At Dorf on Law, Eric Segall: Text, History, and Tradition in the 2021-2022 Term: A Response to Professors Barnett and Solum. from the introduction:
The 2021-2022 Supreme Court term was one of the most important in American history. In Dobbs v. Jackson Women's Health, the justices returned the issue of abortion completely to the states (and potentially Congress). In New Yok State Pistol & Rifle Ass's., v. Bruen, the Court substantially limited the ability of states to pass meaningful gun control laws. And in Carson v. Makin and Kennedy v. Bremerton School Dist., the justices further weaponized the free exercise clause as a restriction on the states while further limiting the reach of the establishment clause.
Constitutional law scholars across the ideological spectrum have been trying over the last seven months to make sense of these decisions and how they relate to originalism and the use of text, history, and tradition in constitutional law. One such effort is a recent article by two of the country's most prominent academic originalists–Professors Randy Barnett and Lawrence Solum. Their article, "Originalism after Dobbs, Bruen, and Kennedy: The Role of History and Tradition," is a complex and provocative assessment of three of the cases discussed above (they leave out Carson), as well as the authors' suggestions for how best to incorporate history and tradition into originalist judicial decision-making. There is little doubt this article will be widely-read and will constitute a major contribution to our academic debates over originalism. The authors posted the paper on SSRN just a few days ago and it already has over 1000 downloads.
The article says that it asks three major questions about the 2021-2022 term:
Do Dobbs, Bruen, and Kennedy represent a new theory of constitutional interpretation and construction based on history and tradition? In the alternative, should the references to history and tradition in these opinions be understood through the lens of constitutional pluralism as modalities of constitutional argument? Finally, can the use of history and tradition in Dobbs, Bruen, and Kennedy be reconciled with the Supreme Court’s embrace of originalism?
These are all important questions that judges and scholars will be wrestling with for a long time. Although the article might be a tad clearer on the authors' answers to the second and third of these questions, as to the first one, they state that "none of the cases from the October 2021 Supreme Court term represent a radical departure from prior uses of history and tradition by both public-meaning originalists and constitutional pluralists. The Court has not embraced a novel history-and-tradition alternative to either originalism or living constitutionalism."
I am going to focus on their first question in this blog post but also want to make clear the authors' reflections on the second two questions are interesting, important, and will certainly trigger much needed debate among originalists, living constitutionalists, and Court commentators of all stripes.
Contrary to Professors Barnett and Solum, I think last year's term both represents a radical departure from prior constitutional decision-making in some important respects but also represents business as usual in other important ways they don't discuss. I will start (and then end) with the latter observation. …
Posted at 6:06 AM