tradition’ and ‘implicit in the concept of ordered
liberty.’”
94
At first blush, Justice Alito’s use of history and tradition seems
decidedly nonoriginalist in two distinct respects. First, notice the nature of
his claim: “[T]he Due Process Clause of the Fourteenth Amendment . . . has
been held to guarantee some rights that are not mentioned in the
Constitution . . . .”
95
This is an appeal to doctrines that have developed over
many decades to protect unenumerated rights: longstanding judicial
precedents are the source of law. Precedent is neither being offered as
evidence of the original meaning of the Due Process of Law Clause nor to
provide implementing doctrines or precisifications for a meaning that is
vague or open-textured. In this formulation of his position, Justice Alito is
making no claim at all about the original meaning of the text of the
Fourteenth Amendment.
96
Second, Justice Alito maintains that these traditional precedents have
established a method by which “any such right must be ‘deeply rooted in this
Nation’s history and tradition’ and ‘implicit in the concept of ordered
liberty.’”
97
Without any further qualification, this too is a nonoriginalist
historical claim about a tradition of protecting a particular unenumerated
right—regardless of whether that right has any basis in the original meaning
of the text.
In sum, Justice Alito claims that (1) longstanding precedent requires
judges to craft substantive due process doctrine based on (2) traditional
recognition of those unenumerated rights that are “deeply rooted in this
Nation’s history and tradition” but not other rights that are not so rooted. The
first proposition is established by looking to decisions of the Supreme Court.
In the second proposition, what type of historical inquiry establishes “the
Nation’s history and tradition” is less clear. Justice Alito does not articulate
94
Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2242 (2022).
95
Id. (emphasis added).
96
In public comments, Justice Alito has suggested that the doctrine of stare decisis is contained
within the original meaning of “the judicial power.” See The Heritage Foundation, Live Q&A with
Justice Alito, YOUTUBE (Oct. 25, 2022), www.youtube.com/watch?v=WzRqIcXPmKw
[https://perma.cc/6L5G-6SV6]. This claim about the original meaning of “the judicial power” is beyond
the scope of this Article.
97
Dobbs, 142 S. Ct. at 2242.
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457
criteria that establish which unenumerated rights are “deeply rooted” in
history and tradition and which are not.
Although the outcome could possibly have been justified on originalist
grounds, to the extent that the outcome of Dobbs is controlled by this
application of Glucksberg’s nonoriginalist approach to substantive due
process, it is a nonoriginalist decision in its reasoning. Indeed, the
nonoriginalist nature of the Dobbs majority is suggested by Justice Thomas’s
concurring opinion, which explicitly rejects the entirety of substantive due
process on originalist grounds, a claim that Justice Alito does not contest.
98
The references to “the language of the instrument” and a “fixed standard”
sound in originalism, but Justice Alito is also making a claim about the
significance of constitutional silence. He shifts the burden to those who claim
such a right to find it “implicit in the constitutional text.”
100
It is here where
one would expect to find an analysis of the original meaning of the Privileges
or Immunities Clause, or perhaps the Ninth Amendment—both of which
explicitly recognize unenumerated rights. An originalist inquiry would ask
whether the unenumerated rights to which these provisions allude include a
right protecting abortions. But the majority opinion eschews this analysis.
101
Notice that Justice Alito put the burden on the party asserting the
existence of such a right to establish this claim. Justice Alito then concluded
98
Id. at 2300 (Thomas, J., concurring) (“I write separately to emphasize a second, more fundamental
reason why there is no abortion guarantee lurking in the Due Process Clause. Considerable historical
evidence indicates that ‘due process of law’ merely required executive and judicial actors to comply with
legislative enactments and the common law when depriving a person of life, liberty, or property.”).
99
Id. at 2244–45.
100
Id. at 2245.
101
Justice Alito’s opinion addresses the Privileges or Immunities Clause in footnote 22: “But even
on [the basis of the Privileges or Immunities Clause], such a right [to abortion] would need to be rooted
in the Nation’s history and tradition.” Id. at 2248 n.22. The footnote does not discuss the original public
meaning of the clause.
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458
that the petitioners in Dobbs failed to do so. In the absence of such a claim,
Justice Alito remains within the Glucksberg line of cases seeking to identify
the right in “history and tradition.”
Justice Alito’s opinion contains another originalist element: it
emphasizes the “history and tradition” at the founding and during the
adoption of the Fourteenth Amendment. Justice Alito starts by characterizing
the method he used as author of the plurality opinion in McDonald v. City of
Chicago
102
to find that the enumerated right to keep and bear arms is
“fundamental” and therefore enforceable against the states via the Fourteenth
Amendment:
The lead opinion surveyed the origins of the Second Amendment, the debates
in Congress about the adoption of the Fourteenth Amendment, the state con-
stitutions in effect when that Amendment was ratified (at least 22 of the 37
States protected the right to keep and bear arms), federal laws enacted during
the same period, and other relevant historical evidence. Only then did the
opinion conclude that “the Framers and ratifiers of the Fourteenth Amendment
counted the right to keep and bear arms among those fundamental rights
necessary to our system of ordered liberty.”
103
In the quoted passages from McDonald, Justice Alito is using historical
practice as evidence of the original meaning of the Second and Fourteenth
Amendments. If all that matters for a right to be protected is that it be
recognized in our Nation’s tradition, as Historical Traditionalism dictates,
there would be no particular reason to single out these two time periods or
focus on “the Framers and ratifiers” of the Fourteenth Amendment.
Yet Justice Alito’s plurality opinion in McDonald, which he followed
in Dobbs, is equivocal about whether its reasoning accords with the original
meaning of the text. On the one hand, when it came to whether the Slaughter-
House Cases had accurately interpreted the original meaning of the
Privileges or Immunities Clause, the McDonald plurality specifically
declined to take any “position with respect to this academic debate,”
104
thus
leaving open the question of original meaning. Instead, it analyzed “the
question of the rights protected by the Fourteenth Amendment against state
infringement . . . under the Due Process Clause of that Amendment and not
under the Privileges or Immunities Clause,” and “decline[d] to disturb the
Slaughter-House holding.”
105
Justice Alito’s reference to “under the Due
102
561 U.S. 742, 767 (2010).
103
Dobbs, 142 S. Ct. at 2247 (citation omitted) (quoting McDonald, 561 U.S. at 778).
104
561 U.S. at 763 n.10.
105
Id. at 758.
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459
Process Clause” is clearly a reference to the Supreme Court’s doctrines under
this rubric, not the original meaning of the clause.
On the other hand, in a footnote in McDonald, Justice Alito presented
selectively edited quotations that do pertain to the original meaning of the
text. He took care to replace their original references to the Privileges or
Immunities Clause with “the Amendment.”
106
For example, he wrote,
“Senator Jacob Howard, who spoke on behalf of the Joint Committee on
Reconstruction and sponsored the Amendment in the Senate, stated that the
Amendment protected all of ‘the personal rights guarantied and secured by
the first eight amendments of the Constitution.’”
107
“Representative John
Bingham, the principal author of the text of § 1, said that the Amendment
would ‘arm the Congress . . . with the power to enforce the bill of rights as
it stands in the Constitution today.’”
108
In actuality, both Howard and
Bingham were specifically referencing the meaning of the “privileges or
Immunities” of citizens, not the Fourteenth Amendment generally.
109
However, having eschewed taking any position on the original meaning of
the text—whether the text of the Privileges or Immunities Clause or the text
of the Due Process of Law Clause, exactly why the views of “the Framers
and ratifiers of the Fourteenth Amendment” are privileged in the majority’s
analysis of “history and tradition” is unclear.
In sum, Justice Alito’s reasoning in McDonald, is a hybrid of originalist
and nonoriginalist analysis. On the one hand, he expressly avoids taking a
stand on the “academic debate” about the original meaning of the Privileges
or Immunities Clause—originalism “OFF.” But he nevertheless proffers
evidence of original meaning (albeit edited to omit the precise text that the
speakers were interpreting)—originalism “ON.” (Below we will suggest that
this seemingly “hybrid” approach is consistent with Justice Alito’s
methodology being pluralist rather than originalist.)
In Dobbs, Justice Alito continued to employ this seemingly hybrid
methodology. In this passage, Justice Alito is clearly interpreting the Due
Process of Law Clause: “In interpreting what is meant by the Fourteenth
Amendment’s reference to ‘liberty,’ we must guard against the natural
human tendency to confuse what that Amendment protects with our own
106
See id. at 762 n.9.
107
Id. (emphasis added).
108
Id. (emphasis added).
109
See CONG. GLOBE, 39th Cong. 1st, Sess. 1088 (1866) (statement of Rep. Bingham); id. at 2765
(statement of Sen. Howard); RANDY E. BARNETT & EVAN D. BERNICK, THE ORIGINAL MEANING OF THE
14
TH
AMENDMENT: ITS LETTER AND SPIRIT 132–34 (2021) (contextualizing Bingham’s statement); id. at
140–43 (contextualizing Howard’s statement).
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ardent views about the liberty that Americans should enjoy.”
110
Later, he
maintains that “guided by the history and tradition that map the essential
components of our Nation’s concept of ordered liberty,” the Court “must ask
what the Fourteenth Amendment means by the term ‘liberty.’”
111
Here Justice Alito is attempting to identify “the essential components
of our Nation’s concept of ordered liberty,” which is what the Glucksberg
doctrine requires. But, in the same sentence, he conjoins this with an inquiry
into “what the Fourteenth Amendment means by the term ‘liberty.’” After
denying that what the Fourteenth Amendment means by the term “liberty”
includes the right to an abortion, in a footnote, he asserts that this conclusion
“is true regardless of whether we look to the Amendment’s Due Process
Clause or its Privileges or Immunities Clause.”
112
In this footnote, Justice Alito is claiming that the same Glucksberg-like
methodology he is employing to interpret “the due process of law” would
also be the proper method of identifying a fundamental right under the
original meaning of the Privileges or Immunities Clause. So even if “the
Privileges or Immunities Clause is the provision of the Fourteenth
Amendment that guarantees substantive rights,” he contended, “such a right
would need to be rooted in the Nation’s history and tradition.”
113
In support of the claim that the Privileges or Immunities Clause of the
Fourteenth Amendment requires a history and tradition test, Justice Alito
cites the definition of “privileges and immunities” that was provided by
Justice Bushrod Washington in his discussion of the Privileges and
Immunities Clause of Article IV in Corfield v. Coryell: “fundamental” rights
are those “which have, at all times, been enjoyed by the citizens of the several
states.”
114
In this passage, Justice Washington seems to have identified the
substance of the Article IV privileges and immunities by consulting history
and tradition.
115
Rights that have been enjoyed “at all times” are
“fundamental.”
116
Justice Alito does not explicitly make the connection
between Corfield’s discussion of the privileges, but, as Professor Barnett has
110
Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2247 (2022).
111
Id. at 2248.
112
Id. n.22.
113
Id.
114
Id. (quoting Corfield v. Coryell, 6 F. Cas. 546, 551 (C.C.E.D. Pa. 1823)).
115
Barnett and Bernick adopt a slightly modified version of Justice Washington’s method of locating
the substantive privileges or immunities of U.S. citizens in the traditional recognition of such privileges
in the positive law of the states. See BARNETT & BERNICK, supra note 109, at 243 (“[A] judicially
cognizable ‘privilege or immunity’ must have been longstanding and widespread, enjoyed by citizens of
the United States as a matter of the positive law of the states or of the nation.”). Their method does indeed
resemble the Court’s approach in Glucksberg.
