Oct 27, 2025 Thomas J. McSweeney
In Dobbs v. Jackson Women’s Health Organization, the Supreme Court relied on medieval English legal texts to argue that “an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law.” In Context Matters, Sara Butler demonstrates that reading medieval texts shorn of their context can be dangerous. Butler shows us not only that the rationales behind abortion laws were different in the Middle Ages, as we might expect, but also that the term “abortion” itself referred to a broader and different set of practices than those encompassed by the word “abortion” in its contemporary usage. Butler argues that, when we put medieval abortion laws in their context, they appear to be something fundamentally different from modern abortion laws. Rather than an unbroken chain, we see two very different types of practices in modern and medieval abortion law.
Butler, whose scholarship has encompassed topics such as forensic medicine in medieval homicide investigations, the history of peine forte et dure, and, indeed, the treatment of abortion in medieval English law, is well positioned to add important context to the texts Justice Alito cites in Dobbs. She surveys writing on abortion over a period of several centuries and a number of different geographic contexts to illuminate the major themes of medieval thought about abortion. And, as Butler observes, the major problem the court faces in trying to trace the history of abortion back to the twelfth or thirteenth century is that in discussing abortion today and abortion in the Middle Ages “we are not comparing like entities.” (P. 22.)
The medieval concept of abortion was both narrower and broader than modern conceptions. On the one hand, medieval law treated miscarriage as a category of abortion, as a miscarriage was thought to be a sign of negligence on the part of the mother. On the other hand, as is well known, the medieval concept of abortion abortion only encompassed the death of a fetus post-quickening, as that was thought to be the point at which the fetus was imbued with a soul. Butler also shows, however, that a number of medieval texts demonstrated “an unwillingness to treat the fetus as a person” even after quickening. (P. 10.) Both Britton and the Mirror of Justices—two English legal texts of the thirteenth century that were not cited in Dobbs—state that it was not felonious homicide to kill a fetus before birth.
Medieval texts were thus mixed on whether the killing of a quickened fetus counted as homicide. But even among those that did treat abortion of a quickened fetus as homicide, it is not clear that we should read those texts as treating abortion as “criminal.” As Butler observes, “most of the laws which refer to abortion as homicide belong to canon law.” (P. 10.) As Butler pointed out in a previous article, only a handful of cases where a woman was prosecuted for aborting her fetus have been identified for the whole of the medieval period in England, and they are all cases from the ecclesiastical courts. The king’s courts regularly intervened when a pregnant woman was assaulted and her fetus died as a result, and it is clear that they treated the killing of the fetus as homicide in those types of cases. But when it came to a woman aborting her own fetus, “more often than not, it was deemed a spiritual matter, reserved for the internal forum, and deserving of penance, not punishment.” (P. 10.)
Butler’s observation raises an interesting question: if the Supreme Court is going to apply a “history and tradition” test, to what extent should we consider canon law part of that tradition? The courts of the Church had jurisdiction over subject matter that we would think of as secular today, such as probate, and also had a criminal jurisdiction over, for instance, sexual sins. Should canon law count as part of the nation’s “history and tradition”? Or is it evidence that medieval law was just too different from modern law for it to be of much use in constitutional interpretation?
But Butler argues that, even in cases in which abortion was criminalized, the rationale of that criminalization was very different from the rationale of abortion laws today, which aim at protecting the fetus. She presents a number of examples of rules that treated abortion primarily as a crime against the woman’s husband, either because it deprived him of an heir or because it was carried out to conceal the woman’s adultery. Butler argues that we should understand laws about abortion in the context of an array of laws that were “founded firmly in discomfort with a woman’s control over childbirth” and that sought to protect husbands against being cheated out of an heir. (P. 15.) Concerns about abortion mirrored concerns, found in texts such as the Castilian Siete Partidas and the English Bracton, that a recent widow might fake a pregnancy and substitute someone else’s child in order to produce an “heir,” defrauding her dead husband and his family.
I am not certain that this context would convince the Supreme Court. After all, the question the Court posed, and was ostensibly using these historical examples to answer, was whether the “right to abortion” is “deeply rooted in the Nation’s history and traditions.” I doubt one could make that argument from the medieval sources. But, as Butler demonstrates, the sources do not clearly establish that abortion, at least abortion in the sense the word was used in Dobbs, was criminal in the medieval common law. Indeed, it is not clear that it was a matter for the common law at all.
Leaving aside the larger debate over whether courts should employ historical tests of this kind, and assuming that they will continue to do so, Butler’s Context Matters illustrates the kind of careful scholarship that courts should be looking to. It reminds judges and clerks that the words they are reading in a medieval text do not always mean what they think they mean. When reading medieval texts, context matters.
Sep 24, 2025 Sara Mayeux
Joseph Blocher & Brandon L. Garrett,
Applying History as Law: The Role of Historical Facts in Implementing Constitutional Doctrine, 104
Tex. L. Rev. __ (forthcoming 2026), available at
SSRN (Jan. 16, 2025).
In New York State Rifle & Pistol Ass’n., Inc. v. Bruen, 597 U.S. 1 (2022), the Supreme Court instructed lower courts to apply a “history and tradition” test when evaluating the constitutionality of gun laws. For example, if considering an age limit on gun possession, the court must determine whether states imposed sufficiently analogous age limits in the past. Since Bruen, I have occasionally received inquiries from trial lawyers around Tennessee. Inevitably they have a looming deadline and need a legal historian to help out with a gun case, and inevitably I have to decline. I can understand why my name might pop up in a Google search: I live in Tennessee, I teach constitutional law (including cases like Bruen), and I’m a legal historian by training. But I don’t have any particular expertise in the history of gun laws, at least not as historians define expertise (i.e., years of immersion in the relevant primary and secondary sources).
When reading Joseph Blocher and Brandon L. Garrett’s forthcoming article, “Applying History as Law,” I realized my experience illustrates a larger phenomenon: “In the wake of Bruen, it quickly became apparent that the number of historians who seriously study gun laws is actually quite small; it would be impossible for them to serve as experts in every case, even if the litigants consistently had adequate resources to retain them.” (P. 46.)
