In three circumstances final time period, the constitutional ideas of historical past and custom performed vital roles within the reasoning of the Supreme Court docket. Dobbs v. Jackson Ladies’s Well being Group relied on historical past and custom to overrule Roe v. Wade. New York State Rifle & Pistol Affiliation v. Bruen articulated a historical past and custom take a look at for the validity of legal guidelines regulating the proper to bear arms acknowledged by the Second Modification. Kennedy v. Bremerton Faculty District appeared to historical past and custom in formulating the implementing doctrines for the First Modification Institution and Free Train Clauses.
Some who dislike these outcomes have characterised the circumstances as originalist. Others have prompt that the reasoning in these circumstances represent a brand new “Historical past and Custom” various to authentic public that means originalism, and even an alternative choice to originalism itself.
In a brand new paper now accessible on SSRN, UVA Professor Lawrence Solum and I take a deep dive into the methodology of those three circumstances. Every case raises vital questions concerning the Court docket’s method to constitutional interpretation and building. Do Dobbs, Bruen, and Kennedy symbolize a brand new principle of constitutional interpretation and building primarily based on historical past and custom? Within the various, ought to the references to historical past and custom in these opinions be understood by means of the lens of constitutional pluralism as modalities of constitutional argument? Lastly, can the usage of historical past and custom in Dobbs, Bruen, and Kennedy be reconciled with the Supreme Court docket’s embrace of originalism?
On this paper, we don’t categorical our settlement or disagreement with the outcomes in these circumstances. As an alternative, we take this chance to elucidate the constitutional ideas of historical past and custom and determine 4 distinct roles that historical past and custom can play: (1) as proof of authentic that means and objective; (2) as modalities of constitutional argument inside a constitutional pluralism framework; (3) as a novel constitutional principle, which we name “historic traditionalism”; and (4) as implementing doctrines. With these ideas in thoughts, we then examine the roles of historical past and custom in Dobbs, Bruen, and Kennedy. Lastly, we articulate a complete technique for the incorporation of historical past and custom in constitutional jurisprudence.
The paper is Originalism after Dobbs, Bruen, and Kennedy: The Function of Historical past and Custom.