116
See id.
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461
observed, that link can be found in Senator Howard’s speech introducing the
Fourteenth Amendment in the Senate.
117
In sum, Justice Alito is implying here that the Glucksberg approach to
identifying the “liberty” that is protected by the Fourteenth Amendment is
also supported by the original meaning of the text of the Privileges or
Immunities Clause. But he neither commits himself to that conclusion, nor
rests the majority’s holding on this ground. Rather, we think these statements
are best explained by the idea that the gravitational force of originalism is
operating in the background of Justice Alito’s opinion.
There is another respect in which Justice Alito’s approach is a hybrid
of both nonoriginalist substantive due process doctrine and original meaning.
In addition to his lengthy examination of the “unbroken tradition of
prohibiting abortion on pain of criminal punishment [that] persisted from the
earliest days of the common law [in both England and America] until 1973,”
as in McDonald, Justice Alito also considered whether abortion was thought
to be a right in 1868.
118
“By 1868, the year when the Fourteenth Amendment
was ratified, three-quarters of the States, 28 out of 37, had enacted statutes
making abortion a crime even if it was performed before quickening.”
119
And
again, “Neither respondents nor the Solicitor General disputes the fact that
by 1868 the vast majority of States criminalized abortion at all stages of
pregnancy.”
120
But if Justice Alito was simply attempting to identify a longstanding
tradition of criminalizing abortion as a means of demonstrating that it cannot
be a fundamental right, there is no reason why the state of the law in 1868
would be particularly salient. The year 1868 is salient if the question is
whether a right to abortion is a “fundamental” right protected either by the
original meaning of “liberty” in the Due Process of Law Clause or as a
“privilege or immunity” of citizenship, and if historical practices establish
the existence of such a right. But if this is what Justice Alito is seeking,
he must be clearer about which clause he is interpreting; and, if he is taking
the originalist approach, there is no reason to continue to trace the protection
of this right—or lack thereof—up to 1973. Doing that sends mixed signals
to readers.
117
Randy E. Barnett, The Continuing Relevance of the Original Meaning of the Thirteenth
Amendment, 15 GEO. J.L. & PUB. POL’Y 1, 10 (2017). In this Article, we take no position on the original
public meaning of the Privileges or Immunities Clause. The point of the discussion in text is that Justice
Alito’s opinion may be explained by the gravitational force of originalism.
118
Dobbs, 142 S. Ct. at 2253–54.
119
Id. at 2252–53.
120
Id. at 2254.
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In sum, we agree the “history and tradition” of the regulation of abortion
could be relevant to the original meaning of whether a right is a “privilege
or immunity” of citizens. But if that is the question the Court is answering,
Justice Alito’s opinion falls short, both because it fails to articulate the
original public meaning of the clause and because it fails to examine most of
the relevant evidence of such meaning.
121
Alternatively, the history of
regulating abortion is relevant to the nonoriginalist conservative doctrine
limiting the scope of substantive due process. The majority’s privileging of
1868 makes Dobbs a hybrid opinion and, for this reason, a confusing one.
B. New York State Rifle & Pistol Ass’n v. Bruen
In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court
invalidated a New York statute that required a license for possession of a
firearm outside the home.
122
To secure that license, the applicant had to prove
that “proper cause exist[ed]” to issue it. That cause was required to be over
and above any general desire to equip oneself to engage in lawful self-
defense.
123
If an applicant could not make that showing, he could receive only
a “restricted” license for public carry, which would allow him “to carry a
firearm for a limited purpose, such as hunting, target shooting, or
employment.”
124
The concepts of history and tradition played a key role in the decision.
Justice Thomas’s opinion for the Court states:
[W]e hold that when the Second Amendment’s plain text covers an individual’s
conduct, the Constitution presumptively protects that conduct. To justify its
regulation . . . the government must demonstrate that the regulation is consistent
with this Nation’s historical tradition of firearm regulation. Only if a firearm
regulation is consistent with this Nation’s historical tradition may a court
conclude that the individual’s conduct falls outside the Second Amendment’s
“unqualified command.”
125
So, “historical tradition” plays an important role in the Court’s
articulation of its holding in Bruen. But what, precisely, is that role? What is
the Court’s justification for the “historical tradition” test? And how is that
test related to the original meaning of the Second and Fourteenth
Amendments? Answering these questions requires a close reading of Justice
121
Relevant sources of the public meaning, as discussed in Section II.A.1, include historical word
usage and semantics, historical context and pragmatics, or historical practice and historical doctrine.
122
142 S. Ct. 2111 (2022).
123
Id. at 2123.
124
Id. at 2123 (citations omitted).
125
Id. at 2126 (quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 n.10 (1961)).
118:433 (2023) Originalism After Dobbs, Bruen, and Kennedy
463
Thomas’s opinion together with some speculation about the assumptions
upon which the opinion rests.
As articulated by Justice Thomas, analysis of a Second Amendment
case requires two steps. The first step involves the question whether the
regulated conduct is within the scope of the Second Amendment. That
portion of the analysis is based on the originalist analysis of the Second
Amendment in District of Columbia v. Heller.
126
Here are the two relevant
paragraphs:
Nothing in the Second Amendment’s text draws a home/public distinction with
respect to the right to keep and bear arms. As we explained in Heller, the
“textual elements” of the Second Amendment’s operative clause—“the right of
the people to keep and bear Arms, shall not be infringed”—guarantee the
individual right to possess and carry weapons in case of confrontation.” Heller
further confirmed that the right to “bear arms” refers to the right to “wear, bear,
or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . .
of being armed and ready for offensive or defensive action in a case of conflict
with another person.”
This definition of “bear” naturally encompasses public carry. Most gun owners
do not wear a holstered pistol at their hip in their bedroom or while sitting at the
dinner table. Although individuals often “keep” firearms in their home, at the
ready for self-defense, most do not “bear” (i.e., carry) them in the home beyond
moments of actual confrontation. To confine the right to “bear” arms to the
home would nullify half of the Second Amendment’s operative protections.
127
For the purposes of this Article, we will not recapitulate Justice Scalia’s
analysis in Heller or take a position on the validity of his conclusions. Our
point is that Bruen assumes that Heller articulates the original public
meaning of the Second Amendment and then argues that this articulation
encompasses the carrying of a gun in public. Whether or not its conclusions
are correct in light of all the evidence bearing on the public meaning of the
Second Amendment, this portion of the opinion clearly relies on originalist
methodology.
Justice Thomas then bolsters the evidence of linguistic usage with an
appeal to the original function or purpose of the right to keep and bear arms:
Moreover, confining the right to “bear” arms to the home would make little
sense given that self-defense is “the central component of the [Second
Amendment] right itself.” After all, the Second Amendment guarantees an
“individual right to possess and carry weapons in case of confrontation,” and
confrontation can surely take place outside the home.
126
554 U.S. 570, 573 (2008).
127
Bruen, 142 S. Ct. at 2134–35.
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464
Although we remarked in Heller that the need for armed self-defense is perhaps
“most acute” in the home, we did not suggest that the need was insignificant
elsewhere. Many Americans hazard greater danger outside the home than in
it . . . . The text of the Second Amendment reflects that reality.
128
Based on this textual and contextual analysis, Justice Thomas concludes that
the “Second Amendment’s plain text thus presumptively guarantees
petitioners Koch and Nash a right to ‘bear’ arms in public for self-defense.”
129
Notice that in this very brief treatment of original meaning, history is
being used to provide evidence of the communicative content of the phrase
“bear arms”—an example of what we call “Historical Semantics” above.
130
Justice Thomas is also appealing to the historical context and pragmatics to
inform his conclusion about original meaning with reference to the original
purpose of the right: enabling the exercise of self-defense.
To be clear, the claim is not that the original meaning of the Second
Amendment includes a personal right of self-defense. Justice Thomas’s
opinion says no such thing. The claim is that the content of the right to arms
expressed in the text is influenced by its known and widely accepted purpose
of facilitating a fundamental unenumerated right of self-defense.
So, Justice Thomas concludes that public carrying of firearms is within
the scope of the right to bear arms. The next step of the analysis is to
determine whether the permit scheme provided by New York violates that
right. It is at this point that the Bruen court declines to use the approach that
had been adopted by the lower federal courts in the wake of Heller and
McDonald v. City of Chicago,
131
which had held that the Second Amendment
right recognized by Heller applied to the states.
132
Justice Thomas’s opinion
characterizes the approach of the lower courts as follows: “the Courts of
Appeals have coalesced around a ‘two-step’ framework for analyzing
Second Amendment challenges that combines history with means–end
scrutiny . . . [which allows the state to] justify its regulation [by showing]
that the regulation promotes an important interest.”
133
128
Id. at 2135 (citations omitted).
129
Id.
130
See supra text accompanying notes 23–29.
131
561 U.S. 742, 749–50 (2010).
132
Id. at 750 (“[W]e hold that the Second Amendment right is fully applicable to the States.”).
133
142 S. Ct. at 2125–26. The two-step test that Bruen replaced has been articulated in various ways.
For example, Professors Darrell Miller and Joseph Blocher identify the two steps as follows:
At the first step, the lower courts used an approach—strongly influenced by history and Heller’s
categorical distinctions—to decide whether the Second Amendment covered the challenger’s
118:433 (2023) Originalism After Dobbs, Bruen, and Kennedy
465
The first step of the predominant framework was viewed by Justice
Thomas as consistent with the originalist approach in Heller: “Step one of
the predominant framework is broadly consistent with Heller, which
demands a test rooted in the Second Amendment’s text, as informed by
history.”
134
It is at the second step that Justice Thomas’s approach differs
from that of the lower courts.
In Bruen, Justice Thomas replaced the lower courts’ “important
interest” test with a test that focuses on consistency with historical tradition.
Even if a state regulation of the right to bear arms serves an important
interest, it is nonetheless invalid unless it can be shown to be consistent with
the historical tradition of firearms regulation in the United States
135
: “[T]he
government must affirmatively prove that its firearms regulation is part of
the historical tradition that delimits the outer bounds of the right to keep and
bear arms.”
136
Justice Thomas then elaborated:
Much like we use history to determine which modern “arms” are protected by
the Second Amendment, so too does history guide our consideration of modern
regulations that were unimaginable at the founding. When confronting such
present-day firearm regulations, this historical inquiry that courts must conduct
will often involve reasoning by analogy—a commonplace task for any lawyer
or judge.
137
When it came to discretionary or “may issue” regulations of carrying
firearms outside the home, he concluded, “[a]t the end of this long journey
through the Anglo-American history of public carry, . . . respondents have
not met their burden to identify an American tradition justifying the State’s
proper-cause requirement.”
138
So, in Bruen, the concept of historical tradition plays a role in the newly
formulated step two as a replacement for the means–ends scrutiny approach
activity. If it did not, then that was the end of the inquiry. Felons caught with firearms, or
challenges to guns in “sensitive places” like commercial airliners, usually failed at this step.