As Blocher and Garrett chronicle, the Supreme Court in various doctrinal contexts has increasingly emphasized historical facts in constitutional litigation (a category that potentially includes a large swath of otherwise workaday criminal cases). Of course, there is plenty of theoretical debate about the role history should play in constitutional interpretation. But this article focuses primarily on the nuts-and-bolts questions of practical implementation that “history and tradition”-type tests raise for lower courts and litigants. And ultimately, the authors raise provocative questions about whether it’s possible, much less desirable, for historical fact-finding to become a routine part of day-to-day litigation.
To be sure, jurists have long drawn upon historical background to interpret the meaning of constitutional provisions. In recent years, though, the Supreme Court has increasingly adopted doctrinal tests that require lower courts to answer specific and somewhat bespoke historical questions when applying the tests (e.g., what is the history of age limits on gun possession). Although the Second Amendment post-Bruen is a major focus, the authors canvass other doctrinal contexts too, such as abortion and religion. In these areas, the justices not only cite historical facts themselves, but also “announc[e] tests that require lower courts to engage in their own historical fact-finding in order to resolve concrete disputes.” (P. 6.)
Such tests can raise difficult questions for lower courts. For example—and notwithstanding that Supreme Court justices often seem to feel at liberty to find facts themselves through in-chambers research and/or amicus briefs—American trial judges in adversarial proceedings are not usually supposed to engage in independent fact-finding. The Federal Rules of Evidence, for example, prohibit taking judicial notice of facts unless they are beyond “reasonable dispute.”
Therefore, if a case turns on debatable historical facts, presumably the parties must place those facts into the judicial record. But how mechanically should this occur? When are written filings sufficient? Should the parties hire historians to testify as experts? If they don’t, should the trial judge appoint an independent expert? Can lower courts recycle historical facts previously found by other courts as a kind of “precedent”? As Blocher and Garrett summarize, lower courts and litigants have recently debated and divided over such details, particularly in Second Amendment cases.
Existing court rules and procedures are not well tailored to this type of exercise. For example, in criminal cases, “the typical pre-trial discovery and hearing rules were crafted with forensic reports and suppression hearings in mind, not disputes about legal history.” (P. 30.) Nor do lawyers necessarily have the training, library resources, and time to conduct in-depth historical research. Indeed, the authors note that “Second Amendment challenges typically involve a criminal statute and thus place the initial demands of historical research on criminal defense lawyers and government attorneys—two groups for whom time and resources are at a premium.” (P. 32.)
Blocher and Garrett argue, nevertheless, that historical disputes should be treated the same as “disputes regarding any other area of technical or scientific evidence—relying on the parties but also, where needed, on experts.” (P. 11.) Ordinary procedural and evidentiary rules should apply, including the Federal Rules of Evidence. Appellate courts should defer to the lower courts as the finders of fact in the first instance and potentially remand cases if there was inadequate factual development below. (P. 11.)
Notably for historians, taking these recommendations seriously might mean a reduced reliance on amicus briefs at the appellate and Supreme Court level. In recent high-profile cases, such briefs have become the primary vehicle for historians to influence (or try to influence) constitutional decision-making. Instead, the emphasis might shift toward hiring historians as expert witnesses at the trial level. To be sure, there are some specialized contexts like voting rights where historians already frequently testify, but in other fields the practice might be new terrain.
On one level, Applying History as Law provides a helpful overview of how litigants and lower courts are responding to the historical turn in constitutional doctrine. On another level, the article is also deceptively provocative, weaving through its practical analysis a trenchant critique. As the authors suggest at various points, once one starts working through the practical questions it’s hard not to wonder whether the Supreme Court is asking “more of historical fact-finding than the legal process can legitimately deliver.” (P. 46.) If so, then the doctrine may (and perhaps should) eventually shift back towards standards that are more capable of application by lower courts.
In that sense, I found the article oddly reassuring. It seems that underneath the new political trappings of the Supreme Court’s recent twists and turns, there is also something else going on that is quite familiar in the annals of judicial history: justices from their lofty heights imposing rules upon the rest of the legal pyramid that do not really make sense for busy lawyers and trial judges who have to worry about deadlines, dockets, and trying not to get reversed on appeal.
Cite as: Sara Mayeux,
How Should History Be Put on Trial?, JOTWELL
(September 24, 2025) (reviewing Joseph Blocher & Brandon L. Garrett,
Applying History as Law: The Role of Historical Facts in Implementing Constitutional Doctrine, 104
Tex. L. Rev. __ (forthcoming 2026), available at SSRN (Jan. 16, 2025)),
https://legalhist.jotwell.com/how-should-history-be-put-on-trial/.
Aug 26, 2025 Allison Brownell Tirres
In 1958, then-U.S. senator John F. Kennedy published the first version of his influential book A Nation of Immigrants. Kennedy’s account, written to hasten the passage of long-overdue immigration reform, solidified the mythology of the United States as a land of arrival for those looking for democracy, economic security, and the so-called American dream. It reflected a national mythology that centers the U.S. as the most desired destination. In his book Quitting the Nation: Emigrant Rights in North America, historian Eric Schlereth turns this mythology on its head, viewing the U.S. not as a place of destination but as a place of departure. As such, he provides a much-needed corrective to the historical record and enhances our understanding of the legal history of citizenship and migration.
Schlereth’s account focuses on the pivotal era between the American Revolution and the Civil War, when citizenship rights were both highly contested and minimally regulated. The American Revolution itself, as Schlereth reminds us, was fought in part over rights to emigrate from Great Britain and ultimately to expatriate to the new American republic. Colonists seeking independence rejected the English legal tradition of “perpetual allegiance,” which assumed that subjects could not choose to give up their allegiance to the King. Rejecting perpetual allegiance was simple, but deciding what would replace it was not. Was it possible to have a free right of emigration and expatriation from the fledgling United States without threatening the future of the political union, or embroiling the country in unwanted foreign conflicts? How should the new nation regulate the loss of citizenship, and what should be the obligations of those seeking to give it up? These were among the questions that individuals, courts, legislators, and the press took up in the decades after the founding and which Schlereth explores in fascinating detail.
Those who chose to leave the United States and establish new communities in other lands did not have to go far: in the early republic, the United States bordered Spanish territory to the southwest and British territory to the northeast. The proximity of these colonial powers made it easy for Americans to declare allegiance elsewhere, which they did in the tens of thousands prior to the Civil War.
