Allison Brownell Tirres

With its decision in Dobbs v. Jackson Women’s Health Organization (2022), the Supreme Court overruled five decades of precedent guaranteeing a constitutional right to abortion, on the basis that such right was not supported by “history and tradition.” The Court has utilized this same rationale in other recent high-profile, and highly controversial, rulings. Conservatives on the Court claim that the lens of “history and tradition” is neutral, objective, and apolitical, unlike other modes of constitutional interpretation.

Many constitutional law scholars and legal historians are skeptical, to put it mildly, of the “history and tradition” approach. They argue that this method is just as susceptible to subjectivity and political manipulation. After all, whose history will one take into account, and what traditions? When does the historical query begin, and when does it end? The Court’s conservative turn has spurred a proliferation of scholarly work that challenges or seeks to reframe the judiciary’s use of history in constitutional interpretation. In a thought-provoking addition to this canon, Dov Fox and Mary Ziegler ask us to consider the history of the “history and tradition” test itself, to fascinating result. In The Lost History of “History and Tradition,” they demonstrate how the Court’s recent formulation of the test is just that: an intentional reframing of an interpretive tool that, in various forms, has been used by courts at least since the late nineteenth century.

The article’s primary historical contribution is to show that the Roberts Court iteration of “history and tradition,” which conservative justices praise as neutral, apolitical, and objective, is itself the product of social movement engineering aimed at finding common ground – and thus achieving political results – among conservative legal groups in the 1980s. This current formulation, which the authors call “entrenched traditionalism,” is actually a departure from a much longer-standing test that preceded it. That version, which the authors refer to as “evolving traditionalism,” is typified by Justice John Marshall Harlan’s dissent in Poe v. Ullman (1961), in which Harlan insisted that “tradition” is understood to be “a living thing.” Such a notion runs counter to the Court’s current framing of “history and tradition,” yet is truer to what those concepts have meant for most of the twentieth century.

Fox and Ziegler date the origins of the evolving tradition test to the 1920s and 1930s, when courts began to grapple in earnest with the question of whether the Bill of Rights applied to state and local governments. The characterization and use of history and tradition in these incorporation cases varied, but a common theme emerged: tradition could change over time, and judges did not have to limit themselves to viewing traditions as frozen at the time of ratification. In other words, they should look not just backward to the time of ratification (of either the Constitution or subsequent amendments), but also forward for evidence of shifting social practices post-ratification.

This understanding of the evolving nature of tradition became even more accepted in the 1960s and 1970s in cases pertaining to unenumerated rights, such as those dealing with contraception, abortion, and family privacy. The authors show how both proponents and opponents of reproductive rights framed their arguments using the evolving tradition lens. Fetal rights advocates, for example, argued (ultimately unpersuasively) that courts should take into account a growing recognition of the rights of the unborn, while abortion rights advocates made a similar argument for shifting social practices and widespread social acceptance around the termination of pregnancy.

In the early 1980s, however, a conservative legal movement began to coalesce around a much more rigid definition of the “history and tradition” test. Drawing on original archival research, the authors show how legal groups, including the Federalist Society, the Rutherford Institute, and the Alliance Defending Freedom, were united in certain aims but conflicted in others. While the Federalist Society turned to textualism and originalism as preferred interpretative tools, these methods did not necessarily achieve what conservative Christian lawyers sought, which was an approach that would prioritize Christian dogma and heritage in readings of the Constitution. It was also hard to see how an argument for fetal personhood – one of these groups’ primary aims – would be supported by either textualism or originalism.

Enter “history and tradition,” but of a particularly rigid variety. Members of these diverse conservative groups found that a “history and tradition” test that was restricted to the ratification era, and no further, could bridge divides within the movement. As the authors note, this turn was “a way to reiterate shared commitments to judicial restraint while codifying deeply held beliefs and values on subjects ranging from religious freedom to abortion.” (P. 46.)

In its most recent cases, the Court’s conservative majority has relied on this entrenched tradition test, one that sets a fixed ending point at ratification itself and looks no further. This helps to explain why the Court in Dobbs limits the query to “history and tradition” at the time of ratification of the Fourteenth Amendment, ignoring social practices and legal developments that followed in the century and a half after, including fifty years of accepted constitutional precedent.

Conservatives on the Court have also set out their own story of the test’s origins. In his majority opinion in Dobbs, Justice Samuel Alito portrays this version of “history and tradition” as a corrective to judicial overreach, and he dates its emergence to the 1997 assisted-suicide decision in Washington v. Glucksburg. Fox and Ziegler’s research provides an important rejoinder to this claim, demonstrating that the Court’s reformulation of the test was born instead out of years of social movement conflict. As they show, it was the product of an intentional effort by conservative lawyers and activists to achieve specific political ends by altering the lens of interpretation, rather than – as Alito and others claim – the product of a neutral, apolitical quest for objectivity. As they note, pinning the test’s origin to Glucksberg and its progeny may be a compelling way to tell the story, but it is not true.

In an intriguing final section, Fox and Ziegler posit that the evolving tradition model is not only more established in our constitutional history but also has the constructive potential to bridge the divide between the two opposite poles of constitutional interpretation today: originalism and living constitutionalism. They show how evolving traditionalism can avoid some of the risks of either being too rigid (originalism) or too loose (living constitutionalism) in approaching constitutional rights. They further consider how the evolving and entrenched approaches would yield different outcomes if applied to modern-day contested rights, including aid-in-dying, gun rights, fetal rights, and gender-affirming care. This thought experiment shows that evolving traditionalism has much to offer as an interpretive tool. The article thus provides important contributions both for the history of constitutional jurisprudence and for contemporary constitutional analysis.