Recent decisions like United States v. Rahimi and Vidal v. Ester have brought fresh discussion on how to conduct originalist analysis properly. In these cases, justices argued about to what degree history and tradition set the boundaries of a constitutional right.
I propose that history and tradition cannot determine such parameters. Rather, they can only provide evidence as to what those parameters are.
This debate is not an academic one. If the court wanders from a proper originalist framework, it could jeopardize everything originalists have sought: a faithful adherence to the original meaning of the text. And it risks undermining the perceived legitimacy of the entire project and the court itself.
For years, many lower courts have done their best to get around the Supreme Court’s more originalist jurisprudence — the court’s controversial response: the history and tradition test. The court now often relies upon this test when the government restricts conduct that falls within the text of certain core constitutional rights, such as the Second Amendment, or when the court evaluates the existence of a right that is not found in the text of the Constitution.
The test’s application differs depending on the context, and there may be some disagreement in describing it, but at its core, it mandates consistency with history and tradition through the identification of a historical analog. Without an analog practice or statute, you cannot pass this test. For example, that means in the Second Amendment context, if a state passes a gun-control measure that impedes the right to bear arms, then there must have been some analogous restriction in history for courts to uphold that gun-control measure.
There are also disagreements about its scope, but this is a good approximation. Since 2022, the court has used this history and tradition test to decide several landmark cases.
The practical reasoning behind the test is understandable. Somehow, judges must be reined in to follow the original public meaning of the Constitution, and a test might be the only way to do it. However, you cannot betray public meaning originalism to save public meaning originalism. Modern originalism interprets the Constitution based on the public meaning of the text at the time of adoption.
The law of the Constitution cannot be found in history, tradition or even the words or actions of the framers; the words they wrote are what matter. Just because there is a history or tradition of something doesn’t make it constitutional. Conversely, just because there is not a history or tradition of a certain practice does not make a law or government action unconstitutional.
The test treats policy choices made by legislatures as the Constitution itself. It assumes that, somehow, legislators always pass laws that line up with the boundaries of what is constitutionally permissible. That is obviously a faulty assumption. Legislators pass laws for a variety of factors and are not necessarily trying to maximize a given power. And even when they are, they often blow right past those constitutional guard posts. You cannot look to a history of statutes to determine constitutional boundaries.
History and tradition can shed light on the meaning of constitutional provisions, but that is far different from allowing history and tradition to dictate meaning.
History and tradition are merely evidentiary tools that may help us find the answers, but they are not the answers. Further, the relevance of history and tradition to the original meaning decreases the longer you get from ratification as faulty precedents and unconstitutional statutes build upon each other. Once courts and legislatures deviate from following the original public meaning, the history and tradition of those practices and laws are entirely irrelevant. They don’t tell us much of anything.
Moreover, legislatures and governments do unconstitutional things all the time. Indeed, there are examples of Congress doing just that not long after ratification. The Sedition Act, passed in 1798, among other things prohibited “publishing any false, scandalous and malicious writing or writings against the government of the United States.” Just because they get away with it doesn’t mean their actions should now become constitutional law or represent the original public meaning. One should never assume the constitutionality of a given statute or practice.
In the words of Judge Kevin Newsome of the 11th Circuit Court of Appeals: “traditionalism gives off an originalist ‘vibe’ without having any legitimate claim to the originalist mantle.”
Originalists should resist the temptation presented by the history and tradition test. It may be an effective means to reining in judges, but modern originalism stands for the proposition that means do not justify ends.