If the history was unclear, or the category underspecified, or the judge was cautious, courts would
address step two, and apply a conventional means-end analysis calibrated by how close the
regulation came to the “core” of the right. In doing so, courts would evaluate the stated
government interest (typically described as public safety) and examine how closely the regulation
fit with this stated goal compared to the expected burden on otherwise core Second Amendment
conduct. Often, but not always, this analysis took the form of intermediate scrutiny.
Darrell A.H. Miller & Joseph Blocher, Manufacturing Outliers, 2022 SUP. CT. REV. 49, 53–54.
134
142 S. Ct. at 2127.
135
Id. at 2126.
136
Id. at 2127.
137
Id. at 2132.
138
Id. at 2156.
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466
developed by the lower courts. We can now return to our questions about the
use of history and tradition in Bruen: What is the role of the historical
traditions test? How is that test justified? And what is the relationship of the
test to the original meaning of the Second and Fourteenth Amendments (as
that meaning was understood by the Court)?
Our answer to these questions begins with a brief recapitulation of the
possibilities discussed above.
139
The reference to “historical tradition” in
Bruen could be understood in several ways, the first three of which are
consistent with originalism (at least in theory). Here are five possibilities.
Possibility One: Originalist Evidence: Historical tradition might provide
evidence of the original meaning of the Second or Fourteenth Amendments.
Possibility Two: Originalist Content of the Right to Bear Arms: Historical
tradition might provide the actual communicative content of the right to bear
arms—a role that would be analogous to that of the historical tradition of the
right to jury trial in the preservation clause of the Seventh Amendment.
Possibility Three: Originalist Implementing Rule in the Construction Zone:
Historical tradition might provide an implementing rule that resolves the
underdeterminacy created by the imprecision of Second Amendment’s
operative clause, “the right of the people to keep and bear Arms, shall not be
infringed.”
140
And there are at least two other possible understandings of the role of
historical tradition:
Possibility Four: Constitutional Pluralist Modality: Historical tradition might be
operating as a modality of constitutional argument; regulations of the right to
bear arms are justified because of historical tradition independently of the
original meaning of the constitutional text.
Possibility Five: Historical Traditionalism: Historical tradition might be
operating as a new framework for constitutional interpretation and construction
that replaces both originalism and living constitutionalism.
Possibilities One and Five are easily eliminated. It is quite clear that the
historical tradition test is not being used to establish the original public
meaning of the words and phrases that make up the text of the Second
Amendment. Nothing in Justice Thomas’s opinion suggests that “historical
tradition” is being used to revisit questions about the meaning of the Second
Amendment that were asked and answered in Heller. Similarly, there is
simply nothing in Justice Thomas’s opinion that suggests that the Court is
creating an entirely new “historical tradition” framework for constitutional
139
See supra Part II.
140
U.S. CONST. amend. II.
118:433 (2023) Originalism After Dobbs, Bruen, and Kennedy
467
interpretation and construction; his opinion in Bruen does not represent a
radical departure from both originalism and living constitutionalism.
That leaves Possibilities Two, Three, and Four, each of which requires
further examination. We begin with Possibility Two—that historical
tradition provides the content of the right to bear arms. On this account, the
role of historical tradition in Bruen would be analogous to the role that the
historical tradition of trial by jury plays in the context of the Preservation
Clause of the Seventh Amendment,
141
which “preserve[s]” a preexisting
“common law” right, the content of which is defined by the historical
tradition of the right to jury trial as it existed in 1791.
142
The plausibility of
this understanding of historical tradition in Bruen is grounded in the idea that
the “right to bear arms” that may not be “infringed” is a preexisting legal
right. As Justice Scalia put it in Heller: “[I]t has always been widely
understood that the Second Amendment, like the First and Fourth
Amendments, codified a pre-existing right.”
143
If historical tradition provides the content of the right to bear arms, it
then becomes important to identify the relevant historical period. Because
Heller arose in the District of Columbia,
144
the Second Amendment applied
directly and the content of the preexisting legal right to bear arms would be
defined by the historical tradition as it existed in 1791. But Bruen was a
challenge to a New York state statute,
145
and therefore the relevant
constitutional provision is the Fourteenth Amendment,
146
which was ratified
141
See Darrell A.H. Miller, Text, History, and Tradition: What the Seventh Amendment Can Teach
Us About the Second, 122 YALE L.J. 852, 872–926 (2013) (providing a comprehensive analysis of the
relationship of history and tradition in the Seventh and Second Amendments).
142
For discussion, see Margaret L. Moses, What the Jury Must Hear: The Supreme Court’s Evolving
Seventh Amendment Jurisprudence, 68 GEO. WASH. L. REV. 183, 185–92 (2000), which discusses “the
historical test of the right to a jury trial, based upon whether the action could have been brought in a court
of law in 1791, the time of the Seventh Amendment’s ratification.”
143
Heller, 554 U.S. at 592 (emphasis omitted).
144
Id. at 573.
145
142 S. Ct. at 2122–25.
146
Justice Thomas’s opinion has nothing to say about which clause in Section One of the Fourteenth
Amendment is the basis for the Court’s decision. In the McDonald case, Justice Alito’s separate opinion
for a total of four Justices stated,
We see no need to reconsider that interpretation here. For many decades, the question of the rights
protected by the Fourteenth Amendment against state infringement has been analyzed under the
Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We
therefore decline to disturb the Slaughter-House holding.
McDonald v. City of Chicago, 561 U.S. 742, 758 (2010). Justice Thomas’s concurring opinion in
McDonald disagreed: “[T]he right to keep and bear arms is a privilege of American citizenship that
applies to the States through the Fourteenth Amendment’s Privileges or Immunities Clause.” Id. at 806.
Justice Thomas’s opinion in Bruen never mentions the Due Process of Law Clause or the Privileges or
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468
in 1868.
147
This raises an important question, which Justice Amy Coney
Barrett articulated in her concurring opinion:
[T]he Court avoids [an] “ongoing scholarly debate on whether courts should
primarily rely on the prevailing understanding of an individual right when the
Fourteenth Amendment was ratified in 1868” or when the Bill of Rights was
ratified in 1791 . . . . Here, the lack of support for New York’s law in either
period makes it unnecessary to choose between them. But if 1791 is the
benchmark, then New York’s appeals to Reconstruction-era history would fail
for the independent reason that this evidence is simply too late (in addition to
too little) . . . . So today’s decision should not be understood to endorse
freewheeling reliance on historical practice from the mid-to-late 19th century
to establish the original meaning of the Bill of Rights. On the contrary, the Court
is careful to caution “against giving postenactment history more weight than it
can rightly bear.”
148
So, as Justice Barrett observes, Bruen brackets questions about the
possibility that the right to bear arms protected by the Fourteenth
Amendment is identical to or different from the right conferred by the
Second Amendment. Based on the Court’s view of the facts presented by the
parties, the New York statute challenged in Bruen infringed the right whether
its content is provided by historical tradition as of 1791 or as of 1868.
The case for Possibility Two is further reinforced by Justice Thomas’s
discussion of two post-1868 statutes that imposed requirements analogous to
the New York statute in Bruen—one statute was adopted by Texas in 1871,
and the other by West Virginia in 1887.
149
Both statutes provide some
“support [for] New York’s proper-cause requirement,” but Justice Thomas’s
opinion characterizes these statutes as “outliers.”
150
This characterization is illuminated by Professor DeGirolami’s three-
dimensional conceptualization of tradition in terms of age, longevity, and
density.
151
Assuming that the content of the Fourteenth Amendment’s right
to bear arms is constituted by historical tradition as of 1868, two state statutes
Immunities Clause—unlike his opinion in Dobbs, discussed supra note 98, which rejects the Due Process
of Law Clause as the basis for fundamental rights. Justice Thomas’s failure to discuss the closely related
question as to which clause grounds the incorporation of the right to bear arms may be a function of his
role as an originalist on a collegial court who needed to produce an opinion that would be joined by a
majority of his colleagues. The issues raised by that situation are discussed below. See infra Section IV.D.
For the record, our position is that the right to keep and bear arms was a privilege of U.S. citizens in 1868
and therefore this right was protected by the Privileges or Immunities Clause, but the reasons for our
conclusion are outside the scope of this Article.
147
142 S. Ct. at 2136.
148
Id. at 2163 (Barrett, J., concurring).
149
Id. at 2152–53.
150
Id.
151
DeGirolami, supra note 41, at 7–8.
118:433 (2023) Originalism After Dobbs, Bruen, and Kennedy
469
adopted three and nineteen years later do not establish that the right was
limited in the way assumed by the New York statute at issue in Bruen.
On the dimension of age, both statutes fail because they postdate the
Fourteenth Amendment—they were brand new. On the dimension of
longevity, neither statute had a long and continuous existence as of the
critical date, 1868. On the dimension of density, the statutes were confined
to two states. So as of 1868, there was no historical tradition that established
that the kind of restriction in the New York statute was consistent with the
right to bear arms. Neither the New York nor the West Virginia statute
satisfied the criteria of age, longevity, or density. Instead, these two statutes
were new, novel, and geographically isolated. And if the relevant date were
1791, both statutes were far too late to establish the content of the preexisting
legal right to bear arms as of that date.
Therefore, there is very strong evidence that Bruen’s historical tradition
test should be understood on the model provided by Possibility Two:
historical practice as of 1791 or 1868 provides the content of the preexisting
legal right to bear arms. If this understanding is correct, then the historical
tradition test operates at the level of constitutional interpretation—it provides
the content of the preexisting legal right to bear arms that is a component of
the original public meaning of the Second Amendment.
Possibility Three is that the historical tradition test in Bruen is best
understood as an implementing doctrine at the stage of constitutional
construction. That is, historical analogues are being used to decide whether
any particular application of the right to a particular statute is permissible.
Or, as Justice Kavanaugh put it in his concurring opinion: “The Court
employs and elaborates on the text, history, and tradition test that Heller and
McDonald require for evaluating whether a government regulation infringes
on the Second Amendment right to possess and carry guns for
self-defense.”
152
In Bruen, Justice Thomas quoted the Heller Court’s assertion that
“[l]ike most rights, the right secured by the Second Amendment is not
unlimited.”
153
If one takes the view (as we do) that the exercise of any
constitutional right may be reasonably regulated by the police power of the
relevant legislature—whether the plenary power of state legislatures or the
enumerated powers of Congress—this raises a question of constitutional
construction. Whatever constitutes a “reasonable regulation” within a proper
conception of the legislative power will not be included in the
communicative content of the right itself, however limited the contours of
152
142 S. Ct. at 2161.
153
Id. at 2128.
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this right may be. Put another way, however specifically history and tradition
shaped the original scope of the right, exercise of this specified right may
then be regulated (though not infringed or abridged).
An implementing doctrine is required to determine whether a given
restriction is a reasonable exercise of a proper legislative power and therefore
not an infringement of “the right to bear arms.”
154
Lower courts had been
using the important interest test as an implementing doctrine for cases falling
in the construction zone created by inclusion of a reasonable regulation
element in the implicit content of the “right to bear arms.” When it rejected
this test, the majority in Bruen could be viewed as adopting a historical
analogy test as a substitute implementing doctrine, which would be an
exercise of constitutional construction.
