In three major cases at the end of June, the Supreme Court has relied upon a “history and tradition” test to define the scope of constitutional rights and federal powers. Writing for the Court in Dobbs v. Jackson Women’s Health Organization, Justice Alito overruled Roe v. Wade held that the Constitution did not protect a right to abortion and that unenumerated rights and liberties “must be deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty,” quoting Washington v. Glucksberg in support. In Kennedy v. Bremerton School District, Justice Gorsuch overruled Lemon v. Kurtzman’s test for a violation of the Establishment Clause and held, “The line that courts and governments must draw between the permissible and the impermissible has to accord with history and faithfully reflect the understanding of the Founding Fathers.” And in New York State Rifle & Pistol Association v. Bruen, Justice Thomas rejected reliance on intermediate scrutiny in considering government regulation of firearms under the Second Amendment, holding that the government must show a firearm regulation is support by the text, “as informed by history,” or “comported with history and tradition.” In each case, the Court expressly or implicitly rejected a tiered scrutiny framework and chose to focus instead on how the scope of the right was historically defined within the Anglo-American tradition.
What do “history and tradition” mean in these contexts, and why should they be important? By this test, the conservative majority intends to ground American law within a broader tradition to avoid the temptation of “living constitutionalism.” Yet these cases also demonstrate the problem of originalist reliance on history only at specifically favored moments in time, rather than incorporating a broader understanding of the tradition in which they are embedded. And if the “history and tradition” test is ultimately not grounded in the legal and philosophical substance of that tradition—the natural law and the Western classical legal tradition, as interpreted by English jurists—then they are at best half-hearted and superficial attempts to recall that tradition and will be easily manipulated in future cases.
A 100-Year History of “History and Tradition”
The trilogy of cases relying upon “history and tradition” arise in different legal contexts, yet the parallel tests demonstrate the current Court’s conservative majority is drawing upon a line of cases most expressly cited in Dobbs—the 1997 case of Washington v. Glucksberg. Yet this line of cases runs through a surprisingly short list of both conservative and liberal plurality opinions, concurrences, and dissents.
Glucksberg concerned the standard for deeming a right “fundamental” to an individual’s liberty interest protected under the Due Process Clause. Glucksberg held that the Due Process Clause of the 14th Amendment “specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition … and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Glucksberg, 521 U.S. 702, 721 (1997) (internal citations and quotations omitted). While the Court unanimously upheld the Washington statute banning physician-assisted suicide, Chief Justice Rehnquist’s majority decision was joined only by his four more conservative colleagues, Justices Kennedy, O’Connor, Scalia, and Thomas.
Rehnquist took the phrase “deeply rooted in this Nation’s history and tradition” from Justice Powell’s plurality opinion in Moore v. City of East Cleveland, a 1977 case that overturned a restrictive definition of “family” for the purposes of defining a “single-family dwelling.” Joined by Justices Brennan, Marshall and Blackmun, Justice Powell wrote, “Our decisions establish 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.” Moore, 431 U.S. 494, 503 (1977) (plurality). However, Justice Stevens wrote separately concurring in the judgment on the grounds of the Takings Clause rather than relying on Due Process, and the four more conservative justices Burger, Stewart, Rehnquist, and White dissented and would have upheld the ordinance. Justice White in particular worried that the plurality’s reliance on history and tradition “would broaden enormously the horizons of the [Due Process] Clause; and, if the interest involved here is any measure of what the States would be forbidden to regulate, the courts would be substantively weighing and very likely invalidating a wide range of measures that Congress and state legislatures think appropriate to respond to a changing economic and social order.” Id. at 549-50 (J. White, dissenting).
In arriving at his formulation of “deeply rooted in this Nation’s history and tradition,” Justice Powell relied most heavily on Justice Harlan’s concurrence in Griswold v. Connecticut, in which he stated that judicial restraint in expansion of the Due Process Clause “will be achieved … only by continual insistence upon respect for the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles that the doctrines of federalism and separation of powers have played in establishing and preserving American freedoms.” 381 U.S. 479, 501 (1965) (J. Harlan, concurring). Justice Harlan himself refers back to his dissent in Poe v. Ullman, which rejected an initial challenge to the Connecticut contraception statute at issue in Griswold on justiciability grounds. Justice Harlan’s dissent in Poe is one of those famous dissents that is treated almost as a majority opinion, for Harlan’s dissent forms the backbone of the later decision in Griswold. In Poe, Harlan discusses at length Meyer v. Nebraska, the 1922 case authored by Justice McReynolds that established the modern doctrine of Substantive Due Process.
