Vol. 98, No. 1

The Lost History of “History and Tradition”

Dov Fox* & Mary Ziegler†
Constitutional Law, History, Politics, Supreme Court
Articles

The Supreme Court has decided one blockbuster after another by appealing to “history and tradition,” deploying this trope to remake key features of the constitutional landscape: from overturning Roe to abolishing affirmative action; from narrowing the scope of public accommodations to widening the margin for church/state entanglements. The Court says that its history-and-tradition test emerged fully formed in 1997 from an assisted-suicide case that was designed to rein in the drift toward living constitutionalism under the Warren and Burger Courts. This origin story is compelling. The problem is that it is not true—not where the test came from or even what it is. The Court’s narrative erases decades of social-movement conflict that this Article is the first to excavate. This Article marshals original archives to reveal that the history-and-tradition test was fashioned from the crucible of earlier struggles: over the value of deep and more recent history, over which communities and what kind of evidence define tradition, and, ultimately, over the role of America’s past in our constitutional present.

The contours of this debate were sharpened across doctrines and eras, inside the courts and beyond them. Recovering this history uncovers a rival vision of the history-and-tradition test—not entrenched but evolving. Taking seriously this dynamic alternative makes three contributions. First, it casts doubt on major decisions about race, abortion, guns, and God, while challenging the fixed-in-time conception of traditionalism these rulings stand on. Second, the more adaptive version of history and tradition sheds light on puzzles, including the levels-of-generality problem, the constitutional-progressive response to charges of judicial activism, and how a modern conservative legal coalition was forged out of fierce divisions over originalist methods and outcomes. Finally, this lost method bears surprising implications for claims that span the ideological spectrum: from fetal rights and gay marriage to gender-affirming care and conversion therapy. For instance, entrenched history and tradition probably would not operate to protect widely accepted rights such as interracial marriage and medical refusal. And evolving traditionalism could protect yet-unrecognized rights that it would not protect right now, such as aid-in-dying or assisted reproduction.

[G]uided by the history and tradition . . . , we must ask what the Fourteenth Amendment means by the term “liberty.” . . . [The answer is that it] does not protect the right to an abortion.¹

—Justice Alito

[T]his Court has instructed that the Establishment Clause [for government involvement with religion] must be interpreted by “reference to historical practices and understandings.”²

—Justice Gorsuch

Only if a firearm regulation is consistent with this Nation’s historical tradition . . . [does] the individual’s conduct fall[] outside the Second Amendment’s “unqualified command.”³

—Justice Thomas

INTRODUCTION

How should courts determine when individual freedoms enjoy constitutional standing? This is the central question that the U.S. Supreme Court answered in a recent trilogy of rulings about abortion, guns, and God.⁴

All three ascertained the status and scope of constitutional rights by invoking “history and tradition.”⁵

In Dobbs v. Jackson Women’s Health Organization, the Court enlisted a history-and-tradition test to overturn Roe v. Wade⁶ on the ground that a right to abortion is not “deeply rooted in this Nation’s history and tradition.”⁷ New York State Rifle & Pistol Association v. Bruen revolutionized the Court’s Second Amendment doctrine by striking down gun control measures that do not “comport[] with history and tradition.”⁸ And in Kennedy v. Bremerton School District, the Court set aside its fifty-year-old Lemon test—which assesses church/state violations according to a law’s purposes, effects, and entanglement with religion⁹—and replaced it with an approach that’s anchored in the “traditions undergirding” the Establishment Clause, “consistent with a historically sensitive understanding” of its provisions.¹⁰

The role assigned to history and tradition varies across these contexts, as does the relationship between the two.¹¹ The constant in each is how rights claims are interpreted based on history and tradition: not what the text originally meant to people who were alive when it was ratified or the normative understandings that are most desirable to us today, but the social practices that resonate with our shared history and tradition. Reliance on history and tradition has made waves in a range of other constitutional domains too: from free speech, affirmative action, and voting rights, to tribal authority, immigration, and sentencing.¹² All told, the Court’s appeal to history and tradition has upended decades of settled law across the constitutional landscape, with a raft of new occasions on the horizon.¹³

A rich literature has emerged to unpack this turn to history and tradition. Sherif Girgis identifies the distinguishing mark of that test as gleaning constitutional meaning from “practices” that are widely accepted or deeply embedded within American life.¹⁴ Miranda McGowan expounds that these meaning-making practices may be undertaken by elected officials, social movements, or other ordinary citizens working together.¹⁵ Larry Solum and Randy Barnett explain that the relevant social practices enjoy density, breadth, and staying power in relation to a constitutional amendment or provision at issue.¹⁶

Marc DeGirolami distinguishes those practices from other sources of interpretation.¹⁷ They’re not moral principles like the “evolving standards of decency” that shape which punishments the Eighth Amendment bars as cruel or unusual, consistent with “the progress of a maturing society.”¹⁸ Nor do judicial precedents count as practices¹⁹—that is, unless it is state court judges applying state constitutional texts. Curtis Bradley and Neil Siegel clarify that the social practices which make up history and tradition constitute more than “historical gloss” on constitutional powers or limits.²⁰ They’re a standalone criterion for adjudicating disputes about when and why the Constitution recognizes individual rights.