Law had an important part to play in these debates, but it was rarely the leading edge. As Schlereth shows, eighteenth-century legal theorists embraced a right of emigration but were fuzzy on the details. As he notes of international law at this time, “[t]he liberty to leave existed with certainty whereas the conditions that permitted lawful departure seemed open to debate.” (P. 16.) Congress tried and failed multiple times to adopt legislation relating to emigration and expatriation during this period. States like Kentucky, Pennsylvania, and Virginia issued the strongest support in their state constitutions, treating the right to leave as a natural right, but they were not uniformly followed by other states. The absence of clear legal guidance meant that individuals led the way in shaping what emigration rights would mean, rather than being themselves led by law. Ultimately, it was the people who decided to use what they saw as their core right to change allegiance who shaped the law itself.
Schlereth’s account includes fascinating stories about many of these migrants. He draws on a rich trove of documents, including diaries, administrative logs, newspaper accounts, recruitment plans, and legal records, with a particular focus over time on the Spanish colonies of Upper and Lower Louisiana, the British colonies of Upper and Lower Canada, and the Mexican states of Coahuila and Texas.
In each of these places, Schlereth uncovers a historical record of willing and enthusiastic migration. Those embracing the right to leave came from many sectors of American society, although the freedom to emigrate was oftentimes influenced and/or greatly limited by race, gender, and class. White propertied men had much greater access to free movement in general and could legally make decisions on behalf of those in their household. When Virginian and Revolutionary War veteran Peter Bryan Bruin moved to Natchez in 1788 in search of better land and opportunity, he brought with him his wife, children, and 20 enslaved persons. Bruin took the oath of allegiance to Spain and eventually became an official in the Spanish colonial government, but the record is silent as to whether those accompanying him would themselves have freely chosen to change their allegiance. Schlereth’s account includes many examples of men like Bruin, but he also uncovers stories of other migrants without access to the privileges of white race and/or male gender who openly embraced emigrant rights. We meet, for example, Mary Ann Shadd, a free Black woman who departed from Delaware to Canada West in 1851, attracted by the promise of fertile lands and civil and political rights for the Black population, and became an influential writer, editor, and recruiter for others to follow in her footsteps.
Individuals like Bruin and Shadd embraced a right to emigrate and were largely able to do so free of constraint by either sending or receiving countries. But as Schlereth shows, their departures caused anxiety and confusion, especially when the countries were themselves in conflict. Identifying where someone belonged and whether, for example, they would be liable for violating domestic or international law was a fraught endeavor when nation-states could not agree on the individual’s citizenship. But efforts to constrain emigration and expatriation rights in the U.S. consistently met with failure, as lawmakers were faced with the fact that tens of thousands of persons had already embraced this right and were steadfast in defending it.
For scholars of legal history, Schlereth’s account provides a fascinating example of how the exercise of a perceived right can, itself, eventually lead to the embrace of that right in law. Ultimately, the federal government rejected the idea of “collective expatriation” as practiced by states in the secessionist South in forming the Confederacy but embraced a right of individual emigration in the Expatriation Act of 1868. After reading Quitting the Nation, we understand this Act as the culmination of decades of tens of thousands of individuals choosing to shift their allegiances and defending their ability to do so.
In an insightful epilogue, Schlereth draws comparisons to today’s gaps in the legal landscape. A right to emigrate implies a right not just to leave but also to choose a new country of allegiance, but contemporary border policing and legal barriers make that choice all but impossible for most migrants. Individuals fleeing climate disasters all over the world overwhelm systems of refugee law that are outdated and ineffective in managing human movement. Time will tell whether these emigrants will, themselves, force a new reckoning in the law by exercising what they see as their human right to find a safe place to live.
May 15, 2025 Anders Walker
Kathleen DuVal’s Native Nations is the latest in a raft of books that tackle the long history of Native America. It resonates with Pekka Hämäläinen’s Indigenous Continent: The Epic Contest for North America (2022) and Ned Blackhawk’s capacious The Rediscovery of America: Native Peoples and the Unmaking of American History (2023). For legal historians, DuVal’s book makes for interesting reading because it combines both the long history of Native America – including the rise and fall of Indian cities like Cahokia – and the more recent past, all the way up to the “indigenous renaissance” of today. (P. 552.)
Like Hämäläinen’s Indigenous Continent, DuVal begins her story before European contact, explaining how Native Americans thrived on the North American continent for centuries. Cahokia, a massive complex on the Mississippi River, boasted a population larger than London in 1250. However, in the years leading up to European arrival, oddly modern problems—including “climate change”—led Native Americans to abandon their urban lives for smaller, more democratic social formations, or what DuVal calls a more “egalitarian order.”
Once Europeans did arrive, Native Americans engaged them in ways that defy stock narratives of colonization. They played Europeans off one another, exploited them for trade purposes, made alliances with them when helpful and—when necessary—killed them. It was not until the nineteenth century, in other words, that Europeans truly began to make inroads into the continent, a story that tracks Hämäläinen’s narrative. “By 1830,” DuVal notes, white Americans outnumbered Native Americans ten to one: “the United States had an astounding 12.8 million people (two million of them enslaved),” while the entire Native American population of the continent was down to less than one million (P. 442.)
During this phase, the Supreme Court handed down one of its most important opinions on Native Americans, Worcester v. Georgia, which declared American Indians to be members of “domestic dependent nations” (Pp. 451-52.) This concept was novel. Nations, as a general matter, enjoy sovereignty. However, by declaring them “dependent,” the Court created something new, an entity that lacked true sovereignty but—at the same time—lacked the various Tenth Amendment protections enjoyed by the states. This treatment could have been viewed as a defeat for Indian hopes of autonomy, but DuVal does not read it that way. For her, the Westphalian idea that Native Americans were “nations” became internalized in the minds of Native Americans, and survived removal orders, reservation systems, and the Civil War.
Which, incidentally, was another turning point in the status of Native American nations. Not just a struggle between North and South, the war emerges in DuVal’s book as a battle for federal primacy over all entities that might claim sovereign status. The Southern states’ loss became the Indian nations’ loss as well, for the war rapidly expanded the size and scope of the federal government—a government that directed the same force that it had used to quash the Confederacy against Native Americans. “The Civil War forced Native nations into new relationships with the United States,” notes Du Val. “For the rest of the nineteenth and twentieth centuries, U.S. policy would fluctuate between brutal violence against American Indians and attempts to incorporate them into the United States.” (P. 493.)
