Originalism after Dobbs, Bruen, and Kennedy

The Proper Role of History and Tradition

In three cases last term, the constitutional concepts of history and tradition 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 Association 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 implementing doctrines for the First Amendment Establishment and Free Exercise Clauses.

Some who dislike these outcomes have characterized the cases as originalist. Others have suggested that the reasoning in these cases constitute a new "History and Tradition" alternative to original public meaning originalism, or even an alternative to originalism itself.

In a new paper now available on SSRN, UVA Professor Lawrence Solum and I take a deep dive into the methodology of these three cases. Each case raises 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?

In this paper, we do not express our agreement or disagreement with the outcomes in these cases. Instead, we take this opportunity to elucidate the constitutional concepts of history and tradition and identify 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 pluralism framework; (3) as a novel constitutional theory, which we call "historical traditionalism"; and (4) as implementing doctrines. With these concepts in mind, we then investigate the roles of history and tradition in Dobbs, Bruen, and Kennedy. Lastly, we articulate a comprehensive strategy for the incorporation of history and tradition in constitutional jurisprudence.

The paper is Originalism after Dobbs, Bruen, and Kennedy: The Role of History and Tradition.