Before turning to Meyer below, here is a quick round-up of the three other cases Powell cites. First, he cites generally a discussion from Ingraham v. Wright, 430 U.S. 651, 672-74 and nn. 41-42 (1977), a case finding corporal punishment in schools was not unconstitutional under the Substantive Due Process Clause. Powell also cites Justice Frankfurter’s concurrence in the badly fractured Joint Anti-Fascist Refugee Committee v. McGrath, in which the Court reversed a dismissal of suit by Communist organizations and individuals seeking to block actions brought by the Loyalty Review Board of the U.S. Civil Service Commission. The six-member majority fractured among five opinions. Reaching the case holding on due process grounds, Justice Frankfurter wrote, “Due process is compounded of history, reason, the past course of decisions, and stout confidence in the strength of the democratic faith which we profess.” 341 U.S. 123, 162-63 (1951) (J. Frankfurter, concurring). Finally, Powell cited Justice Holmes’ dissent in Lochner v. New York, 198 U.S. 45, 76 (J. Holmes, dissenting) (“[T]he word ‘liberty,’ … is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said … the statute proposed would infringe fundamental principles as … understood by the traditions of our people and our law.”).
From this genealogy, we see that “history and tradition” have a roughly 100-year history. In only one case, the 5-4 Glucksberg decision, did a majority of the Court adopt the test. And before Glucksberg, the “history and tradition” standard trumpeted by conservatives today was actually most heavily relied upon by liberal jurists on the Court.
Meyer v. Nebraska and The Creation of “History and Tradition“
Therefore, the “history and tradition” standard has a somewhat checkered path. Yet it does have one point going for it: “history and tradition” was relied upon in Meyer v. Nebraska, the case that is typically considered the genesis of Substantive Due Process jurisprudence. Let’s turn to that case.
Does Meyer shed some light on what we mean by “history and tradition”? It does, but perhaps not in the way its advocates would hope. Justice McReynolds states grandly, “[Liberty] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” 262 U.S. 390, 399 (1923). It then cites numerous cases in support regarding rights the Court had had occasion to consider whether they were “privileges long recognized at common law”—including, ironically, the Slaughter-House Cases (which minimized the scope of the Privileges and Immunities Clause), and Lochner and several of its progeny cases, which have since been overruled. Nevertheless, McReynolds’ point is that the parents’ decisions for the education of their children were recognized as one of those long-held liberties, and the Nebraska statute forbidding the teaching of any modern foreign language in schools infringed on that liberty.
However, McReynolds does not cite any cases in support of such a liberty interest in parental control of education. Perhaps he felt he had no need to—I think most conservatives today would consider parental control of children’s education to be one of those bedrock freedoms we hold dear, and in any case, almost everyone would find a complete prohibition on teaching foreign language “an uncommonly silly law,” to borrow Justice Stewart’s description of the Connecticut contraception statute in his Griswold dissent.
Yet McReynolds’ failure to cite any legal support for his holding that instruction in modern language is within the scope of the educational liberty interest lays bare two problems for defining the “history and tradition.” One, it is not legal analysis, and two, it fails to set an appropriate frame. From these first two problems arise a third, and the most concerning—by relying on history and tradition, the Court loses sight of the inner logic animating the decisions of that history and tradition in the first place.
How “History and Tradition” Fails as a Test
First, it becomes clear that McReynolds is doing historical analysis masquerading as legal reasoning. A judge should be able to look to history and tradition because that legal reasoning is hopefully present—but if it is not, then the history test suddenly does not seem to be very persuasive. Or perhaps that history is muddled and ambiguous—what then should we say about the importance of the right at issue? The history and tradition test turns a judge’s construction of a legal right into a historian’s sleuthing—but judges are trained in the law, not history. Moreover, reliance on history rather than legal reasoning from first principles is essentially like the difference between inductive and deductive reasoning. Inductive reasoning infers a conclusion from circumstantial evidence, in this case historical facts. But new evidence may ultimately change the conclusion. Deductive reasoning instead begins from first principles to prove a conclusion–new facts should not change the basic principles relied upon.
The second problem is one of framing—what is the right in question, and what history and tradition are relevant to that right? We may generally agree that questions about education should be open to parental input and approval—but does this necessarily include modern languages in school? Interestingly, Justices Holmes (a liberal) and Sutherland (one of the conservative Four Horsemen) dissent from Meyer. In a dissent written in Meyer’s companion case Bartels v. Iowa, Holmes acknowledges the reasonable objection to the ban on teaching languages, but he adds, “No one would doubt that a teacher might be forbidden to teach many things, and the only criterion of his liberty under the Constitution that I can think of is whether, considering the end in view, the statute passes the bounds of reason and assumes the character of a merely arbitrary fiat.” 262 U.S. 404, 412 (1923) (J. Holmes, dissenting). Holmes disagrees that the bar on teaching foreign languages is such a “merely arbitrary fiat” and would uphold the law. Yet if the frame is drawn broadly enough, one can smuggle just about anything in under such a broadly defined liberty interest. Perhaps McReynolds is right to draw the frame of “education” around teaching modern languages, but he does not do the work of tying the narrower issue to the broader framework. The subsequent path of the “history and tradition” test confirms this problem: If Justice Harlan can find a constitutional right to contraception within the broad liberties granted to the family based on “history and tradition,” then conservatives should not look to the “history and tradition” test as a consistent bulwark against the creation of new constitutional rights.