Hämäläinen ends his book here, at the close of the nineteenth century, a moment that DuVal calls “the nadir” of Native American hopes for retaining their culture, their land, and their “nations.” However, DuVal continues her story into the twentieth century, enabling her account to explore the winding, largely legal history of Native American survival and – as she puts it a “renaissance” of “possibilities” that exist in “the present.” (P. 500.)
DuVal’s twentieth-century discussion resonates with Blackhawk’s The Rediscovery of America, another sweeping history of Native America that begins with first contact and then follows the various ways that Native Americans have shaped American history. Both Blackhawk and DuVal lament the 1910s and ’20s, which were marked by forced assimilation, allotment, and the “sending of Native children to boarding schools.” (P. 514.) However, both agree that something changed in the 1930s. Under the leadership of John Collier, FDR’s Commissioner of Indian Affairs, the federal government abandoned allotment and assimilation and “moved back toward the ‘domestic dependent nations’ of Worcester v. Georgia,” by allowing Native Americans to constitute their own governments, reject allotment, and recover their traditional cultures. (P. 523.)
This moment, marked by the 1934 Indian Reorganization Act, is the subject of one of the most interesting passages in DuVal’s book, which suggests that FDR’s radical rethinking of American society had a profound effect on the plight of Native Americans. Indians had been lobbying for their rights since at least the days of Tecumseh, in 1811. So, what had changed?
Perhaps it had something to do with the Great Depression. William E. Leuchtenburg, David M. Kennedy, and others have all documented the crisis in confidence that beset the nation during the 1930s, a startling turn away from the “roaring” exuberance of the 1920s. Did this downturn help Indians? Perhaps. John Collier held up Native American customs and culture as superior to white, a startling admission for a federal official.
However, in subsequent decades, anti-Indian sentiment within the federal government continued to fluctuate. In the 1950s, for example, DuVal explains that the federal government embraced a theory of “termination” that sought to break-up Indian traditions and move Native Americans to cities – a move oddly reminiscent of the Court’s integration mandates in Shelley v. Kraemer and Brown v. Board of Education. However, Native Americans survived the transition, took inspiration from Black Power, and reconstituted their own “nations” in urban America, beginning with the American Indian Movement, or AIM, in 1968.
By 1974, the federal government fluctuated once again and passed the Indian Self-Determination Act, a law that recognized both “individual rights and tribal sovereignty.” (P. 539.) Both DuVal and Blackhawk attribute this legislation to Native American activism, and in particular the American Indian Movement, but one wonders whether other factors contributed as well. For example, Richard Nixon signed the bill into law as anger simmered over the Vietnam War, doubts roiled over his involvement in Watergate, and Americans once again questioned their nation’s identity. This leads to a final thought. Could it be that Native American “nations” fare best when the American “nation” fares worse? And could a similar dynamic explain historians’ interest in Native American nations today?
Mar 24, 2025 William Smiley
The last two decades have seen a boom in scholarship on law and empire—a boom that owes much to the work of Lauren Benton, through her books Law and Colonial Cultures (2001) and Search for Sovereignty (2009). Now Benton broadens her lens to look at the longue durée history of law and war across, and even beyond, European empires, in They Called It Peace. Her book is a wonderful survey of the interplay of legal ideas and violence in European empires from the early modern era to the present. Benton focuses our attention on “small wars,” or “violence at the threshold of war and peace” (P. 8), which was “chronic, and repeating” across the world (P. 4). Rather than exceptions to the rule, she argues, small wars were the rule. And while small in scale, they could be both brutal and decisive, even leading to massacres and extermination.
Benton draws on examples from multiple empires—French, British, Portuguese, and Spanish—and different modes of conquest, both seaborne and land-based. We go from the Indian Ocean to Uruguay to the Pacific Northwest to Polynesia to Mexico to the Coromandel coast to Reconquista Spain to Jamaica. And we travel from the early modern period to the 19th century while also entering into conversation with modern dilemmas of violence—questions of “force short of war” like the US War on Terror, or “special military operations” like Russia’s invasion of Ukraine.
In this Jot, I want to pull out three theoretical innovations in Benton’s book that provide useful tools for other legal historians, and legal scholars more broadly. First, she insists that “law, defined broadly, infused all forms of imperial violence” (P. 8). In contrast to some scholars who have seen imperial warfare as falling into a “zone of exception” outside the law, Benton argues that it “was never operating outside the law” (P. 186). But that certainly does not mean that law limited imperial brutality. Instead, Benton “exposes the myth that law worked to contain violence. It structured violence and presented historical actors with possible worlds of acceptable mixes of small and cataclysmic violence” (P. 198). This was true not only for imperial states and agents, but for subjects more broadly, who “usually strained to maintain relations with legitimate sponsors and sought legal cover for their actions” (P. 7). (Students of Benton’s earlier work will hear echoes of the idea of “legal posturing,” or “imperfectly reconstructed legal practices and arguments” (Lauren Benton, Search for Sovereignty (2010), P. 24).)
This set of arguments resonates with other recent work on law and empire, and it should guide historians’ questions going forward. While exposing European imperial hypocrisy is surely valuable, we might also look for how law structured and channeled decisions. This often means moving past an assumption that law’s purpose was to limit suffering or brutality, or to promote justice or human welfare. In imperial wars, and in empire more broadly, law could work to shape individual or state actions without necessarily improving outcomes.
Second, Benton pushes us to put European empires in a broader legal field, and not to privilege their ideas of law. Across the medieval and early modern world, she contends, polities with very different cultural backgrounds shared a rough legal vocabulary. “Nearly everyone recognized a few broad categories of legal action” (P. 12), including jurisdiction, protection, punishment, truces, and plunder. These shared categories created familiar rhythms, like the oscillation between violence and truce and back again that was shared between polities as diverse as the Aztec Empire and the Abbasid Caliphate.
Indeed, while previous work has paired European Christian empires with others who shared similar intellectual traditions (like Middle Eastern Muslim polities), Benton goes further. Her idea of “big law” extends even to the indigenous peoples of the New World. This is a helpful pushback on the common tendency to view international law—for better or worse—as a European innovation. In recent years scholars have shown that non-Europeans had their own ideas about international law, and that they creatively adopted and deployed European rules in the imperial age—but Benton goes further by suggesting a shared set of ideas at the root of everything.
