Originalism according to Dobbs, Bruen and Kennedy

In three cases of the last convocation, the constitutional concepts of history and tradition played an important role in the reasoning of the Supreme Court. Dobbs v. Jackson Women’s Health Organization relied on history and tradition to prevail Roe v. Wade. New York State Rifle & Pistol Association v. Bruen articulated a test of history and tradition for the validity of laws governing the right to bear arms recognized by the Second Amendment. Kennedy v. Bremerton School District looked to history and tradition in formulating implementing doctrines for the Establishment and Free Exercise Clauses of the First Amendment.

Some who dislike these outcomes have characterized the cases as genuine. Others have suggested that the thinking in these cases represents a new “History and Tradition” alternative to the original public meaning originalism, or even an alternative to originalism itself.

In a new paper now available on SSRN, UVA professor Lawrence Solum and I took a deep dive into the methodology of these three cases. Each case raises important questions about the Court’s approach to constitutional interpretation and construction. It does Dobbs, the bridgeand Kennedy represent a new theory of constitutional interpretation and construction based on history and tradition? On the other hand, should reference to history and tradition in these opinions be understood through the prism of constitutional pluralism as modalities of constitutional argument? Finally, can the use of history and tradition in Dobbs, the bridgeand Kennedy reconcile with the Supreme Court’s acceptance of originalism?

In this paper, we do not express our agreement or disagreement with the outcomes in these cases. Instead, we take this opportunity to clarify the constitutional concepts of history and tradition and identify four distinct roles that history and tradition can play: (1) as evidence of original meaning and purpose; (2) as modalities of constitutional argumentation within the framework of constitutional pluralism; (3) as a new constitutional theory, which we call “historical traditionalism”; and (4) as implementing doctrines. With these concepts in mind, we next explore the roles of history and tradition in the Dobbs, the bridgeand Kennedy. Finally, we articulate a comprehensive strategy for incorporating history and tradition into constitutional jurisprudence.

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

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