At Legal Theory Blog, Legal Theory Lexicon’s updated entry for History and Tradition in Constitutional Theory. From the introduction:
… [W]hat does “history and tradition” actually mean? Is history and tradition simply another name for originalism? Or is the turn to history and tradition part of a reconfiguration of constitutional pluralism by conservative justices? More radically, is there something genuinely new afoot: is traditionalism emerging as a distinctive approach to law?
It turns out that answering these questions is far from simple. We can begin with the remarkable spread of history-and-tradition tests across multiple areas of constitutional doctrine. Next, we examine an important methodological debate on the Supreme Court itself—between Justice Kavanaugh, the method’s most systematic judicial expositor, and Justice Barrett, who has pointedly observed that not all reliance on history is originalism. That debate opens onto a larger possibility: that we are witnessing the emergence of a new constitutional pluralism, in which text, precedent, and history and tradition function as the leading modalities of constitutional argument. Finally, we turn to theory, tracing traditionalism from Edmund Burke through Cass Sunstein’s Burkean minimalism to Marc DeGirolami’s traditionalism—the most fully developed account of history and tradition as a distinctive approach to constitutional law.
Posted at 6:02 AM