But is this what is going on? Is the historical tradition test of Bruen
premised on the need for an implementing rule that cashes out an implicit
“reasonable regulation” qualification of the right to bear arms? The case that
the historical tradition test is a rule of construction lacks direct support in the
text of Justice Thomas’s opinion in Bruen. There are two very similar
passages that invoke the concept of “reasonable regulation.” We quote the
first of these in full:
The historical evidence from antebellum America does demonstrate that the
manner of public carry was subject to reasonable regulation. Under the
common law, individuals could not carry deadly weapons in a manner likely to
terrorize others. Similarly, although surety statutes did not directly restrict
public carry, they did provide financial incentives for responsible arms carrying.
Finally, States could lawfully eliminate one kind of public carry—concealed
carry—so long as they left open the option to carry openly.
155
This passage is not consistent with the idea that the right to bear arms
is subject to an open-ended “reasonable regulation” restriction in which
“reasonableness” is assessed by a legislature or by a court. Instead, specific
regulations are identified as consistent with the proposition that a right to
open carry was part of the historical tradition that provided the content of the
preexisting legal right to bear arms. On this reading, historical analogues, or
the lack thereof, are being offered as evidence of the content of the
preexisting right that constitutes the original meaning of the right to keep and
bear arms.
154
It is very important to stress that the constitutional permissibility of the “reasonable” regulation
of a constitutional right does not entail either an implementing rule that legislatures are the ultimate judge
of the “reasonableness” of their regulations to which judges must defer, or that one delegates to judges
an open-ended power to review a statute for its “reasonableness.”
155
Id. at 2150 (emphasis added).
118:433 (2023) Originalism After Dobbs, Bruen, and Kennedy
471
There is another passage in Bruen that, at first blush, might be thought
to support the hypothesis that the historical tradition test is best viewed as an
implementing doctrine as a matter of constitutional construction. We quote
the two relevant paragraphs in full:
To be sure, “[h]istorical analysis can be difficult; it sometimes requires
resolving threshold questions, and making nuanced judgments about which
evidence to consult and how to interpret it.” But reliance on history to inform
the meaning of constitutional text—especially text meant to codify a pre-
existing right—is, in our view, more legitimate, and more administrable, than
asking judges to “make difficult empirical judgments” about “the costs and
benefits of firearms restrictions,” especially given their “lack [of] expertise” in
the field.
If the last decade of Second Amendment litigation has taught this Court
anything, it is that federal courts tasked with making such difficult empirical
judgments regarding firearm regulations under the banner of “intermediate
scrutiny” often defer to the determinations of legislatures. But while that
judicial deference to legislative interest balancing is understandable—and,
elsewhere, appropriate—it is not deference that the Constitution demands here.
The Second Amendment “is the very product of an interest balancing by the
people” and it “surely elevates above all other interests the right of law-abiding,
responsible citizens to use arms” for self-defense. It is this balance—struck by
the traditions of the American people—that demands our unqualified
deference.
156
This passage might be read as arguing against the important interest
implementing doctrine adopted by the lower federal courts in the wake of
Heller and, therefore, as offering the historical analogues test as an
alternative implementing doctrine. But Justice Thomas’s emphasis on the
existence of a “pre-existing right” as the basis for the legitimacy of the
historical practice test strongly suggests that it is the content of the right (and
not an implementing rule) that is at issue. So too is his reference to “reliance
on history to inform the meaning of constitutional text.”
What about Possibility Four? Is the historical tradition test actually a
modality of constitutional argument that operates within a nonoriginalist
framework? We believe that the answer to this question is clear. It would be
quite odd indeed for Justice Thomas to view the assignment to write the
majority opinion in Bruen as an opportunity to undermine the originalist
framework of Heller and move the constitutional jurisprudence of the Court
in the direction of Constitutional Pluralism and living constitutionalism. And
Justice Barrett’s question—“How long after ratification may subsequent
156
Id. at 2130–31 (emphasis added) (citations omitted).
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practice illuminate original public meaning?”
157
—indicates that she thinks
that the majority opinion was indeed an affirmation of the originalism
of Heller.
The case against Possibility Four is reinforced by the fact that Justice
Thomas’s opinion does not discuss whether the New York statute is justified
by a historical tradition that emerged in the late nineteenth or early twentieth
centuries. That period would be relevant if historical tradition had been
operating as an independent modality of constitutional interpretation, but
only the dissent by Justice Stephen Breyer makes note of the longevity of the
New York statutes.
158
We want to emphasize that our analysis of Bruen is based on the Court’s
understanding of the original meaning of the Second Amendment. We are
neither affirming nor rejecting the preexisting legal rights approach to
specifying that meaning; nor are we arguing that the historical tradition test
does, in fact, accurately identify the content of the preexisting legal rights.
Finally, we are not adopting the Court’s assumption that specifying the
precise content of the right renders unnecessary an implementing rule to
distinguish proper from improper regulations of the right so specified.
159
Rather, our modest claim is that the deployment of the historical
tradition test in Bruen operates within an originalist framework and is not a
rejection of originalism. If we are correct, then, in stark contrast with Dobbs,
Bruen is a thoroughly originalist opinion.
One important implication of our conclusion pertains to how lower
courts should be using the historical tradition test in assessing gun
regulations. On our understanding of what the majority in Bruen was doing,
the courts should be limiting themselves to historical practices that are close
in time to 1791 or 1868. They should not be relying on historical analogues
that have developed well after 1868.
C. Kennedy v. Bremerton School District
In Kennedy v. Bremerton School District, the Supreme Court addressed
the First Amendment issues raised by a high school football coach who was
157
Id. at 2163.
158
Id. at 2169 (Breyer, J., dissenting) (noting that “New York’s licensing regime traces its origins to
1911” and that the standards established then “have remained the foundation of New York’s licensing
regime ever since”).
159
For a critique of the historical analogues approach to assessing the propriety of gun regulations,
see Nelson Lund, Bruen’s Preliminary Preservation of the Second Amendment, 23 FED. SOC. REV. 279,
292 (2022), which argues that “the majority’s test is inherently manipulable . . . . Even if the Supreme
Court stops issuing ipse dixits that greenlight regulations a majority of the Justices don’t care to call into
question, all courts are going to face serious challenges in faithfully applying the Bruen test.”
118:433 (2023) Originalism After Dobbs, Bruen, and Kennedy
473
fired for praying on the field.
160
The Supreme Court ruled for the coach on
the basis of the Free Speech and Free Exercise Clauses.
161
In reaching those
conclusions, the majority opinion, authored by Justice Neil Gorsuch, also
found that the prayers offered by the coach did not violate the Establishment
Clause. The role of history and tradition in Kennedy is complex and likely to
be disputed, but in her dissenting opinion, Justice Sotomayor offered the
following characterization: “[T]he Court rejects longstanding concerns
surrounding government endorsement of religion and replaces the standard
for reviewing such questions with a new ‘history and tradition’ test.”
162
Our discussion will focus on the role of history and tradition in the
Court’s Establishment Clause analysis. As before, our aim is to clarify the
role of history and tradition. We do not take a position on the correctness of
the outcome in Kennedy from either a living constitutionalist or originalist
perspective.
To understand the majority opinion in Kennedy, we need to take a step
back and examine the convoluted history of the so-called Lemon test,
articulated by Chief Justice Warren Burger in Lemon v. Kurtzman and used
to assess whether a statute violates the Establishment Clause.
163
Lemon did
not attempt to determine the original meaning of the constitutional text,
insisting that “[t]he language of the Religion Clauses of the First Amendment
is at best opaque.”
164
Instead, Chief Justice Burger’s opinion for the majority
purported to find a test that had been “developed by the Court over many
years.”
165
The Lemon test had three parts: “First, the statute must have a
secular legislative purpose; second, its principal or primary effect must be
one that neither advances nor inhibits religion, . . . [and third], the statute
must not foster ‘an excessive government entanglement with religion.’”
166
Justice Gorsuch’s opinion in Kennedy began its analysis of the
Establishment Clause issue by observing that the district court and the Ninth
Circuit had relied on Lemon in reaching the conclusion that the school district
could prohibit the coach’s prayer in order to avoid an Establishment Clause
violation.
167
This was, Justice Gorsuch explains, in error:
What the District and the Ninth Circuit overlooked, however, is that the
“shortcomings” associated with this “ambitiou[s],” abstract, and ahistorical
160
142 S. Ct. 2407, 2415 (2022).
161
Id. at 2416.
162
Id. at 2434 (Sotomayor, J., dissenting).
163
403 U.S. 602 (1971).
164
Id. at 612.
165
Id.
166
Id. at 612–13.
167
Kennedy, 142 S. Ct. at 2427.
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approach to the Establishment Clause became so “apparent” that this Court long
ago abandoned Lemon and its endorsement test offshoot. . . . The Court has
explained that these tests “invited chaos” in lower courts, led to “differing
results” in materially identical cases, and created a “minefield” for
legislators. . . . An Establishment Clause violation does not automatically
follow whenever a public school or other government entity “fail[s] to censor”
private religious speech. . . . Nor does the Clause “compel the government to
purge from the public sphere” anything an objective observer could reasonably
infer endorses or “partakes of the religious.”
168
The role of history and tradition in Justice Gorsuch’s opinion in Kennedy
was to fill the gap created by the demise of the Lemon test:
In place of Lemon and the endorsement test, this Court has instructed that the
Establishment Clause must be interpreted by “reference to historical practices
and understandings.” “[T]he line” that courts and governments “must draw
between the permissible and the impermissible” has to “accor[d] with history
and faithfully reflec[t] the understanding of the Founding Fathers.” An analysis
focused on original meaning and history, this Court has stressed, has long
represented the rule rather than some “exception” within the “Court’s
Establishment Clause jurisprudence.” The District and the Ninth Circuit erred
by failing to heed this guidance.
169
Justice Gorsuch’s opinion states that “original meaning and history” are the
rule and not the exception.
Although the passage quoted above does not mention “tradition,” a later
passage does. A rule requiring schools to “fire teachers for praying quietly
over their lunch, for wearing a yarmulke to school, or for offering a midday
prayer during a break before practice” would “undermine a long
constitutional tradition under which learning how to tolerate diverse
expressive activities has always been ‘part of learning how to live in a
pluralistic society.’”
170
These passages are likely the source of Justice
Sotomayor’s statement that the majority opinion establishes “a new ‘history
and tradition’ test.”
171
Justice Gorsuch’s opinion is not analytically precise about the roles that
history and tradition play in the Court’s reasoning. The opinion seems to
assume that, as a matter of history, prayer like that in which the coach
engaged was not considered an establishment of religion, but no historical
analysis was actually presented in the opinion itself. Had there been such
168
Id. at 2427.
169
Id. at 2428 (citations and internal quotation marks omitted).
170
Id. at 2431 (citations omitted).
171
Id. at 2434 (Sotomayor, J., dissenting).
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475
analysis, then the Court would have been relying on historical practice as
evidence of original meaning.
Similarly, the majority opinion does not expound on the idea of “a long
constitutional tradition.” The opinion identifies the tradition as one of
toleration for “diverse expressive activity” and “learning how to live in a
pluralistic society.”
172
This identification suggests that the relevant tradition
is constituted by social norms and practices. But Justice Gorsuch does not
explain why and how the inconsistency of the district court’s rule with social
norms is relevant to the constitutional issue at hand. The next sentence
suggests that it is originalism and not tradition that is actually doing the
work: there is “no historically sound understanding of the Establishment
Clause” that would support the district court’s rule.
