Friday, August 30, 2024

The Levels-of-Generality Game: "History and Tradition" in the Roberts Court by Reva Siegel :: SSRN

The Levels-of-Generality Game: "History and Tradition" in the Roberts Court by Reva Siegel :: SSRN

37 Pages Posted: 26 Apr 2024

Reva Siegel

Yale University - Law School

Date Written: August 29, 2024

Abstract

Scholars have not agreed upon a method of interpretation that explains the Court’s reasoning in Dobbs v. Jackson Women’s Health Organization or New York State Rifle & Pistol Association v. Bruen. As this Article shows, what explains the history-and-tradition decisions of the Roberts Court is not a method of interpretation, but instead a justification for the Court’s turn to the past. The conservative Justices claim that interpreting the Constitution through history and tradition—when described in granular factual detail—best constrains judicial discretion by tethering law to objective criteria separate from the interpreter’s policy preferences. Justice Scalia long ago advanced this claim, and began a decades-long debate over “levels of generality” when he urged judges “to adopt the most specific tradition as the point of reference.”

The Article contrasts this belief—that tying constitutional interpretation to history can constrain the expression of judicial values—with an alternative account. An interpreter’s appeal to facts about the nation’s past in constitutional argument often expresses values—forms of argument I have called “constitutional memory” claims. What appear in constitutional argument as positive, descriptive claims about the past are often normative claims about the Constitution’s meaning. In this Article, I show how my account of constitutional memory identifies the expressive role of conservative historicism, counters the judicial-constraint justification, and offers new perspectives on the levels-of-generality claims associated with it.

The Article opens by examining puzzles of method and justification presented by Dobbs and Bruen during the 2021 Term. It concludes with a late-added section that samples the Justices debating the Article’s judicial-constraint and levels-of-generality themes in cases of the 2023 Term—in particular, in the Second Amendment case of United States v. Rahimi. The Article’s account of DobbsBruen, and Rahimi demonstrates that we are all living constitutionalists now—but, crucially, not all living constitutionalism is the same. A conclusion identifies reasons why the Justices who present appeal to the past as claims of judicial constraint may engage in anti-democratic forms of living constitutionalism.

Keywords: history and tradition, originalism, levels of generality, constitutional memory, Dobbs, Bruen, Rahimi, selectivity, constitutional pluralism, living constitutionalism, principle, Vidal v. Elster, Department of State v. Muñoz, anti-democratic

Siegel, Reva B., The Levels-of-Generality Game: "History and Tradition" in the Roberts Court (August 29, 2024). Harvard Journal of Law and Public Policy, Vol. 47, 2024, Yale Law School, Public Law Research Paper, Available at SSRN: https://ssrn.com/abstract=4808688

No comments:

Post a Comment