Scholars have also criticized the use of history and tradition in Dobbs. Reva Siegel reveals that the majority’s method of discerning social practices by counting state laws was deployed by segregationists before it was rejected in Brown v. Board of Education.²¹ Aaron Tang argues that almost half the states that Dobbs credits wholesale abortion bans to, in fact, allowed the ending of pregnancies until quickening.²² Melissa Murray and Katherine Shaw show how democratic deficits like gerrymandering cast doubt on Dobbs’s rhetorically potent claim that abolishing the national right to abortion would facilitate deliberation in the states.²³

Yet the most salient feature of this history-and-tradition test has received just passing reference. Namely, it asks whether the putative right in question fits within a pattern of practice relative to the Bill of Rights or Civil War Amendments.²⁴ That inquiry is rooted in the era of ratification. The Supreme Court has presented this temporal limit as natural and neutral, detached from preferences or politics.²⁵ On the Court’s telling, the test emerged in response to the freewheeling, unenumerated-rights decisions of the Warren and Burger Courts. The Rehnquist and Roberts Courts turned to the history and tradition of a long-ago past in order to rein in that earlier impulse for Justices to make policy.²⁶

This fixed-in-time approach promises to anchor constitutional rights and even to resolve interpretive disputes about them by appeal to shared customs. Yet it distorts the origins and implications of the history-and-tradition test, obscuring fierce debates over its meaning and significance in 2024 cases about guns,²⁷ immigration,²⁸ presidential immunity,²⁹ and free speech.³⁰ The history-and-tradition approach has fractured Justices on matters including the space it makes for post-ratification evidence,³¹ what other kinds of evidence help to establish a tradition,³² what level of generality a tradition should be articulated at,³³ whether history and tradition can constrain Justices,³⁴ and its relationship to originalism.³⁵ These conflicts cannot be fully understood without a sense of the historical struggles over history and tradition that shape today’s debate. This Article excavates the origins of these debates to uncover a rival version of the history-and-tradition test missing from contemporary cases and commentary. Our analysis chronicles the deep roots that this hidden conception has in the Court’s own jurisprudence and the social-movement struggle that has unfolded alongside it. And it spells out distinctive attractions of this alternative for constitutional theory and practice.

Part I and II mine original archives to unearth a more dynamic understanding of this test that sees the potential for consequential practices to change over time when newer customs dislodge older ones. On this account, traditions aren’t entrenched but evolving. Those of more recent vintage must still have a longstanding pedigree and be deeply embedded into the fabric of the American life, even if they’re contested in a diverse and polarized country. This evolving form of traditionalism runs through half a century of conservative and liberal opinions, amicus briefs, and social movements. “[T]radition is a living thing” is how Justice John Marshall Harlan II described this ideal in 1961.³⁶

Part II reveals that entrenched traditionalism did not emerge until the 1980s. That is when Christian conservatives and the right-wing legal movement sought to bridge growing divides among them by harmonizing originalist interpretive methods with natural-law principles that were seen as predating the Constitution and informing it. The Federalist Society embraced interpretive methods based on original public meaning.³⁷ But antiabortion lawyers and other social conservatives sometimes found originalism too limiting and worried that it would not deliver their preferred outcomes that states be made to promote Christian values, and that laws permitting abortion be struck down as unconstitutional.³⁸ An entrenched approach to history and tradition forged a powerful coalition on the political right, allowing for evidence of what social conservatives deemed Christian teachings and Western values.

Part III spells out three payoffs of recovering the evolving vision of that test. First, it makes progress on doctrinal puzzles like the levels-of-generality problem;³⁹ the enduring charges that reliance on tradition is both too manipulable (covering for judicial activism) and too intransigent (rooting injustices);⁴⁰ and the blurry lines between traditionalism and methods that resemble it, like historical gloss (to clarify ambiguous terms) and liquidation (to lock in their meaning).⁴¹ Second, resurrecting that evolving history-and-tradition test offers a shared vocabulary with the mediating potential to broker ideological compromise (between the prevailing interpretive extremes of conservative and progressive constitutional theory) by splitting the difference between originalism and living constitutionalism.⁴² Finally, we apply both traditionalisms—entrenched and evolving—to show how each would resolve controversies from fetal rights and gay marriage to gender-affirming care and conversion therapy. The implications are surprising. For example, the entrenched history-and-tradition test likely would not protect widely accepted rights such as interracial marriage and medical refusal. Meanwhile, evolving traditionalism might protect yet-unrecognized rights like aid-in-dying and assisted reproduction in a future that made these practices routine, but it probably would not protect any of them right now.

