Creators
May 13, 2024
The U.S. Supreme Court, whose members are certainly
learned in the law, has taken to making decisions beyond their area of training
and expertise — legal precedent — instead decisions infused with "history
and tradition."
None of the six conservative justices are historians
— yet some of the court's most momentous recent decisions are grounded in
history and tradition.
Thomas Wolf and Alexander Keyssar, writing for the
Brennan Center last fall, suggested that "history is more than looking at
select old things." They argue that historians "write about the past,
using methods and tools they've developed over time to make statements that are
reliable."
The justices do not have the required expertise to
make rational and honest assessments of history. Wolf and Keyssar opined,
"To do their job well, historians must acknowledge the complexity of the
past and the importance of context for making sense of things, among many other
considerations."
According to Emily Bazelon of The New York Times
Magazine, "history and tradition" is a spinoff of
"originalism." Former Justice Antonin Scalia was a proponent of
originalism.
Scalia argued that the high court decisions should
be grounded in the moment the Constitution was written, to prevent judges from
substituting their values for the wisdom of the nation's founders.
Bazelon contends that "originalism in practice
never lived up to this promise, because judges used it inconsistently or to
reach the results they preferred."
Dahlia Lithwick, writing recently for Slate, had a
less flattering view of originalism. She wrote, "originalism ... hold(s)
that judges and justices should ignore every interpretive methodology judges
once used to understand a legal text in favor of free-floating feelings about
history."
"History and tradition" is originalism on
steroids and the conservative supermajority on the court are flexing their
muscles. In 2022, the court made two major decisions utilizing history and
tradition.
First, the court found that a New York gun law was
not consistent with "historical tradition" against regulating guns.
Then the blockbuster decision in Dobbs v. Jackson Women's Health Organization
regarding the constitutional right to abortion — "whether the right to
obtain an abortion is rooted in the Nation's history and tradition and whether
it is an essential component of 'ordered liberty.' The Court finds that the
right to abortion is not deeply rooted in the Nation's history and
tradition."
A chief concern with history and tradition influencing
the outcome of court decisions is, as Ruth Marcus wrote in The Washington Post,
"the demonstrated willingness of the originalist justices to pick and
choose the historical practices and traditions that best support the result
they want, narrowing or expanding the relevant period as is most helpful to
their cause; second, their tendency to abandon originalist arguments entirely
when they turn out to be inconvenient."
Marcus provided vivid examples using the New York
gun law decision and the Dobbs decision to demonstrate the idea of
cherry-picking to justify a result. "In Dobbs, the majority reached back
to the 13th century to find that the Constitution contained no protection for
the right to abortion — even though, in the gun case decided just the day
before, it declared that 'historical evidence that long predates [ratification]
may not illuminate the scope of the right' at issue."
The concept of history and tradition seems to be
antithetical to the very thing it purports to provide — consistency. We know
that history is always subject to interpretation. Go to your local library and
check out the volume of books, new and old, on the historical influence of
Abraham Lincoln.
It may be apt to conclude with an admonishment from
a contemporary of Lincoln's. President Ulysses S. Grant wrote in his personal
memoirs, "It is preposterous to suppose that the people of one generation
can lay down the best and only rules of government for all who are to come
after them, and under unforeseen contingencies."
Matthew T. Mangino is of counsel with Luxenberg,
Garbett, Kelly & George P.C. His book "The Executioner's Toll,
2010" was released by McFarland Publishing. You can reach him at
www.mattmangino.com and follow him on Twitter @MatthewTMangino.
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