At SCOTUSblog, Haley Proctor: Text and history, not history and tradition. From the introduction:
It is widely believed that the Supreme Court adjudicates Second Amendment claims using a “history and tradition” test. The label (sometimes referred to as “text, history, and tradition”) has the potential to mislead, with bad consequences for Second Amendment litigation and beyond. This month’s column explains why I believe the label is inapt, and why “text and history” is a better label for the court’s approach to the Second Amendment – and constitutional interpretation more broadly.
To illustrate the stakes, let us begin with a First Amendment example, drawn from Stephanie Barclay’s essay Replacing Smith. In the 1870s, Congress narrowly rejected a constitutional amendment now commonly known as the Blaine Amendment, after Maine Congressman James G. Blaine. That amendment would have elaborated on the establishment clause by barring the use of public education funds to support “religious sects or denominations.” As the Supreme Court explained in Mitchell v. Helms, “[c]onsideration of the amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that ‘sectarian’ was code for ‘Catholic.’” Although the amendment failed, it reflected an attitude that (in Justice Felix Frankfurter’s words) “was firmly established in the consciousness of the nation.” Indeed, a large majority of states enacted their own versions of the Blaine Amendment; some were required to do so as a condition of being admitted to the Union. As demonstrated by a joint project of the Notre Dame Religious Liberty Clinic and the Orthodox Union, and a report by my colleague Nicole Garnett (with Tim Rosenberger and Theodore Austin), the effects of this spate of anti-Catholic activity endure to this day.
Does this “tradition,” which took shape nearly a century after “We the People” ratified the First Amendment, tell us something about what the government is and is not permitted to do “respecting an establishment of religion” or “the free exercise thereof”? The court has said no, and for good reason.
If popular practices long postdating the ratification of the Constitution can give shape to the rights that this founding document protects, many of those rights will take a form that would be unrecognizable to those who chose to codify them. . . .
Agreed, and the point generalizes. For example, as noted in yesterday’s post (scroll down), the fact that independent agencies — possibly beginning with the Interstate Commerce Commission — arose in the late-nineteenth and early-twentieth centuries doesn’t say much about the original meaning of the executive vesting clause and presidential removals. I’ve long been doubtful that, from an originalist perspective, the “tradition” part of the test was appropriate.
Posted at 6:09 AM