Are appeals to tradition and history by courts appropriate? If so – when? And how do they fit with originalism?
The Supreme Court of the United States has cited its interpretation of tradition in several recent decisions, including controversial cases like Dobbs v. Jackson Women’s Health, which found no constitutional right to abortion, and New York State Rifle & Pistol Association, Inc. v. Bruen, which threw out a New York concealed carry law. In both opinions, the majority grounded its analysis on “history and tradition.”
But experts at Harvard Law School’s Rappaport Forum on Wednesday differed on whether tradition adds richness to the Court’s decisions — or stymies its ability to address modern problems.
“Discussion about the tradition about gun regulation for muskets really doesn’t tell us anything about a world of large magazine AR-15s,” argued panelist Kathleen Sullivan ‘81, the former dean of Stanford Law School and currently a partner at Quinn Emanuel Urquhart & Sullivan LLP.
The discussion, “Who Cares About Tradition? Constitutionalism After Dobbs and Bruen,” featured Sullivan along with Jamal Greene, Dwight Professor of Law at Columbia Law School, and William Baude, professor of law at the University of Chicago Law School.
Before the event began, moderator Daphna Renan, the Peter B. Munroe and Mary J. Munroe Professor of Law at Harvard, acknowledged the recent passing of Jerome “Jerry” Rappaport ’49 M.P.A. ’63, who founded the Harvard Law School Forum as a student in 1946, and who, with his wife Phyllis, made the present-day Rappaport Forum possible. “I just want to acknowledge and thank Jerry and Phyllis Rappaport for their commitment to meaningful, robust, and civic discourse and for their extraordinary generosity.”
Renan then asked the panelists to think about how the Court is using history and tradition in cases like Dobbs and Bruen. “To what extent or in what ways does this mark a departure from prior judicial practice?”
“I think the basic problem that these cases represent is a version of the central problem of American constitutional law, which is that we have a very old and not very specific written Constitution. And so the fact that it’s not very specific means that there’s a lot of interpretive discretion,” said Greene.
“I think the basic problem that these cases represent is a version of the central problem of American constitutional law, which is that we have a very old and not very specific written Constitution.”Jamal Green, Dwight Professor of Law, Columbia Law School
Greene added that, “in a lot of ways, we as a people have evolved away from its initial assumptions and understandings. … And our particular history of political exclusion also means that those kind of initial assumptions and understandings don’t represent anything resembling an actual pluralistic, democratic polity.”
Greene said the Court’s emphasis on tradition in Dobbs and Bruen was nonetheless a departure. “The relevant history and tradition typically includes reliance on longstanding precedent, and neither Dobbs nor Bruen is interested in longstanding legal and political precedent.”
Is tradition different than originalism?
We’re used to arguments about originalism, and we’re used to competing theories of what the framers would have wanted, agreed Sullivan, who is also a former Harvard Law professor. “What’s new in this kind of traditionalism, as opposed to originalism, is … a look to decentralized social practices, vague and pervasive social norms, [and] differential regulatory practices among the states that can be aggregated to describe a particular regulatory trend or toleration trend. And that looks to a much more diverse set of sources, far beyond the founding documents and the authors and debaters of the founding documents.”
In some sense, though, it’s not entirely new, Sullivan said. “What is new is the granularity and the primacy of the traditionalist argument. Bruen actually jettisoned the notion that we would apply the traditional tiers of scrutiny, which are just an organizing device for how much justification must the government have to violate our rights, in favor of a historical framing approach.”
Considering tradition may not actually be at odds with the use of precedent, Baude countered. “Normal precedent looks to judicial decisions as the things in the past we care about. This kind of tradition you could see as widening the lens – we care about [a few other] things that happened in the past, not just what a court said, but what legislatures said, and that is another data point we will take into account when figuring out the law.”
“This kind of tradition you could see as widening the lens — we care about [a few other] things that happened in the past, not just what a court said, but what legislatures said…”William Baude, Professor of Law, University of Chicago Law School
To Baude, the Court’s analyses are not a clear departure from past decision-making. “I wonder if there’s a little bit more of a connection between Bruen and some of the past practice, in the sense that Bruen is reminiscent of one-half of the double helix of a lot of the free speech precedents,” he said. “The free speech precedents seesaw between: ‘to what extent is the question some kind of balancing about the purpose of the First Amendment and the purpose of free speech’ and ‘to what extent is the question some kind of traditional historical exceptions to regulation?’”
“I totally agree that there is a debate within First Amendment law, and law around a number of other rights, about to what degree do we bake in the exceptions to the definition of the right,” Greene replied.
“I think one thing that’s different here … is fixing those exceptions at a point in 1868 or 1791, depending on whether it’s state or federal, [and] we don’t really do that with the First Amendment.” Instead, he added, exceptions have arisen over time, “and people were comfortable with it evolving over time.”
Renan then asked how looking at tradition fits within the idea of originalism.
“I think originalism and traditionalism as we’ve been describing it are both alike in that they’re both reactionary,” said Sullivan. “They both are the dead hand of the past reaching forward to strangle more modern movements, and of course that carries with it bias, because the groups who generated both the original and the traditional history were dominated by an anti-democratic, concentrated group of essentially wealthy white men.”
“I think originalism and traditionalism as we’ve been describing it are both alike in that they’re both reactionary … They both are the dead hand of the past reaching forward to strangle more modern movements…”Kathleen Sullivan, Partner, Quinn Emanuel Urquhart & Sullivan LLP
History and democracy
Turning to a question about whether incorporating tradition advances democracy, Greene said that he believed vague social practices might constitute a democratic consensus, but that in reality, it is very hard to know what that consensus was. And a survey of the past can be difficult because many kinds of people were left out of those debates. “Justice Thomas, in his majority opinion [in Bruen] says we have made a decision in the past to bind ourselves to the Second Amendment,” Greene said. “But no — there is no such ‘we.’ ‘We’ did not do that. Some people did that, but they didn’t represent anyone relevant to today’s discussion.”
But if tradition moderates what could otherwise be absolutist interpretations of the constitutional text, “then it may well be more pro-democracy,” argued Baude. “If tradition tempers an approach to precedent that’s more focused on judges, to give more democratic branches the power to set precedent — if we do that carefully, that’s more consistent with democracy.”
Finally, Sullivan asserted that stare decisis, or reliance on past legal precedents, itself is a tradition – one worthy of respect and consideration by the Court. “If we found a message in a bottle from the past that said ‘no, actually, you’ve gotten the meaning of the Constitution all wrong for 50 years,’ and here is proof positive that you got it all wrong, and then you overturn [precedent] – maybe,” she said. “But if you’re just embracing one contested vision of past informal social and cultural norms, and a patchwork of legislative efforts and judicial efforts in a patchwork of states – if that’s your ground for overturning a decision of the Court… it’s not like it’s going to restore legitimacy for you to do that.”