Reva Siegel, Yale Law School, has posted The "Levels of Generality" Game, or "History and Tradition" as the Right’s Living Constitution, which is forthcoming in the Harvard Journal of Law and Public Policy:
Why does the Roberts Court appeal to history and tradition as reason to change the law? We see this logic in Dobbs v. Jackson Women’s Health Organization (reversing the abortion right) and in New York State Rifle & Pistol Ass’n v. Bruen (striking down gun-licensing restrictions under the Second Amendment). This Essay shows that what explains the turn to history in these cases is not an identifiable method that directs interpreters how to decide contested constitutional questions but instead a mode of justification. Both Dobbs and Bruen claim that fidelity to the nation’s history and tradition in interpreting the Constitution will constrain judicial discretion as traditional forms of doctrine or openly value-based judgment cannot.
For some years now, I have analyzed the value-laden claims on the past that Americans make as they are arguing about the Constitution as “constitutional memory” claims. As this Essay demonstrates, my account of constitutional memory poses a direct challenge to originalism’s judicial-constraint thesis. What appear to be positive, descriptive claims about the past in constitutional argument are often normative claims about the Constitution’s meaning. I analyze this dynamic in the Justices’ decades-long debate over levels of generality: a judge who employs the most specific level of generality in describing past practice can conceal rather than constrain value-based judgment. And I illustrate this logic at work in United States v. Rahimi, a Second Amendment case before the Supreme Court this Term, in which the Fifth Circuit applied Bruen’s history and tradition analysis to hold that 18 U.S.C. § 922(g)(8), a federal law that disarms persons subject to domestic-violence restraining orders, is unconstitutional under the Second Amendment.
The Essay argues that we are all living constitutionalists now—but, crucially, not all living constitutionalism is the same. A conclusion identifies reasons why the Justices who present appeal to the past as claims of judicial constraint may engage in anti-democratic forms of living constitutionalism.
Update: Emily Bazelon on "How ‘History and Tradition’ Rulings Are Changing American Law" in today's NYT.
--Dan Ernst
