William & Mary Bill of Rights Journal
Abstract
Never before has the Supreme Court relied on the history and tradition standard to such a magnitude as in the 2021 term to determine the scope of a range of constitutional rights. [...] In reaffirming this standard, the Supreme Court provided no guidance to lower courts on how to apply and analyze the history and tradition standard. Along with balancing the lack of resources in deciding cases with the history and tradition framework, lower courts must face the reality that this standard presents ample opportunity for one-sided historical analysis. To combat the temptation of conducting unbalanced and cursory reviews of historical sources and to ensure consistent interpretation and application of the law, lower courts must administer a workable, practical, and predictable method to apply the history and tradition standard. Acting within the vague boundary lines set out by the Court in Bruen, Dobbs, and Kennedy, lower courts must evaluate the history and tradition surrounding a given right through finding historical evidence that the right, or foundations of the right, survived to become the law of the Founders or adopters. But lower courts must recognize the pitfalls of the history and tradition test. Lower courts should avoid over-relying on amicus briefs, listening to “law office history,” or scrutinizing historical outliers in drawing conclusions.
[...]
Part I of this Note provides background on the origins of this test, the rise of originalism, and the evolution of the use of history and tradition. Part II discusses how lower federal courts have used history and tradition to inform its decisions thus far. Part III breaks down the modern doctrine at the Supreme Court, most significantly the use of the history and tradition test in the 2021 term. Part IV describes how lower courts have struggled to apply the history and tradition test. Part V establishes a practical way for lower courts to apply the history and tradition test, balancing the interests of justice with the realities of the limits of the lower courts. The workable standard suggests that lower courts, in tandem with the use of expert witnesses or special masters, must engage in “historical quarrying.”
This abstract has been adapted from the author's introduction.
Repository Citation
Alexandra Michalak, Historians Wear Robes Now? Applying the History and Tradition Standard: A Practical Guide for Lower Courts, 32 Wm. & Mary Bill Rts. J. 479 (2023), https://scholarship.law.wm.edu/wmborj/vol32/iss2/6Included in
Constitutional Law Commons, Legal History Commons, Supreme Court of the United States Commons