Wednesday, May 15, 2024

Creators: 'History and Tradition': An Unpredictable Constitutional Interpretation

Matthew T. Mangino
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 and follow him on Twitter @MatthewTMangino.

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