Third and last, Benton bridges the gap between studies that focus on legal intellectuals and their writings, and those that instead emphasize actors such as lawyers, litigants, diplomats, or officials. Like the internet meme, she asks, “why not both?” They Called it Peace moves seamlessly between treatise writers such as Grotius and Vattel, and a wider cast of characters including Royal Navy captains, French agents in India, settlers in New South Wales, and South American Guaraní. Benton escapes from the binary dilemma of whether “texts influenced practices” or “texts followed practices” to argue that “European imperial agents and European legal writers were arriving, in different locales, at similar solutions to related problems” (P. 146). Here again we see a model for legal historians: theory without practice is only philosophy, while practice without theory is only improvisation. European imperial warfare is not the only field where legal historians profit by combining genres; indeed, a “law in action” approach demands nothing less.
Mar 6, 2025 Jedidiah Kroncke
Inherent in historical work is recovering aspects of the past lost to contemporary awareness. In her new book, Arbitrating Empire: United States Expansion and the Transformation of International Law, Allison Powers recovers one such aspect that has been more than passively forgotten—it was actively erased. Her target is a series of state-to-state arbitral claims commissions central to American international law during the country’s rise as a global power. Here Arbitrating Empire revises understandings of early international arbitration as an instrument of “civilized” non-violent dispute resolution by exposing its function as a legal technology of imperial power. Powers’s intervention is a powerful and persuasive addition to the rapidly expanding literature on the evolution of the legal forms used to project American power abroad while denying accountability for its violence. The initial history of American international arbitration, she shows, was governed by the imperative “to secure territory, wealth, and political power across the globe while disavowing charges of colonial aggression.” (P. 7.)
Arbitrating Empire centers on five different claims commissions from 1870-1930 tasked with resolving thousands of claims for damages incident to U.S. imperial expansion. In seven well-ordered, richly detailed chapters, Powers examines claims stemming from the Mexican-American War, the U.S. bombardment of Samoa, the Spanish-American War, land expropriations in the Panama Canal Zone, and the Mexican Revolution.
Powers shows how these commissions were seen as novel forms of dispute resolution requiring a neologism—as she notes, “they called it arbitration.” (P. 2.) The product of such commissions became a foundational legal corpus for how “international law” was understood in this era, and helped form now-ubiquitous concepts such as sovereign debt. Yet, this corpus is largely absent from contemporary and modern treatises. Moreover, state-to-state arbitration was abandoned after nearly sixty years of serving as a primary means by which the United States deflected and contained accountability for the effects of exerting its power abroad.
While traditional accounts explain this abandonment as a result of arbitral commissions’ inefficiency, Powers shows that their demise was largely driven by their very efficacy—but an efficacy in exposing the hypocrisies of American empire far too readily and publicly. After victims of American imperial violence forced this hypocrisy into public light through their claims, many within the U.S. State Department worked to remove these voices from public awareness to ensure that these cases would only live on as narrow legal precedents shorn of their troubling imperial content or implications.
One consistent thread through these diverse settings was how American claims were justified and foreign claims denied by delegitimizing others’ self-governance. The decisions of the 1868 US-Mexican Claims Commissions routinely concluded that the regular operation of Mexican law—such as condoning labor strikes for unpaid wages—was a result of incompetency. Similarly, local Samoan governance was rejected for being “non-democratic” and thus inherently suspect. Even the presence of private consumer boycotts or peaceful protests was reframed as existential threats to normal business operations. These judgments did so by invoking the “law of nations” or “standards of civilization”—then popular to frame American international engagement as neutral and benevolent. Even participation in arbitral commissions themselves was demanded by the U.S. as a demonstration of other polities’ “civilized” status.
Such invocations also grounded a global “right to commerce” as inherent in modern civilization. Powers notes how American claimants saw themselves as entitled to special privileges abroad, from an individual entrepreneur’s “rights as an American” to essentially ignore foreign obligations to a military official’s right to act as a “boss of the ranch” wherever his warships took him. This language of commerce by right was most explicit in the Panama Canal Zone, referred to as the “world easement.” Here Panamanians’ eviction from their lands as “squatters” was justified, per Secretary of State John Hay, “not only by the stipulations of the treaty, but also by the interests of civilization.” (P. 117.)
Arbitrating Empire is most evocative when it uncovers how the seductive illusions of legal formalism worked to advance imperial power. Arbitral judges often openly acknowledged the tenuous legal grounds on which they operated, including famed jurist Francis Lieber, who saw his role in the 1868 US-Mexican Commission as one of near pure legal invention. Less reticent were actors such as the U.S. lawyer deemed “Chief Justice” of the “Supreme Court of Samoa” who penned “international law” judgments offshore from within a British warship.
The discretionary power that arbitral judges wielded enabled legal reasoning that ultimately denied the vast majority of claims brought by non-Americans. Judges openly used cultural degradations to reject evidence presented against Americans—whose own representations were uncritically accepted on the grounds that they were “highly respectable and men of intelligence.” (Pp. 39-40.) These racialized denials played upon all-too-familiar tropes of foreign idleness and criminality, and went so far as to claim that foreign peoples were genetically incapable of participating in law itself. Panamanian citizens were deemed “racially ineligible for any form of property ownership legible under international law.” (P. 143.) Even when legally cognizable, the value of foreign murder victims lives’ was reduced to zero as their “wages had been so low that they could not realistically have contributed significant financial support to their families.” (P. 213.)
Through such racialized reasoning, arbitral doctrines were intertwined with the emergent rhetoric of the Insular Cases and the Bureau of Naturalization. Arbitral judges routinely used logics of national exclusion, going so far as to categorize Chinese citizens as “natives” of Samoa. They also cited domestic cases challenging the rights of naturalized Chinese and Japanese citizens to deny claims by other naturalized citizens resident in Cuba—a tactic that justified dismissing 98% of such claims. And when claims were made by foreign citizens based on actions within the United States, judges worked to deem such claimants as “stateless.”
Throughout, Arbitrating Empire shows how the legal reasoning of arbitral decisions worked to rationalize and exceptionalize imperial violence. In some cases, such violence was acknowledged but naturalized. One case drew on a precedent from French Polynesia where the court cast an “uprising as a natural disaster rather than an anticolonial movement.” (P. 74.) In the Philippines, widespread violence was cast by an American general as “an inevitable consequence of war…that the innocent generally suffer with the guilty.” (P. 92.)