173
There are other cases in which the Supreme Court has made the role of
history and tradition in Establishment Clause jurisprudence more explicit.
174
One of these is Town of Greece v. Galloway, in which the Court held that a
town council’s opening prayer did not violate the Establishment Clause.
175
Justice Anthony Kennedy’s opinion for the Court explained the role of
tradition as follows:
[T]he Establishment Clause must be interpreted “by reference to historical
practices and understandings.” . . . That the First Congress provided for the
appointment of chaplains only days after approving language for the First
Amendment demonstrates that the Framers considered legislative prayer a
benign acknowledgment of religion’s role in society . . . . [I]t is not necessary
to define the precise boundary of the Establishment Clause where history shows
that the specific practice is permitted. Any test the Court adopts must
acknowledge a practice that was accepted by the Framers and has withstood the
critical scrutiny of time and political change.
176
It is clear that Town of Greece acknowledged an important role for
historical practice in Establishment Clause jurisprudence, but it is less clear
what the nature of that role is. On the one hand, the phrase “was accepted by
172
Id. at 2431.
173
Id.
174
See Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2087 (2019) (“While the Lemon Court
ambitiously attempted to find a grand unified theory of the Establishment Clause, in later cases, we have
taken a more modest approach that focuses on the particular issue at hand and looks to history for
guidance.”); Marsh v. Chambers, 463 U.S. 783, 790 (1983) (“No more is Nebraska’s practice of over a
century, consistent with two centuries of national practice, to be cast aside. It can hardly be thought that
in the same week Members of the First Congress voted to appoint and to pay a chaplain for each House
and also voted to approve the draft of the First Amendment for submission to the states, they intended the
Establishment Clause of the Amendment to forbid what they had just declared acceptable.”).
175
572 U.S. 565, 569–70 (2014).
176
Id. at 576–77 (citations omitted).
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the Framers” suggests that some sort of originalism is involved, although the
reference to Framers, rather than text, points in the direction of original
intentions originalism.
177
On the other hand, Town of Greece references “the
critical scrutiny of time and political change,” which suggests that historical
continuity itself provides independent support for constitutional doctrine.
178
At the end of the day, Kennedy v. Bremerton School District sheds very
little light on the role of history and tradition for the contemporary Supreme
Court. It strongly suggests that the original meaning of the constitutional text
is a crucial factor in constitutional analysis and that history is relevant to
identifying original meaning. It is much less clear whether Kennedy can be
read to endorse an independent role for historical practice and tradition in the
form of Conservative Constitutional Pluralism or Historical Traditionalism.
D. Making Sense of History and Tradition in the October 2021 Term
of the Supreme Court
The invocation of “history and tradition” in Dobbs, Bruen, and Kennedy
has generated considerable buzz,
179
but a close look at the cases themselves
does not reveal a dramatic shift in the roles that history and tradition play in
constitutional jurisprudence. As we have demonstrated, history and tradition
were used by the Court as evidence of original meaning and purpose—but
this role for history and tradition is nothing new. Indeed, it has always been
glaringly obvious that originalism requires consideration of history and
tradition. Likewise, there is nothing new about the idea that historical
practice and historical doctrines play important roles within Constitutional
Pluralism.
In Dobbs and Bruen, the Supreme Court articulated tests based on
history and tradition. But these tests served different functions in each case.
In Dobbs, the history and tradition test was used to identify substantive-due-
process-based unenumerated rights. This is best understood as operating
outside an originalist framework but within a constitutional pluralist
framework—although the gravitational force of originalism likely played a
role in the background. By contrast, in Bruen, we concluded that the history
and tradition test was used to identify the content of the preexisting legal
“right to bear arms,” secured by the Second and Fourteenth Amendments. (If
we are wrong about this, then it is likely that the historical analogues test is
177
Alternatively, this reference to “the Framers” could point to the original function or purpose of
the text, upon which Professors Barnett and Bernick base their theory of construction. For a summary of
their approach, see supra notes 19–22 and surrounding text.
178
572 U.S. at 577.
179
See sources cited supra note 1.
118:433 (2023) Originalism After Dobbs, Bruen, and Kennedy
477
being employed as an implementing doctrine, which is a constitutional
construction.)
Kennedy is harder to pigeonhole because its discussion of history and
tradition is brief and cryptic. But in prior cases like Town of Greece, the
Court employed a history and tradition test as a method of identifying
original public meaning. Practices that have gone unchallenged continuously
since the founding constituted a continuously existing Historical Tradition
that was consistent with the original meaning of the Establishment Clause.
To sum up, history and tradition tests are nothing new, and their use by
the Supreme Court is best understood as “business as usual.” There is,
however, another important lesson to be drawn from the references to history
and tradition in the Supreme Court’s October 2021 term. Close examination
of Dobbs, Bruen, and Kennedy reveals a “dog that did not bark.”
180
Despite
the buzz,
181
the opinions in these cases contain scant evidence of the
emergence of a new approach to constitutional interpretation that would
supplant either Public Meaning Originalism or Constitutional Pluralism
along the lines of what we have called “Historical Traditionalism.”
182
Instead,
the October 2021 term of the Supreme Court provides evidence that Public
Meaning Originalism and Constitutional Pluralism remain the two most
important judicial approaches to constitutional interpretation and
construction in the twenty-first century.
There is one final and important lesson to be learned from the October
2021 term: the dominant form of Constitutional Pluralism may have begun
to shift away from the progressive version that prevailed from the New Deal
Era to Justice Kennedy’s departure and towards a new Conservative
Constitutional Pluralism. The old version of Progressive Constitutional
Pluralism operated as an engine of constitutional innovation because it
emphasized modalities of constitutional argument that could be enlisted by
progressives and liberals in support of new constitutional rights and
expanded legislative and executive powers. We believe that Griswold v.
Connecticut,
183
Lawrence v. Texas,
184
and Obergefell v. Hodges
185
are
paradigmatic cases of the liberal and progressive version of Constitutional
180
An inference from “a dog that did not bark” is based on the notion that the absence of one fact
implies the existence of another. The aphorism is derived from Silver Blaze, a Sherlock Holmes story by
Sir Arthur Conan Doyle. See A. CONAN DOYLE, Silver Blaze, in MEMOIRS OF SHERLOCK HOLMES 1, 27
(1894) (explaining that a guard dog’s silence meant the dog knew the thief well).
181
See supra note 1.
182
See supra Section II.C.
183
381 U.S. 479 (1965).
184
539 U.S. 558 (2003).
185
135 S. Ct. 2584 (2015).
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478
Pluralism. In those cases, changing understandings of constitutional values
like privacy and liberty were the driving engines of constitutional change.
186
This new approach, Conservative Constitutional Pluralism,
187
is a
different animal altogether. As we understand it, this form of pluralism
eschews reliance on changing societal values and relies instead on the
backward-looking modalities of constitutional argument. These modalities
include the original meaning of the constitutional text, historical practice,
tradition, and precedent.
188
Each of these modalities looks towards the past
to the exclusion of new and emerging constitutional values.
It is important to emphasize, however, that both the progressive and
conservative variations on Constitutional Pluralism are nonoriginalist.
Because constitutional pluralists reject the priority of the textualist modality,
their approach permits them to support outcomes that are inconsistent with
the constitutional text. Moreover, the pluralist commitment to the equality of
the modalities means that a pluralist can support any outcome supported by
one of the modalities. This means that pluralists can prioritize the text in
some cases and precedent or historical practice in others. As originalists
ourselves, we would urge all judges to use history and tradition within Public
Meaning Originalism, not within the nonoriginalist approach of
Constitutional Pluralism, whether progressive or conservative. We now turn
to that topic.
IV. AN ORIGINALIST APPROACH TO HISTORY AND TRADITION
How should originalists approach history and tradition in light of
Dobbs, Bruen, and Kennedy? We address this question from the perspective
of Public Meaning Originalism.
189
That is, we are offering an approach to
history and tradition for constitutional actors, including judges and justices,
who believe that originalism provides the best approach to constitutional
interpretation and construction.
186
This is our understanding of these cases, but a demonstration of our conclusion is outside the
scope of this Article.
187
See supra text following note 77 (defining Conservative Constitutional Pluralism).
188
In this Article, we cannot fully explore the implications of Conservative Constitutional Pluralism.
A defining characteristic of this version of pluralism is that it employs backward-looking modalities. The
original meaning of the text, historical practice, tradition, and precedent all look to the past. For this
reason, the conservative version of Constitutional Pluralism can result in legal change that undoes a
progressive pluralist innovation and restores constitutional doctrines to a prior state. Thus, Dobbs moved
substantive due process doctrine on abortion back to the state it was in before Roe v. Wade. It may well
be that even Conservative Constitutional Pluralism can facilitate constitutional innovation in the form of
implementing doctrines that apply fixed original meaning to changing circumstances. The exploration of
these issues is beyond the scope of this Article.
189
See supra text accompanying notes 8–12 (discussing Public Meaning Originalism).
118:433 (2023) Originalism After Dobbs, Bruen, and Kennedy
479
A. Widely Shared Justifications for Originalism
Originalism is neither a purely descriptive nor purely normative theory;
it has both a descriptive and normative component. The Fixation Thesis—
the descriptive component—claims that the meaning of the Constitution is
the meaning that is “fixed” at the time of its enactment, whether in 1789 or
sometime later when an amendment is adopted. The Fixation Thesis is an
empirical claim about meaning; it describes how language actually works.
190
But originalism also has a normative component, the Constraint
Principle.
191
The Constraint Principle maintains that constitutional actors
ought to adhere to the fixed original meaning of the text and not change or
amend it to another meaning that they prefer. There are several arguments
for why constitutional actors ought to adhere to the original meaning of the
text. Most of these arguments are mutually consistent and reinforcing. The
greater the number of reasons there are for doing something, the stronger is
the case for doing that thing. Such is the case, we contend, for originalism.
To understand how originalists should utilize history and tradition, we
begin with the assumption that originalists accept one or more of the most
common normative justifications for originalism. Of course, each originalist
may have their own set of reasons for affirming originalism. For example,
each of us has offered a distinctive account of the normative, conceptual, and
empirical justifications for Public Meaning Originalism.
192
Nonetheless, we
believe that most originalists share the following normative premises
193
:
The Rule of Law: The normative ideal of the rule of law is an important political
value. Living constitutionalism undermines the rule of law because it authorizes
judges to make constitutional law on the basis of their own normative beliefs
about constitutional issues. Originalism serves the rule of law by requiring
judges to adhere to the original public meaning of the constitutional text.
The Separation of Powers: The separation of powers is essential to both
legitimacy and the preservation of liberty. Living constitutionalism undermines
the separation of powers because it empowers judges to both make and apply
constitutional law. Originalism confines judges to their legitimate role of
deciding cases on the basis of preexisting legal rules.
190
See generally Solum, Fixation Thesis, supra note 7 (presenting the empirical argument for the
Fixation Thesis).
191
See generally Solum, Constraint Principle, supra note 7 (articulating the normative argument for
the Constraint Principle).
192
For Professor Barnett’s normative case for originalism, see BARNETT, supra note 7, at 32–115.
For Professor Solum’s version of the case for originalism, see generally Solum, Fixation Thesis, supra
note 7; Solum, Public Meaning Thesis, supra note 7; and Solum, Constraint Principle, supra note 7.
