Originalism after Dobbs, Bruen, and Kennedy: The Role of History and Tradition by Lawrence B. Solum, Randy E. Barnett :: SSRN

Randy Barnett was the originator of the concept that nearly killed the affordable care act: that liberty prohibited compelling someone to buy insurance.  Such an argument from history led to a profoundly harmful result.  But John Roberts saved the day by finding the so-called individual mandate to be permissible under the taxing power.

Then in The Original Meaning of the 14th Amendment Barnett with Evan Bernick celebrated a letter by Justice Joseph Bradley to a District Judge embracing an understanding of the 14th Amendment that did NOT have the state action requirement.  So a state's failure to protect rights was as actionable as an affirmative measure.  The implications are profound and surprising from such a prominent conservative/libertarian voice.  - GWC

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

118 Northwestern University Law Review 433 (2023)

62 Pages Posted: 27 Jan 2023 Last revised: 11 Oct 2023

Lawrence B. Solum

University of Virginia School of Law

Randy E. Barnett

Georgetown University Law Center

Date Written: October 7, 2023

Abstract

In three recent cases, the constitutional concepts of history and tradition have 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 test for the consistency of state action with the Establishment Clause.

These cases raise 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?

Part One of this article elucidates the constitutional concepts of history and tradition. Part Two lays out 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. Part Three investigates the roles of history and tradition in Dobbs, Bruen, and Kennedy. Part Four articulates a comprehensive strategy for the incorporation of history and tradition in constitutional jurisprudence.