However, whenever legal discipline threatened to impinge on imperial prerogatives it was circumvented either internally or externally, or violently. Arbitral judges were not automatons and occasionally resisted subordinating their reasoning to the bare demands of imperial power. The Samoan commission was shut down when King Oscar of Norway disputed dubious testimony given by imperial agents, and judgments in the Panama Canal Zone that acknowledged the impact of structural violence on land valuations were openly resisted by colonial authorities—who went as far as nullifying any claims based on equity. (P. 154.) One American delegate characteristically related how in Samoa “the shells of British and American guns relieved from some difficult questions of international law that might otherwise have arisen.” (P. 66.)
Herein, Arbitrating Empire demonstrates the limits of imperial legality, or at least its need for continual iteration and adaptation. By the 1930s, subjects in imperial locales—often aided by lawyers specializing in such work—had become so proficient in documenting the immense violence of American imperialism that it became American law, and not the law of putatively inferior nations and peoples, that was effectively held up as falling below noble notions of the “law of nations.” Practices such as convict labor, the use of civilian concentration camps, racialized vigilante violence, and restrictions on foreign investment rights had become part of American law domestically and deployed in American imperial projects abroad. Instead of depoliticizing imperialism through legalization, arbitral proceedings became powerful forums for publicizing imperial violence. Though initially seen as a “civilized” means of managing imperial power, over time arbitral commissions became overwhelmed by the scope of imperial violence.
As a result, the end of state-to-state arbitration in 1937 coincided with a general move in American international law away from universalist invocations of the “law of nations.” Powers emphasizes how the subsequent rise of investor-state arbitration was made possible as so much of economic globalization had already enshrined operational principles that served American interests and were actuated by the energies of the American legal profession—obscuring the systemic connections between trade and violence that state-to-state arbitrations had unintentionally made so visible.
The main “victors” after 1937 were, unfortunately, not the claimants whose injuries had often overwhelmed arbitral commissions. Rather, the victor was the form of the nation-state itself. Foreign diplomats used the publicization of American imperial violence to insulate their domestic prerogatives—even to later enact their own xenophobic legislation. This process sealed injustices into the past, under the guise of pragmatism, as one American official clearly stated: “I have not the time to enter upon any suggestion as to who has been wrong in the past.” (P. 78.)
Powers goes beyond simply explaining this lost and formative period of American international legal history by tying it to contemporary tensions still unresolved in the modern international legal system. She narratively centers a case that carried a radical challenge by indigenous peoples against the Mexican state but was transformed from an “international legal critique of colonial dispossession to a perfunctory citation presuming the existence of adequate legal remedies within states.” (P. 242.) Today, such claims have again become visible as indigenous and other marginalized people push against the nation-state as the sole arbiter of justice and raise the same issue of intra-state distributions of power that the modern international legal order has remained so reticent to address.
Arbitrating Empire makes the connections between American international law and the history of American empire in exactly the way that U.S. State Department officials hoped to erase. Powers works with archives across time and space to remedy both excisions made to treatises and misrepresentations of past precedents to directly challenge this induced amnesia. She also shows how this transition stemmed from an intra-imperial understanding that all imperial locales, and their histories, were concurrently part of a global imperial strategy in which experimental lessons could be broadly applied to avoid accountability for imperial power.
Ultimately, Powers complicates any easy notion of international law’s relationship to post-colonialism in a global economic order in which so many forms of exclusion and violence remain bound up in the legal formalisms of today’s commonly far-from-democratic nation-states. The primary challenge today for such legal historical scholarship on American empire is fully integrating the diversity of studies that have begun to map that empire’s interconnected global scope.
Jan 21, 2025 Samy Ayoub
Islamic legal theory places great importance on the distinction between general and specific language (al-ʿāmm wa al-khāṣṣ). This new article by Omar Farahat draws on the philosophy of law to distinguish between internal and external generality. Internal generality refers to how the law maintains its coherence and intellectual consistency, while external generality deals with how the law applies to different social situations. These are analytical tools used to understand Islamic legal principles and their application. They primarily refer to the way Islamic legal principles are articulated and the scope of their applicability.
Internal generality refers to the universality of Islamic legal principles within the Muslim community such as the obligation to perform daily prayers. These rules imply that a particular legal principle is meant to apply to all Muslims, regardless of their specific social, geographical, or cultural circumstances, provided they meet the conditions of the rule. External generality refers to the applicability or relevance of Islamic legal principles beyond the Muslim community, often in interactions with non-Muslims or in multi-religious contexts. It considers how Islamic principles are communicated or enforced in situations involving non-Muslims or international matters. For example, the principle of upholding contracts applies in dealings with both Muslims and non-Muslims.
Farahat discusses how generality of rules and their exceptions in Islamic legal theory promoted the inner morality of Islamic law. General rules aim to apply broadly, while exceptions provide necessary flexibility. Both generality and specificity play a critical role in ensuring that the law remains coherent and adaptable to different circumstances.
Farahat argues that a central aim of debates on generality and exception in Islamic legal theory was to maintain a coherent relationship between intent, language, and norms. The article highlights the theological underpinnings of these debates, particularly how jurists viewed the relationship between divine intent and the language of legal texts.
Farahat examines how general and specific expressions are discussed by two influential sixth/twelfth century jurist-theologians from different juristic and theological backgrounds: the Shāfiʿī-Ashʿarī Abū Ḥāmid al-Ghazālī (d. 1111 C.E./505 A.H.) and the Central Asian Ḥanafī-Māturīdī ʿAlāʾ al-Dīn al-Samarqandī (d. 1145 C.E./539 A.H.). Farahat maintains that these two influential jurists approached the generality-specificity question from different theological perspectives but reached similar practical conclusions about how legal norms should be formulated.
The jurisprudential approaches of al-Ghazālī and al-Samarqandī reflected their views on the relationship between revealed or legislative language and the Legislator (God). First, al-Ghazālī–—representing the Shāfiʿī-Ashʿarī tradition––viewed law as fundamentally rooted in language. He believed that the jurist’s role was to analyze the language of the law without directly interpreting divine intent.
