HISTORY, TRADITION, AND FEDERALISM

<div> The Supreme Court’s invocations of history and tradition for determining the meaning of the federal Constitution have an uneasy—and, so far, under-theorized—relationship to principles of federalism. The Court speaks regularly of the nation’s history and tradition. <i>Dobbs</i>, in which the Court overturned <i>Roe </i>and <i>Casey</i> to hold there is no federal right to abortion, makes clear that in order to be protected from state interference under the Due Process Clause of the Fourteenth Amendment, a right—whether a right protected by the Bill of Rights and incorporated against the states or an unenumerated fundamental right— must be deeply rooted in the nation’s history and tradition and  essential to the nation’s scheme of ordered liberty. So, too, in <i>Bruen</i>, the Court held that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct and therefore to justify a regulation, the government must demonstrate that the regulation is consistent with this nation’s historical tradition of firearm regulation.  </div> <div> <br> </div> <div> It is not at all clear, though, that the Court really means the <i>nation’s</i> history and tradition (and its scheme of ordered liberty). For in determining whether or not a claimed right meets the test, the Court’s analysis invariably entails an examination of laws and practices of individual states. When the Court finds, from its state-by-state review, evidence of history and tradition (or, as in <i>Dobbs</i> and <i>Bruen</i>, a lack of such evidence), the finding is about the histories and traditions of individual states, one by one, and perhaps even of a large set of individual states, but it is not obviously a finding about the history and tradition of the nation as a distinct entity.  </div> <div> <br> </div> <div> As with all lumping, the approach carries an obvious risk. In imagining our nation from its parts, absent some reliable methodological tool to ensure that only true likes are grouped together, the inquiry risks exaggerating similarities among the states and discounting their differences. The search for federal meaning in state law is not just in tension with federalist principles supporting variation in and independence of state government design. It also represents a peculiar treatment of the U.S. Constitution. The Court has never fully explained why the meaning of a federal constitutional provision is to be yoked to state law. Can it be that the federal Constitution only protects rights already protected in the states and that it therefore serves, at most, as a clean-up charter to deal with occasional outliers? The history and tradition inquiry presents a perplexing irony: state courts are routinely criticized for lock-stepping, interpreting state constitutional provisions reflexively to mean the same thing as federal provisions, but perhaps the Supreme Court is at fault for failing to give independent meaning to the federal Constitution and instead just following along with a collapsed account of state law </div> <div> <br> </div> <div> If the Court’s turn to history and tradition means building federal constitutional law from state law bricks, far more attention is needed to explain and justify the enterprise and to its methodological challenges. This essay highlights and offers commentary on some of the attendant issues.  </div> <div> <br> </div> <div> <br> </div> <div> <br> </div> <div> <br> </div> <div> <br> </div>