Originalism after Dobbs, Bruen, and Kennedy
In three instances final time period, the constitutional ideas of historical past and custom performed essential roles within the reasoning of the Supreme Court docket. Dobbs v. Jackson Girls’s Well being Group relied on historical past and custom to overrule Roe v. Wade. New York State Rifle & Pistol Affiliation v. Bruen articulated a historical past and custom take a look at for the validity of legal guidelines regulating the proper to bear arms acknowledged by the Second Modification. Kennedy v. Bremerton College District regarded to historical past and custom in formulating the implementing doctrines for the First Modification Institution and Free Train Clauses.
Some who dislike these outcomes have characterised the instances as originalist. Others have instructed that the reasoning in these instances represent a brand new “Historical past and Custom” various to authentic public that means originalism, and even a substitute for originalism itself.
In a brand new paper now out there on SSRN, UVA Professor Lawrence Solum and I take a deep dive into the methodology of those three instances. Every case raises essential questions concerning the Court docket’s method to constitutional interpretation and building. Do Dobbs, Bruen, and Kennedy signify a brand new idea of constitutional interpretation and building primarily based on historical past and custom? Within the various, ought to the references to historical past and custom in these opinions be understood by the lens of constitutional pluralism as modalities of constitutional argument? Lastly, can using historical past and custom in Dobbs, Bruen, and Kennedy be reconciled with the Supreme Court docket’s embrace of originalism?
On this paper, we don’t specific our settlement or disagreement with the outcomes in these instances. As a substitute, we take this chance to elucidate the constitutional ideas of historical past and custom and establish 4 distinct roles that historical past and custom can play: (1) as proof of authentic that means and goal; (2) as modalities of constitutional argument inside a constitutional pluralism framework; (3) as a novel constitutional idea, which we name “historic traditionalism”; and (4) as implementing doctrines. With these ideas in thoughts, we then examine the roles of historical past and custom in Dobbs, Bruen, and Kennedy. Lastly, we articulate a complete technique for the incorporation of historical past and custom in constitutional jurisprudence.
The paper is Originalism after Dobbs, Bruen, and Kennedy: The Position of Historical past and Custom.