For al-Ghazālī, generality and specificity were features of language rather than reflections of divine will. He argued that general language should usually be taken at face value unless there were clear indicators that a specific exception applied. Al-Ghazālī positioned the law squarely within the realm of language, detaching it from divine intent, thereby making the jurist’s role purely one of language analysis. This perspective led him to view the generality and specificity of norms as outcomes of particular linguistic investigations, with exceptions seen as mere reflections of the linguistic boundaries of a rule.
On the other hand, al-Samarqandī––from the Ḥanafī-Māturīdī school––took a more intent-focused approach. He assumed a clearer division of labor: norms are embedded in divine intent, while language points to that intent. Thus, the juristic formulation of norms becomes an effort to mirror divine intent in terms of generality and specificity. Al-Samarqandī considered divine intent, however elusive, as the source of revelation. He believed that while general language indicated plurality, it could be subject to specification, and the jurist must carefully discern divine intent in applying general rules.
Farahat concludes that debates among scholars in classical Islamic legal theory were pivotal in bridging theological and practical concerns. These discussions were integral to developing coherent models for deriving normative pronouncements from revealed language. Their models sought to interweave divine speech and human conduct as key to the process of legal creation.
Classical Muslim scholars focused on ensuring that legal norms were internally consistent and aligned with divine will. Farahat explains that, contrary to the premodern jurist-theologians, modern reformists rely on purely hermeneutical techniques as a tool for reform to introduce legal change and suggests that this perspective is not a generative exercise. This article contributes to a deeper understanding and appreciation of how Islamic legal scholars grappled with linguistic and theological questions to produce a vision of law.
Farahat’s contribution challenges the assumptions underlying contemporary approaches in both the legal academy and normative calls by reformists for revival and renewal. He demonstrates how classical Islamic legal theorists were concerned with bridging historical, theological, and practical matters while articulating a vision of law in society. Farahat shows how, in contrast, modern textual approaches suffer from poverty in their conceptual premises. He invites researchers to reject the ahistorical and essentialist notions of text and discipline.
In these discourses, Islamic legal theory is confined to modern legal notions of textual authority rather than the dynamic, God-centric approach of pre-modern Islamic legal thought. Farahat’s goal is to integrate Islamic legal theory into broader socio-political, economic, and moral theories that address modern realities rather than reifying historical disciplines or texts.
Nov 28, 2024 Thomas J. McSweeney
We are not used to thinking of medieval people as innovative or forward-looking. The Middle Ages have been constructed as the quintessential backward-looking era, and this affects the way we think about medieval law. One of the grand narratives of medieval law is that early medieval Europe was governed by a customary law that treated past practice as normative. To medieval people, the “good, old law” was good precisely because it was old, to the extent that, even when medieval people created new law, they justified it by claiming it was old. In The Time of Custom and the Medieval Myth of Ancient Customary Law, Ada Kuskowski challenges the assumption that medieval people looked to the past for legal authority and argues that medieval people most often associated custom with the present, not the past, and treated it as something that could change, often quite quickly.
Kuskowski’s piece does two things: first, it surveys writing about custom between Late Antiquity and the fourteenth century to show that there was a wide range of discourses about the way customary law related to time. The leges written in the kingdoms that succeeded the Western Roman empire were held up by jurists and scholars from the sixteenth to the nineteenth centuries as written statements of ancient Germanic custom. Kuskowski shows that in these texts “[t]he old and customary was neither good nor desirable…” (P. 162). The texts instead present themselves as projects to update, improve, and renovate the law.
Notable is Kuskowski’s discussion of the French coutumiers. The coutumiers present themselves as discussions of customary law, usually of a particular region, and Kuskowski argues persuasively that they were not bound to any idea that custom needed to be old to be good. Indeed, they usually presented their custom not as a thing of the past, but as a thing of the present. Custom is, at times, described as “old” in the coutumiers, but is also at times described as “new,” “current,” and even “modern” (P. 172, Pp. 174-175). The authors of the coutumiers saw their texts not as recording what had always been done, but as recording the current practice in a time of rapid change.
It is not, however, that medieval people never thought of age as conferring authority; the “good, old law” was not solely invented by historians. Medieval scholars of Roman and canon law, writing from the twelfth century onwards, became interested in custom as a category of binding norms. They were particularly interested in the question of what made a custom binding. A common theme in their writings was that a legitimate and binding custom was something that had existed for a long time, either a quantified period of ten, twenty, thirty, or forty years, or from “time immemorial.”
Indeed, Kuskowski shows that the idea of “time immemorial,” which became so important in English law, only appears in discourse about custom starting in the twelfth century. Far from being evidence of a medieval “customary mindset,” it was an innovation introduced by university-trained jurists. The coutumier authors started to justify their customs in terms of antiquity from the turn of the fourteenth century, and then it was clearly because people who had been trained in Roman and canon law were importing the discourse of the good, old law from the debates within those fields. In emphasizing the idea that custom is given normative force by its age, scholars have been reproducing the rhetoric of the civilians and canonists, who were actively trying to distinguish custom from the lex they studied.
Second, the article explains how the notion that custom derived its authority from its antiquity became such a pervasive theme in the historical literature on the Middle Ages. Kuskowski tells the story of how medieval custom was constructed as backward-looking, particularly in the scholarship of the nineteenth and early twentieth centuries, in opposition to modernity. Kuskowski takes us from the sixteenth century to the twentieth, explaining how various political, social, and philosophical agendas reinforced this idea. In the nineteenth century, for instance, the historical school of jurisprudence and its emphasis on discovering the spirit of a nation through its ancient laws made customary law into “a primitive but exalted origin of the national heritage” (P. 151).
But at the same time, other currents in European thought were treating custom as a “superseded relic of the past” (P. 151). Enlightenment thinkers presented custom as an archaic and inherently irrational holdover of an earlier era that needed to be swept away by rational legislation. All of this led to a view of custom that, by the beginning of the twentieth century, treated it as, on the one hand, primitive and tradition-bound, and, on the other hand, as a revered relic, symbolic of the nation. Custom could be celebrated, but ultimately had to be superseded.
