Jonathan Green, Arizona State University Sandra Day O'Connor College of Law, has posted Some Traditional Questions About “History and Tradition”:
Recently, in Vidal and Rahimi, the Supreme Court reaffirmed that “history and tradition” are probative of, and in some cases dispositive of, the outer bounds of constitutionally enumerated rights. But for the Court’s originalists, that move is puzzling. If the Constitution’s legal content resides in the original meaning of its terms, how might a tradition of political practice that arose long after a constitutional provision’s adoption be legally relevant?
Eighteenth-century English jurists had an answer to that question. By 1791, it was well-established that where a written source of law codified a preexisting, common law right—like the freedom of speech (at issue in Vidal), or the right to keep and bear arms (at issue in Rahimi)—the scope of that right would continue to be defined, as before, by custom. The codification of an unwritten right in written law did not alter its status as a customary right, whose limits were set by a tradition that preceded and succeeded the text’s enactment. So, if the provisions at issue in Vidal and Rahimi codified preexisting unwritten rights into our Constitution, then under Founding-era interpretive rules, the original meaning of First and Second Amendments would just direct contemporary judges to look beyond their words, to pre- and post-enactment tradition. From the eighteenth century looking forward, the Court’s turn to “history and tradition” is entirely reconcilable to originalism, and may be required by it.
At the same time, excavating how tradition delimited the outer bounds of fundamental rights in the decades before ratification throws up a number of interpretive puzzles. Whose tradition, exactly? What is tradition, anyway: how did past jurists conceptualize it? And where an unwritten right had been codified into written law, to what extent could later practice reshape its original scope? These questions vexed English jurists across the eighteenth century, and were unsettled when our Constitution was adopted. If classical English constitutionalism offers a way to square originalism to “history and tradition,” it also highlights the challenges of using tradition to define the scope of rights today. Under the surface, eighteenth-century jurists had questions about “history and tradition” too.
--Dan Ernst