193
This is our belief based on extensive participation in originalist events and discussions with many
originalists, but so far as we know, there is no survey research that confirms our impressions.
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
480
Popular Sovereignty: Popular sovereignty reflects the widely held political
value of democratic legitimacy. Living constitutionalism undermines popular
sovereignty by granting ultimate constitutional authority to unelected judges.
Originalism subordinates judges to the will of the people as expressed in a
constitution that has been ratified by either the people’s representatives in
constitutional conventions or by a supermajority of both Congress and the
states.
194
Of course, the normative debate between originalists and living
constitutionalists is complex and highly contested; and living
constitutionalists offer arguments for why their approach to constitutional
interpretation better serves each of these normative rationales, or that
originalism does not truly serve them. Our aim here, however, is simply to
restate three justifications that are widely shared by originalists.
B. Three Essential Originalist Roles for History and Tradition
Given these normative premises, how should originalists regard history
and tradition? We begin with the core originalist commitment: the original
public meaning of the constitutional text should bind constitutional actors.
This core commitment requires originalist judges to consider history and
tradition as sources of relevant, and sometimes highly probative, evidence of
original meaning. Thus, historical practice, historical precedent, historical
word usage, historical context, and tradition frequently provide evidence
favoring one interpretation of the constitutional text over another. For
originalists, consideration of such evidence of history and tradition is
mandatory, not optional. Originalist judges are bound by the original public
meaning of the constitutional text; this entails that they are obligated to
consider all the relevant evidence of original meaning in good faith.
Originalist judges can be bound by history and tradition in a second
way. For some constitutional provisions, history and tradition are part and
parcel of the original public meaning of the constitutional text. The clearest
example of this is the Preservation Clause of the Seventh Amendment.
195
That clause preserves the history and tradition of the jury trial as of 1791.
196
194
Professor Barnett has characterized the “collective” conception of popular sovereignty based on
“the will of the people” as a “fiction,” and has argued instead for an individualist conception of popular
sovereignty based on the background rights of “We the People,” each and every one. See BARNETT, supra
note 7, at 11–31, 361–69; see also RANDY E. BARNETT, OUR REPUBLICAN CONSTITUTION: SECURING
THE LIBERTY AND SOVEREIGNTY OF WE THE PEOPLE 31–81 (2016) (describing how the Framers of the
Constitution altered the existing majoritarian conception of popular sovereignty in favor of a more
individualist one).
195
U.S. CONST. amend. VII.
196
See Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 41–42 (1989); City of Monterey v. Del Monte
Dunes at Monterey, Ltd., 526 U.S. 687, 688 (1999); Dimick v. Schiedt, 293 U.S. 474, 490 (1935).
118:433 (2023) Originalism After Dobbs, Bruen, and Kennedy
481
Because history and tradition provide the content of the “right to trial by
jury” that is “preserved,” originalist judges are bound by that history and
tradition. As we demonstrate above, this second role for history and tradition
explains the use of the “historical tradition” test in Justice Thomas’s opinion
for the Court in Bruen in which he is seeking the precise content of a
preexisting right to keep and bear arms.
197
Originalist judges can be bound by history and tradition in a third way.
When implementing doctrines are needed to give legal effect to
indeterminate constitutional text, originalist judges should consider
themselves bound to examine history and tradition that clarifies the original
purpose of the constitutional provision. The first two roles for history and
tradition follow from widely accepted premises that almost all originalists
acknowledge. This third role is supported by a theory of constitutional
construction developed by Professors Barnett and Bernick.
198
Given that Barnett and Bernick’s theory of constitutional construction
is relatively new, some originalists may have different views about the
correct originalist response to cases in which the constitutional text cannot
be given legal effect without some implementing rule.
199
Be that as it may,
appealing to the original function or purpose of a constitutional provision to
faithfully implement its original meaning can be characterized as an appeal
to a sort of Framers’ intent—though not the type of subjectively held
intentions that Public Meaning Originalism rejects.
200
Rather, the original
function or purpose of the constitutional provision is used in the construction
zone, the boundaries of which are determined by the original public meaning
of the text.
201
The appeal to the original intent, if it is understood as referring
to the original function or purpose of a provision, is a kind of “moderate
originalism”
202
that even Paul Brest, the highly influential first critic of
originalism, conceded was a perfectly commonplace and “sensible”
methodology.
203
197
See supra Section III.B.
198
See generally Barnett & Bernick, supra note 19, at 3 (identifying and defending an originalist
theory of constitutional construction based on the original functions or purposes of a textual provision).
199
Another approach might involve a default rule of deference to elected officials. This possibility
is explored in Solum, Originalism and Constitutional Construction, supra note 7, at 511–22.
200
Id. at 464.
201
Id. at 475.
202
See Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. REV. 204,
205 (1980) (defining “moderate originalism” as “more concerned with the adopters’ general purposes
than with their intentions in a very precise sense.” (emphasis added)).
203
Id. at 231 (“Moderate originalism is a perfectly sensible strategy of constitutional
decisionmaking.”).
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
482
Just as originalist judges are bound to consider history and tradition in
the three ways discussed, originalist judges have obligations not to use
history and tradition in ways that are inconsistent with the original meaning
of the constitutional text. The clearest example of a forbidden use of history
and tradition involves a situation in which history and tradition could be used
to reach a nonoriginalist outcome for nonoriginalist reasons. For example, if
the original public meaning of Article I is inconsistent with plenary and
virtually unlimited national legislative power, an originalist should not defer
to Congress’s assertion of such power on the basis of a history and tradition
of deference by the courts to Congress for several decades starting with the
New Deal.
C. Originalism and Stare Decisis
Both originalists and constitutional pluralists must take a stance on the
role of stare decisis in constitutional decision-making. For this reason, our
discussion of the role of history and tradition in originalism would be
incomplete without some discussion of the role of stare decisis. Precedents
are part of history and can form a kind of tradition. And some precedents
may themselves be based on reasoning that employs history and tradition in
the various roles that we have identified.
204
Moreover, Dobbs, Bruen, and
Kennedy are themselves precedents that bind the lower courts and must be
considered by the Supreme Court.
Stare decisis has two dimensions: vertical and horizontal.
205
For the
purposes of this Article, we assume that both constitutional pluralists and
originalists would agree that vertical stare decisis is binding on lower court
judges.
206
So, the constitutional decisions of the Supreme Court are binding
on the lower federal courts, even if the Supreme Court decision is
inconsistent with the original public meaning of the constitutional text.
Vertical stare decisis is consistent, however, with criticism by originalist
lower court judges of the nonoriginalist decisions they are obliged to
follow.
207
We think such protests are healthy.
204
See supra Part II.
205
Lawrence B. Solum, Originalist Theory and Precedent: A Public Meaning Approach, 33 CONST.
COMMENT. 451, 459 (2018); Peter Wesley-Smith, Theories of Adjudication and the Status of Stare
Decisis, in PRECEDENT IN LAW 81–82 (Laurence Goldstein ed., 1987).
206
Professor Michael Paulsen may be an exception, but his written work is not clear on this point.
See Michael Stokes Paulsen, Abrogating Stare Decisis by Statute: May Congress Remove the
Precedential Effect of Roe and Casey?, 109 YALE L.J. 1535, 1538, 1573 (2000). We are not aware of any
other originalist who believes that the original meaning of the constitutional text should prevail over a
holding of the Supreme Court that would control an issue as a matter of vertical stare decisis.
207
Solum, Originalist Theory and Precedent, supra note 205, at 459.
118:433 (2023) Originalism After Dobbs, Bruen, and Kennedy
483
Horizontal stare decisis is different. We begin with the assumption that
horizontal stare decisis is not binding on the Supreme Court; that is, the Court
can overrule its own prior decisions.
208
When it comes to circuit court
precedents, most of the United States Courts of Appeal follow the law of the
circuit rule: a three-judge panel decision can only be overruled by an en banc
decision of the circuit.
209
For the purposes of this Article, we assume that these basic features of
the law of precedent are constitutionally valid. But there remains a
significant difference between originalists and constitutional pluralists in the
treatment of precedent for the Supreme Court and for en banc circuit court
panels, both of which are empowered to reject previous decisions of their
respective courts.
Constitutional pluralism includes precedent as a modality of
constitutional argument.
210
Given that there is no hierarchy of authority for
pluralists, stare decisis can play a decisive role. For example, stare decisis
might trump the original meaning of the constitutional text. But by the same
token, there will also be cases in which one or more of the other modalities
would justify overruling a constitutional precedent.
Originalists are divided on the question of the proper role of stare
decisis within originalism,
211
and we cannot argue for a resolution of the
division in this Article. Our own view is that originalists should have a
fundamentally different attitude towards the hierarchy of authority than
constitutional pluralists. For an originalist, the original public meaning of the
constitutional text should be viewed as binding and hence superior in the
hierarchy of authority to precedent.
In other words, we think that the commitment of originalists to the
Constraint Principle implies that the doctrine of horizontal stare decisis does
not justify the Supreme Court adhering to nonoriginalist precedent. When
we observe a conservative Justice freely using precedent to override clear
original meaning, we take this as an indication that this Justice is operating
as a constitutional pluralist. This would be accurate whatever the label that
Justice uses to describe him or herself.
There remains the question of the degree of certainty an originalist
Justice has about whether a precedent truly conflicts with original meaning.
208
Id.
209
Lawrence B. Solum, The Supreme Court in Bondage: Constitutional Stare Decisis, Legal
Formalism, and the Future of Unenumerated Rights, 9 U. PA. J. CONST. L. 155, 190 (2006) (describing
the law-of-the-circuit doctrine).
210
On Constitutional Pluralism, see supra note 77, which cites sources describing a pluralist
approach to constitutional interpretation and construction.
211
For a discussion of the issues, see Solum, supra note 193, at 457–59.
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
484
Our tentative approach to precedent is reflected in Justice Thomas’s
concurring opinion in Gamble v. United States
212
:
I write separately to address the proper role of the doctrine of stare decisis. In
my view, the Court’s typical formulation of the stare decisis standard does not
comport with our judicial duty under Article III because it elevates
demonstrably erroneous decisions—meaning decisions outside the realm of
permissible interpretation—over the text of the Constitution and other duly
enacted federal law. It is always “tempting for judges to confuse our own
preferences with the requirements of the law,” . . . and the Court’s stare decisis
doctrine exacerbates that temptation by giving the veneer of respectability to
our continued application of demonstrably incorrect precedents. By applying
demonstrably erroneous precedent instead of the relevant law’s text—as the
Court is particularly prone to do when expanding federal power or crafting new
individual rights—the Court exercises “force” and “will,” two attributes the
People did not give it . . . .
We should restore our stare decisis jurisprudence to ensure that we exercise
“mer[e] judgment,” . . . which can be achieved through adherence to the correct,
original meaning of the laws we are charged with applying. In my view,
anything less invites arbitrariness into judging.
213
There is much more to be said about originalism and precedent, but for the
purposes of this Article, we will simply assume that Justice Thomas’s
Gamble concurrence represents the best originalist approach to precedent.
The doctrine of horizontal stare decisis does not justify adherence to a
decision that is “demonstrably erroneous.” Neither historical doctrine nor a
tradition of judicial deference should be allowed to override the original
public meaning of the constitutional text.