One of the most significant contributions Kuskowski makes in the article is to show the mechanisms by which these ideas about custom, based on normative commitments most scholars no longer share, slipped into modern scholarship. She traces this to the work of Fritz Kern who, in the early twentieth century, sanitized these nineteenth-century ideas about custom by taking them out of the nationalist and colonialist discourses of the nineteenth century. He reframed discourses about medieval custom in terms that historians of later generations could accept and, in the process, created what Kuskowski calls a “neutralized primitive custom” (P. 152). These ideas were then taken up, in this new form, in seminal works of the twentieth century, such as Michael Clanchy’s Remembering the Past and the Good, Old Law.
The Time of Custom challenges the way we think about customary law as a category. Customary law need not be tradition-bound and backward-looking. But the article also makes a broader point about how we think about the Middle Ages. People still view the Middle Ages as a period when people were backward-looking and tradition-bound. Kuskowski demonstrates that even sophisticated scholars of the Middle Ages, who deplore these kinds of characterizations of the period, still, at times, unconsciously reproduce them in their work. Kuskowski’s work on custom is an important corrective. By showing that custom, a quintessential example of the traditional and backward-looking, could be associated with innovation and rapid change, Kuskowski is challenging some of the most fundamental stereotypes about the Middle Ages as a period. Medieval people thought about themselves as updating, renewing, and even striking out in new directions.
Nov 4, 2024 Christopher W. Schmidt
In The Taft Court: Making Law for a Divided Nation, 1921–1930, the latest addition to the Oliver Wendell Holmes Devise History of the Supreme Court of the United States, Robert Post offers a masterclass of legal analysis and historical scholarship. Admirers of Post’s scholarship will find in this book yet more evidence of his rare skill for illuminating the nuances of legal doctrine and identifying the social forces and ideas that explain and animate that doctrine. The Taft Court also gives Post an opportunity to demonstrate his equally admirable skill at synthesizing massive amounts of research material into an engaging and compelling historical narrative—no small an achievement for a volume that comes in at over 1500 pages.
How does he pull off the trick of making a lengthy, serious work of scholarship an inviting experience for the reader? It helps that Post writes so clearly, even when navigating complex areas of the law. He also leans into the biographies of the members of the Taft Court, crafting subtle, sensitive portraits of not only the famous justices, such as Holmes, William Howard Taft, and Louis Brandeis, but also the infamous (the irascible racist James McReynolds) and those who have been largely forgotten. No one is better than Post at the difficult task of connecting biography and jurisprudence.
Perhaps most importantly, Post makes creative and effective choices about organizing and presenting his material. He puts most of his discussion of scholarly debates and historiography in endnotes, allowing him to keep his prose accessible and to center the reader’s attention on the words and actions of the historical actors. The overall structure of the volume is nicely attuned to the reader’s convenience. After beginning with chapters introducing each of the Taft Court justices, Post organizes the remainder of the volume topically. Early chapters explore Taft’s contributions to modernizing the Supreme Court and the institutional character of the Court in this period. Post then breaks down the Taft Court’s cases into four broad categories: social and economic legislation; prohibition; federalism; and labor and race.
The completist will find in each of the forty-three chapters countless insights built upon exhaustive historical research. But the volume is also thoroughly rewarding for more time-pressed readers who chooses to focus their attention on particular personalities and topics.
The central theme of The Taft Court—and a central theme of Post’s scholarship across the years—is that to understand the formation and development of judicial doctrine one must pay carefully attention to cultural phenomena and political developments outside the courts. The Taft Court’s jurisprudence, Post explains, was “fashioned in continuous dialogue with the popular preconceptions of its era” (P. xxv). This fact helps explain the distinctive challenges the Court faced. It’s also why the Taft Court’s work has been misunderstood, Post argues.
For the 1920s was a period of “intense ambivalence.” It was a time of technological innovation, with radio and cars transforming American life. It was a time of artistic experimentation. It was also a time of Prohibition, harsh nativism, and resurgent religious fundamentalism. The Taft Court, Post explains, was “charged with the thankless task of constructing law for a society that was deeply confused about what it wanted” (P. xxvi).
Post illuminates these crosscurrents of culture and law by organizing the justices of the Taft Court into adherents of four “narratives” about the meaning of constitutional law. One narrative understood custom as the master principle of constitutional law. Under this approach, the task of the judge was to translate historically durable practices and commitments into constitutional principle and then apply these principles as constraints on novel government policy. As the exemplar of this approach, Post presents McReynolds, the most uncompromising of the Court’s conservatives.
Chief Justice Taft often allied with this group, but he arrived at his judicial conservatism through a vision of constitutional law as dedicated to economic prosperity. This approach elevated property rights and freedom to contract and cast a skeptical eye on regulatory policy that might constrain economic growth and investment.
Holmes, by contrast, eschewed any judicial role in discerning fundamental constitutional principles. Under this positivist approach, the primary role of the judge in constitutional cases was to defer to the laws passed by majoritarian institutions. Only in limited and extraordinary circumstances would the courts impose constitutional limitations on the will of the people.
Holmes famously stood alongside Justice Brandeis in many of the most significant constitutional disputes of the Taft Court era, but the two men brought sharply different visions of the purpose of constitutional law. In contrast to Holmes’ skepticism toward judicially protected constitutional principles, Brandeis believed the essential task of constitutional law was the promotion and protection of democracy. “Our objective,” Brandeis wrote, “is the making of men and women who shall be free, self-respecting members of a democracy” (P. 313). For Brandeis, Post writes, judicial deference derived from a “moral respect for democracy.” Post’s portrait of Holmes is sensitive and thoughtful. His portrait of Brandeis as a democratic visionary is inspiring.
As the Taft Court struggled to respond to the ambivalent historical moment in which it operated, proponents of these four narratives came together and pushed apart, leaving behind a constitutional legacy that modern scholars have too often mischaracterized or underestimated or simply forgotten. Post offers a convincing case that, taken as a whole, the Taft Court did an admirable job at this transitional moment—recognizing that old constitutional veracities were no longer tenable, but also attempting to control the pace and scope of the change that was happening. In his thoughtful and thought-provoking portrait of a Court stuck between two constitutional worlds, Post has produced a masterpiece of legal historical scholarship.
Sep 30, 2024 Allison Brownell Tirres
Dov Fox & Mary Ziegler,
The Lost History of “History and Tradition,
” 98
S. Cal. L. Rev. __ (forthcoming, 2025), available at
SSRN (May 5, 2024).
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.