These two initial problems—historical analysis under the guise of legal reasoning, and setting the appropriate frame—combine to create the third and biggest problem. By looking at the results of “history and tradition,” the majority fails to appreciate and apply the inner logic of that history and tradition. To put it another way, history tells us that something happened: that, for example, abortion was restricted or banned for a significant time, from the very founding of the United States; or that individual adults in putatively secular schools have found time to pray on campus, sometimes joined by students, and sometimes in close proximity to their official jobs; or that guns were widely available and not typically banned from private use. But applying historical fact alone does not tell us why abortion was banned—because the individual child’s life was deemed a separate entity entitled to a basic protection. It does not tell us why teachers would be known to pray, or for the same reason why legislators would open services in prayer—because these roles and jobs, deeply embedded in the advancement of the common good, relied in part on the grace of God’s wisdom and counsel to succeed. And it does not tell us why guns were commonly available—for self-defense on the open frontier and for use in militias or posses if the government obliged men to come to the common defense.
In effect, reliance on the “history and tradition” standard is an attempt to adopt some of the historical rights (or not) found in the natural law and based in the common good without adopting the logical basis for those decisions. But I fear that the conservatives will find that they cannot have it both ways. We have seen politically liberal legal scholars such as Akhil Amar and Jack Balkin adopt originalism for progressive ends. As Justices Harlan and Powell have shown, they can do the same for history and tradition too.
The conservative majority does seem to recognize this problem, and in accordance with the originalist jurisprudence adopted by most of its members, they further tie the rights to those recognized in 1789 with the adoption of the Bill of Rights or 1868 with the ratification of the 14th Amendment. But if this does serve as some kind of limit, it is not a particularly strong or persuasive one. Fossilizing constitutional interpretation may tether the scope of unenumerated rights and appropriate regulations of those rights to an older time, but doing so ignores that law is an application of reason to define ordinances for the advancement of the common good according to the conditions of society at a given point in time. New situations arise, new technology must be addressed, and new communities must be brought within that common good. Declaring, for example, that only those gun regulations in common use in 1789 are permissible today may limit the abridgement of the right, but I do not find it persuasive in a time when the frontier is no longer open and the majority of able-bodied men are neither called to serve in the military nor act as informal peacekeeping militias.
This concern about the “history and tradition” standard is not to say that historical considerations are unimportant. After all, a quick perusal of this Blog will find posts littered with references to Justinian, Aquinas, Gratian, Blackstone, and others in the European and Anglo-American legal traditions. Pat Smith provides a strong defense of the importance of unwritten custom and its relationship to law here. But there is historical fact, and then there is legal analysis, which may consider historical facts (both locally and within the ius gentium) in defining, for example, the natural law or the longstanding customs of a society upon which the positive law is overlaid.
An example of the flaw in this thinking is the Dobbs majority’s own half-hearted commitment to “history and tradition.” As Justice Alito points out, 28 of the 37 states in 1868 had statutes criminalizing abortion before quickening, and all but one of the remaining states passed similar statutes in the following years. The justices use this to say that abortion is not within the historical conception of “ordered liberty” in the United States. Yet, if the majority were really committed to “history and tradition,” they could go further and apply the legal concepts animating and undergirding those positive laws to reach an even stronger conclusion, one that found an affirmative obligation to protect unborn life instead of just leaving it completely to legislative discretion. (Those who think such a position is too radically conservative should consider that West Germany’s constitutional court held exactly that in 1975, two years after Roe.)
In any case, those thoughts are left for another day. The point is that the “history and tradition” standard alone, as the Dobbs court seems to read Glucksberg, is a flawed standard that does not do the logical work of constitutional interpretation that the conservative majority wants it to do. That work requires legal reasoning and judgment, not merely historical fact-finding. A classical understanding of law provides a flexible and persuasive framework for defining rights, privileges, and obligations of citizens within the framework of the common good, including on the basis of custom. The determination of such rights need not be frozen in time, but they also provide their own internal limits against a “living constitutionalism” that strays wildly from the text. But a crabbed reliance on “history and tradition” to obtain the results of the classical legal tradition without adopting its methods is unpersuasive and self-defeating. Either these decisions must find their persuasive basis in natural law or the common good, or they will ultimately fail.