D. History and Tradition on a Collegial Court
Without an Originalist Majority
Should an originalist judge write or join an opinion that reaches an
originalist result but relies on a constitutional pluralist framework
incorporating history and tradition? This question is deep and complex.
Supreme Court Justices and appellate court judges sit on collegial courts.
Given this fact, the role of history and tradition in judicial decisions may be
a function of compromise between originalist and nonoriginalist judges.
Moreover, the issues that we discuss here are not limited to cases in which
an originalist judge is faced with nonoriginalist uses of history and tradition.
An originalist judge may be faced with a potential majority nonoriginalist
212
139 S. Ct. 1960, 1981 (2019) (Thomas, J., concurring) (emphasis added) (citations omitted).
213
Id. (citations omitted).
118:433 (2023) Originalism After Dobbs, Bruen, and Kennedy
485
opinion that relies on modalities of constitutional argument other than history
and tradition. For example, as we have already noted, similar questions arise
with respect to precedent.
For the purposes of the discussion that follows, we will assume that an
originalist judge sits on a collegial court with both originalist and
nonoriginalist judges or Justices.
214
If there were a clear originalist majority
on the court, we assume that the opinions of the court would reach originalist
outcomes, articulate originalist holdings, and provide originalist reasoning,
subject to whatever theory of stare decisis is held by the originalist Justices.
Complications arise if the court lacks a clear originalist majority and
therefore sometimes reaches nonoriginalist outcomes, articulates
nonoriginalist holdings, and provides nonoriginalist reasoning. We make the
simplifying assumption that the nonoriginalist judges are constitutional
pluralists, some of whom consider modalities of constitutional argument that
involve history and tradition; other nonoriginalist judges may also consider
constitutional values and institutional concerns as well.
To sort out the complexities of originalist judging on a collegial court,
we need to identify the situations that confront originalist judges and the
options they have. The real world is messy, but Table 1 below captures the
essentials by describing five scenarios. Each scenario is a function of three
characteristics of an opinion:
(1) the outcome in the particular case, which can either be originalist or
nonoriginalist;
(2) the holding produced by the opinion, which can do one of three things:
(a) produce future outcomes that are identical to those produced by an
originalist holding, (b) produce future outcomes that are closer to those
that would be produced by an originalist holding, or (c) produce future
outcomes that are either (i) identical to a nonoriginalist status quo or
(ii) would move the content of constitutional doctrine even further
away from an originalist holding; and
(3) the reasoning that justified the outcome and the holding, which could
either be originalist or nonoriginalist.
214
These are assumptions and not descriptions of any court, including the Supreme Court. For the
purposes of this Article, we take no position on the originalist bona fides of the current Justices.
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
486
Originalist judges have four options in response to the five scenarios:
(1) join or write the majority opinion without a concurring opinion;
(2) join the majority opinion and write a concurring originalist opinion;
(3) concur in the outcome and write a separate concurring originalist
opinion; or
(4) dissent.
Table 1 describes each scenario and what we believe is the proper originalist
response.
TABLE 1: ORIGINALISM ON A COLLEGIAL COURT
Two of the scenarios represent easy cases for originalists. If an
originalist judge is confronted with the opportunity to write or join an
opinion with an originalist case outcome, originalist holding, and originalist
reasoning, the originalist response is clear: the originalist judge ought to join
or write the majority originalist opinion. Use of history and tradition should
Case Outcome Holding Reasoning Originalist Response
Scenario One:
Pure Originalist Majority
Originalist Originalist Originalist
Write or Join
Majority Opinion
Scenario Two:
Nonoriginalist Reasoning
for Originalist Outcome
and Holding
Originalist Originalist Nonoriginalist
Concur in the Majority
Opinion and Write
Originalist
Concurrence on
Reasoning
Scenario Three:
Nonoriginalist Holding
That Moves Law
Towards Originalism
Originalist
Nonoriginalist,
Moves Constitutional
Doctrine Closer to
Originalism
Nonoriginalist
Complex Choice
Given the
Gravitational Force
of Originalism
Scenario Four:
Nonoriginalist Holding
That Does Not Move the
Law Towards
Originalism
Originalist
Nonoriginalist,
Does Not Move
Constitutional
Doctrine Closer to
Originalism
Nonoriginalist
Do Not Join the
Majority Opinion,
Write Separate
Originalist
Concurrence
Scenario Five:
Pure Nonoriginalist
Majority
Nonoriginalist Nonoriginalist Nonoriginalist Dissent
118:433 (2023) Originalism After Dobbs, Bruen, and Kennedy
487
be limited to the originalist roles that we identify above.
215
This is Scenario
One, which we label “Pure Originalist Majority.”
The originalist response is equally clear if the majority opinion is
nonoriginalist with respect to case outcome, holding, and reasoning; in
Scenario Five, which we label “Pure Nonoriginalist Majority,” an originalist
judge should dissent. From an originalist perspective, it should not matter
whether the pure nonoriginalist majority opinion is based on a conservative
or progressive form of Constitutional Pluralism. And it should not matter
whether the majority case outcome or holding is one that the originalist judge
likes or dislikes. Originalism entails that judges have a duty to dissent from
outcomes that are inconsistent with original meaning; likewise, originalism
counsels judges to avoid holdings that will lead to nonoriginalist outcomes
in the future.
216
What about the situation where both the case outcome and the holding
are originalist, but the reasoning is nonoriginalist (e.g., a constitutionalist
pluralist opinion based on history and tradition)? This is Scenario Two in
Table 1. The crucial question for an originalist judge is whether to join the
majority opinion. From an originalist perspective, there is a pro tanto reason
not to join: by joining an opinion with nonoriginalist reasoning, the
originalist judge might legitimate nonoriginalism.
In some cases, however, the failure to join the nonoriginalist opinion
would have the consequence that the proposed majority opinion would fall
short of the necessary number of votes. The case outcome would remain
originalist, but the originalist holding might be vitiated. On the Supreme
Court, for example, we could imagine that the result of the originalist
Justice’s failure to join would be four Justices joining the nonoriginalist
opinion, one separate concurrence in the outcome, and four dissenting
opinions. This scenario might result in lower courts disregarding what would
have been an originalist holding and hence in fewer originalist outcomes in
lower court decisions.
217
Given this uncertainty, there is a strong reason for the originalist judge
to join in the majority opinion if the vote of the originalist judge is necessary
215
See supra Section II.A.
216
See infra Section IV.E.
217
This scenario presents a number of complexities that are beyond the scope of this Article. In
particular, we will not discuss the application of the Marks Rule that originated in United States v. Marks.
430 U.S. 188, 193 (1977) (“When a fragmented Court decides a case and no single rationale explaining
the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken
by those Members who concurred in the judgments on the narrowest grounds . . . .’” (citations omitted)).
For a general discussion of that rule and its difficulties, see Richard M. Re, Beyond the Marks Rule,
132 HARV. L. REV. 1942, 44 (2019), which argues that “fragmented Supreme Court decisions have
continued to bedevil both state and federal courts.”
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
488
to sustain a holding that is identical or nearly identical to the constitutional
doctrine required by the original meaning of the constitutional text. The
originalist judge should then write a separate opinion that presents the
originalist reasoning that supports the originalist outcome; in this way, the
originalist judge can limit the legitimating effect of their joining the
nonoriginalist majority.
If the case outcome is originalist but the holding is not, the situation is
quite different. There are two different scenarios. One possibility is that the
nonoriginalist holding nonetheless moves the implementing doctrines in the
direction of originalism. We discuss this important possibility which
implicates the gravitational force of originalism in Section IV.E, which
immediately follows this section.
But there is another possibility: the opinion with an originalist case
outcome might produce a holding that is identical to the status quo or that
moves implementing doctrines away from originalism. This possibility is
Scenario Four in Table 1. Under these circumstances, an originalist judge
should concur in the result but not in the majority opinion. Given that both
the holding and the reasoning are nonoriginalist, there is no reason for an
originalist judge to join a majority opinion that does not move the law in an
originalist direction.
Instead, an originalist judge should write a separate opinion concurring
only in the judgment. This conclusion should hold whether or not the opinion
produces a result that the originalist judge would favor as a matter of the
judge’s own preferences. And originalist judges should not join such
opinions, regardless of whether the reasoning is based on nonoriginalist uses
of history and tradition.
We have now considered all the scenarios except the third. Scenario
Three involves a (potential) majority opinion that reaches an originalist
outcome and produces a holding that is nonoriginalist but that moves
constitutional doctrine closer to originalism than the status quo. This
situation involves what is called “the gravitational force of originalism.”
218
E. The Gravitational Force of Originalism
Scenario Three involves a situation in which a nonoriginalist history-
and-tradition majority opinion produces an originalist outcome in the case
and moves constitutional doctrine closer to the correct originalist holding.
On the surface, it might seem that an originalist judge should join or even
write the nonoriginalist history-and-tradition opinion because of the
218
Barnett, supra note 68, at 420.
118:433 (2023) Originalism After Dobbs, Bruen, and Kennedy
489
gravitational force of originalism.
219
Moving the doctrine in the direction of
an originalist outcome seems like what has been called an “originalist second
best.”
220
Here is how Professor Solum explains this idea:
Given that a thoroughly originalist jurisprudence is infeasible (at least in the
short to medium run), some originalists endorse the idea that there can be an
“originalist second best”: given the practical impossibility of the first-best
originalist interpretation of the Commerce Clause, the originalist might argue
for doctrines that limit departures from original meaning to those required by
practical necessity. Such doctrines mitigate the damage done to original
meaning by precedent and practice.
221
Thus, an originalist Justice who believed that Roe v. Wade was inconsistent
with the original public meaning of the Due Process of Law Clause of the
Fourteenth Amendment might join the majority opinion in Dobbs—even
though the Dobbs opinion endorsed a nonoriginalist history-and-tradition
approach to substantive due process. Justice Thomas’s concurring opinion
might be read this way: Justice Thomas joined the majority opinion but wrote
separately to disagree with its nonoriginalist implications.
222
The notion of an originalist second best has clear attractions for
originalists, but there are reasons for originalists to be cautious in adopting a
living constitutionalist strategy to achieve second-best originalist results. For
originalism to produce gravitational force, we must know the actual original
public meaning of the constitutional text. That is, if an originalist judge is
going to write or join a second-best opinion that moves constitutional
doctrine in the direction of original meaning, the judge must know the actual
original meaning.
Sometimes, original meaning is clear and well-established by the
evidence. We can call cases of this sort “originalist easy cases.” In these
cases, the pull of the gravitational force of originalism is strongest. But even
in originalist easy cases, an originalist judge would have the responsibility
219
See supra Section II.A.3.
220
For the general idea of the second best in constitutional theory, see Lawrence B. Solum,
Constitutional Possibilities, 83 IND. L.J. 307, 311–12 (2008). On the notion of an originalist second best,
see Lawrence B. Solum, How NFIB v. Sebelius Affects the Constitutional Gestalt, 91 WASH. U.L. REV.
1, 54 (2013). The phrase “compensating adjustment” has also been used to describe a similar idea. See
Mark Moller, Internal Separation of Powers, Compensating Adjustments, and Court Rulemaking,
36 REV. LITIG. 579, 591–95 (2018); Adrian Vermeule, Foreword: System Effects and the Constitution,
123 HARV. L. REV. 4, 20 (2009).
221
Solum, How NFIB v. Sebelius Affects the Constitutional Gestalt, supra note 206, at 54.
222
See Dobbs, 142 S. Ct. at 2300 (Thomas, J., concurring) (“I write separately to emphasize a second,
more fundamental reason why there is no abortion guarantee lurking in the Due Process Clause.
Considerable historical evidence indicates that ‘due process of law’ merely required executive and
judicial actors to comply with legislative enactments and the common law when depriving a person of
life, liberty, or property.”).
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
490
to examine the salient evidence and determine the valence of the
gravitational force of originalism.
It is theoretically possible for an originalist judge to write a majority
opinion that lays out the evidence, reaches a conclusion about original
meaning, and then explains why the nonoriginalist outcome is justified as
second-best. But it seems likely that in many or most cases, this will not
occur. For one thing, such an opinion would openly embrace an override of
original meaning on the basis of feasibility (or some other pragmatic
concern). This embrace would undermine originalism because it implies that
the original meaning of the constitutional text is not truly binding.
Explicit second-best originalism is especially unlikely to occur in a
majority opinion, because the gap between the original meaning of the
constitutional text and the second-best outcome suggests that the holding is
wrong from a first-best perspective. Originalist judges would naturally be
reluctant to write an opinion that both undermines the holding in the case and
undermines originalism itself.
So, it seems likely that second-best originalism will sometimes or
frequently involve “off-the-books” originalist analysis. Instead of the
originalist reasoning appearing in the opinion, it would take place in
chambers (perhaps with discussion of memoranda written by clerks of the
original meaning) or perhaps in the private mental deliberations of an
originalist judge. Off-the-books originalism is deeply problematic outside of
originalist easy cases.
Let us call the cases that are not easy “originalist hard cases.” Such
cases can be hard for a variety of reasons. The question might be one where
there is a paucity of originalist research: we might not know the original
meaning. Or there might be a substantial amount of originalist research, but
the evidence and arguments might conflict, creating a different kind of
uncertainty about original meaning.
Resolving originalist hard cases on the basis of off-the-books
originalism is problematic. As scholars who have engaged in originalist
research and theorizing for decades, our sense is that off-the-books
originalism creates substantial risks of error.
223
On-the-books originalism
provides opportunities for vetting the evidence and arguments; off-the-books
223
For example, while Professors Barnett and Bernick agree with Justice Thomas’s limited definition
of “liberty” in phrase “life, liberty, and property” in Section 1 of the Fourteenth Amendment, they
nevertheless reject Justice Thomas’s overly narrow interpretation of “the due process of law” in Section 1.
They contend instead that the “due process of law” also requires that a deprivation of “life, liberty, and
property” be by a properly enacted statute that is within the legislature’s power to enact. See BARNETT &
BERNICK, supra note 109, at 261–88. But because Justice Thomas merely alludes to the evidence of
original meaning rather than presenting it, criticizing his position is difficult.
118:433 (2023) Originalism After Dobbs, Bruen, and Kennedy
491
originalism lacks the safeguards provided by scrutiny from fellow judges on
a collegial court. And if the originalism is off-the-books, the resulting
opinion will lack transparency. Scholars and lawyers cannot scrutinize off-
the-books originalist reasoning, because, by definition, it will not appear in
the opinion itself.
For all of these reasons, we believe that off-the-books originalism
should be avoided except in originalist easy cases. The gravitational force of
originalism is important. An originalist second-best is likely to be better
than a nonoriginalist worst-case scenario. In originalist easy cases, the
gravitational force of originalism is steady and true, but in originalist hard
cases, the risk of error is high and mistakes may be difficult to correct.
224
Doing on-the-books originalism in cases where the majority opinion
moves the law in an originalist direction on the basis of nonoriginalist
reasoning requires that an originalist judge write a concurring opinion that
lays out the evidence and makes the basis of the judges’ vote transparent. If
the originalist judge also joins the majority opinion, the originalist judge’s
concurrence should make it clear that, in a future case, the originalist judge
would support a move from the second-best holding in the instant case to a
first-best originalist holding.
By way of summary, we offer the following rules of thumb for
originalist judges who have the option of joining a majority opinion that
reaches an originalist case outcome on the basis of nonoriginalist reasoning
and moves the law in the direction of originalism with a nonoriginalist
holding. The gravitational force of originalism is strongest when the original
meaning of the constitutional text is clear and well-established by
scholarship or prior judicial opinions. When the original meaning is cloudy
and the evidence has not been fully assessed, originalist judges should be
wary of creating new doctrines or dramatic changes in the law on the basis
of off-the-books originalism. Absent clear evidence of original meaning, the
concern for the rule of law that motivates originalism itself counsels
originalist judges to leave existing law (in the form of precedent or validly
enacted statutes) in place.
224
Once an appellate court decides a case and articulates a holding, the holding will have binding
effect on lower courts on the basis of the doctrine of vertical stare decisis. Of course, the nonoriginalist
holding based on a mistaken but unarticulated assumption about original meaning would not be binding
as a matter of horizontal stare decisis, but if the assumption about original meaning was off-the-books,
there will be obstacles to any attempt to correct the holding. For one thing, if the court was unwilling to
reach the originalist result on the basis of originalist reasoning in the first place, it seems unlikely that a
majority would be willing to overrule a prior decision on the basis of an unarticulated mistake about
original meaning. Moreover, advocates in future cases will be unaware of the mistaken assumption and
hence would be less likely to appeal on this ground.
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
492
CONCLUSION
The relationship between originalism on the one hand and history and
tradition on the other is both simple and complex. Simple, because history
and tradition are obviously relevant from an originalist perspective.
Historical evidence is the lifeblood of originalism. Historical linguistics is
the key to the original meaning of the words and phrases that make up the
constitutional text. Historical context disambiguates and enriches semantic
meaning. Historical practice and historical doctrine frequently provide
evidence of original meaning. And sometimes history and tradition are
constitutive of the original meaning: the Seventh Amendment is an example.
But the relationship between originalism, history, and tradition is also
complex, because history and tradition can also be used in nonoriginalist
frameworks. For example, Constitutional Pluralism can include history and
tradition as modalities of constitutional argument. The recent emergence of
Historical Traditionalism points to an even more radical use of text and
history as the basis of an approach to constitutional interpretation and
construction that rivals both originalism and living constitutionalism.
Due to the Supreme Court’s decisions in Dobbs, Bruen, and Kennedy,
the simple and complex relationships between originalism, history, and
tradition have come to the fore. On the surface, these decisions might be read
as a change in direction—a move away from originalism and towards a
nonoriginalist role for history and tradition. But that surface impression is
misleading. History and tradition have long played a role in constitutional
jurisprudence. There is, one might say, a history and tradition of “history
and tradition.”
Perhaps our most important conclusion is that, upon close examination,
we find that none of the cases from the October 2021 Supreme Court term
represent a radical departure from prior uses of history and tradition by both
public meaning originalists and constitutional pluralists. The Court has not
embraced a novel history-and-tradition alternative to either originalism or
living constitutionalism. We established this conclusion by clarifying the
nature of the reasoning in these three cases.
We conclude that, in the end, Justice Alito’s majority opinion in Dobbs,
like his opinion in McDonald, employs Conservative Constitutional Pluralist
reasoning to reach an arguably originalist result.
225
To be sure, some of his
225
To reiterate, we take no position in this Article on the correctness of the result on originalist
grounds in either Dobbs or Bruen. But we acknowledge that many, if not most, originalists believe
the outcomes in both cases are correct. See, e.g., J. Joel Alicea, An Originalist Victory,
CITY J. (June 24, 2022), www.city-journal.org/dobbs-abortion-ruling-is-a-triumph-for-originalists
[https://perma.cc/KSX5-X7U3] (“Dobbs is a tremendous victory for originalism, even if the Dobbs
118:433 (2023) Originalism After Dobbs, Bruen, and Kennedy
493
evidence and analysis does pertain to the original meaning of the Fourteenth
Amendment in 1868. But, in the end, he purports to be applying the
precedent of Glucksburg, which is a doctrine for implementing a
nonoriginalist reading of the Due Process of Law Clause. The best
explanation of his opinion as a whole is provided by Constitutional
Pluralism. We take Justice Thomas’s concurrence in Dobbs to be supportive
of our characterization of Justice Alito’s opinion of the Court as
nonoriginalist.
We do not mean here to be questioning the sincerity of Justice Alito’s—
or any other Justice’s—claim to be an originalist. Justices can believe in
originalism in their heart-of-hearts, while at the same time believe that their
role as a judge on a collegial court requires them to elevate a precedent that
relies on deeply-rooted history and tradition above the original meaning of
the text. It seems likely to us that a sincerely committed “practical
originalist” Justice could employ Conservative Constitutional Pluralist
methodology to reach originalist results—although such a Justice might be
basing that conclusion on less-than-reliable off-the-books originalism.
In contrast, Justice Thomas’s majority opinion in Bruen employs
thoroughly originalist reasoning in its effort to identify the meaning of the
“right to . . . bear arms.” This is obviously true with regard to its adoption of
Heller’s identification of the original meaning of “bear arms.” At first blush,
the historical tradition test might appear to be a nonoriginalist
implementation doctrine in the construction zone, rendering Bruen a hybrid
opinion. We think, however, that a close reading of Justice Thomas’s
reasoning reveals he is appealing to the historical tradition test to identify the
exact contours of the preexisting legal right to keep and bear arms in either
1791 or 1868.
If we are right, then Justice Thomas’s opinion in Bruen is using the
historical tradition test at the interpretation stage to determine the original
public meaning of the constitutional text. Another implication of our reading
is that lower courts must search for historical analogues that bear on this
original meaning of the right, rather than some tradition that may have
developed after 1868 (or perhaps 1791 if that is the relevant date).
In contrast with both Dobbs and Bruen, the Court’s discussion of
history and tradition in Kennedy v. Bremerton School District is so brief that
no firm conclusions can be drawn about its general significance. And the
same can be said for the similar discussion in the Court’s prior decision in
opinion could be characterized as non-originalist in its methodology . . . . [O]riginalism is the theory that
made obvious to lawyers, judges, and the general public that the Roe and Casey decisions were
insupportable as a matter of constitutional law, and it is the theory that formed the legal views of the
justices who voted to overrule those decisions.”).
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
494
Town of Greece v. Galloway. Our view is that the best reading of these cases
is that they employ a long and unbroken tradition as evidence of the original
meaning of the Establishment Clause, although it is possible (but less likely)
that they use history and tradition as a doctrine to implement the original
meaning of the Clause. What this line of cases clearly does not represent is
an independent role for historical practice and tradition, either in some form
of Conservative Constitutional Pluralism, or as a new alternative both to
originalism and living constitutionalism.
In this Article, we have argued for an originalist approach to history and
tradition. History and tradition are essential elements in the originalist
toolkit: no originalist should leave home without them. But originalists
should be wary of the use of history and tradition by nonoriginalists, whether
they be Progressive or Conservative Constitutional Pluralists. An originalist
embrace of history and tradition that is inconsistent with the original public
meaning of the constitutional text would undermine originalism itself and
sacrifice the rule of law, the separation of powers, and popular sovereignty
on the altar of pragmatism and political expediency. Our message is simple:
“Originalists, don’t go there!”