I. SOCIAL MOVEMENT POLITICS

Today’s Supreme Court majority advances a distinctive origin story for the history-and-tradition test. Dobbs directs our attention to struggles over substantive due process in the 1960s and 1970s.⁴³ But there are other plausible places to begin telling the history of the history-and-tradition test. The uses of history in jurisprudence could be documented from the Court’s early cases at the outset of the nineteenth century. A more recent point of departure emerges in the second half of the twentieth century, when social movements first contested the meaning of history and tradition. Or one could start with the uses of history and tradition that have become so salient over the Court’s last couple Terms. A sensible middle ground for launching the history of history and tradition is when the Court got into the business of recognizing unenumerated rights in the early twentieth century.

It is true that Supreme Court decisions of the nineteenth century mentioned rights that animate the “fundamental principle[s] of a republican government”⁴⁴ or that applied to “all civilized nations.”⁴⁵ For example, in the 1823 case of Corfield v. Coryell, George Washington’s nephew, Justice Bushrod Washington, described “privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union.”⁴⁶ History and tradition also appears to have figured centrally in early jurisprudence on the Seventh Amendment.⁴⁷ These earlier discussions matter for various purposes adjacent to ours.⁴⁸

We focus our historical analysis on the twentieth and twenty-first centuries because that reflects the most faithful understanding of the history-and-tradition test applied by the Court today.

The question at the center of our inquiry—whether tradition and history are entrenched or evolving—became far more central to social-movement and judicial debate in the past several centuries than it was before. Consider the account of “general law” developed by William Baude, Jud Campbell, and Stephen Sachs—they argue that the Fourteenth Amendment “secured but did not confer” rights already recognized in general law, which was “derived from general principles and customs and operating across jurisdictions.”⁴⁹ These scholars acknowledge that the scope of the general law was characterized by “imprecision and woolliness”—not least when it came to the question of whether general-law principles were fluid, “capable of developing over time, through a course of long-standing legal practice”⁵⁰—and whether the “rights of Englishmen,”⁵¹ as Sachs writes, were a “closed set.”⁵² Baude, Campbell, and Sachs recognize that nineteenth-century Justices were comfortable with the imprecision of general law and did not always openly grapple with questions about the scope of common-law custom and tradition in ways we might expect today.⁵³ In the twentieth and twenty-first centuries, by contrast, the fixed-versus-fluid question became a flashpoint for constitutional conflicts for a range of actors.⁵⁴ By studying their debates, we can gain crucial perspective on the workings and origins of both an evolving and fixed approach to history and tradition today.

Earlier discussions of common-law tradition bear an ambiguous relationship to present-day case law. With the decisions of Slaughter-House Cases⁵⁵ and later, Erie Railroad Co. v. Tompkins,⁵⁶ the Court rejected the readings of the Privileges or Immunities Clause favored by some originalist scholars. Accordingly, Baude, Campbell, and Sachs acknowledge that their approach to general law might be—and remain—“legally dead.”⁵⁷ Earlier understandings of tradition—perhaps rooted in general law or in the Privileges or Immunities Clause—may not tell us much about how the Court will apply a history-and-tradition test in the future. While Sachs reads Dobbs as consistent with originalist arguments about the Privileges or Immunities Clause or general law,⁵⁸ profound tensions separate the approaches rejected in Slaughter-House and Erie from present-day traditionalism, which is better understood as a new phenomenon that’s distinct from originalism and worth taking seriously in its own right.⁵⁹

To be sure, by the twentieth century, the Court had long referred to tradition when the Justices decided the 1905 working-hours case of Lochner v. New York. There, the Supreme Court recognized a “liberty of person or of free contract” provided for in the Federal Constitution with little mention of where that liberty came from or how to identify it.⁶⁰ But in dissent, Justice Oliver Wendell Holmes advanced a role for history and tradition, suggesting that the meaning of the Fourteenth Amendment might be gauged by evaluating whether “a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.”⁶¹

Holmes did not explain how one should go about identifying such a tradition beyond suggesting that many a “reasonable man” would find nothing wrong with the disputed New York law.⁶² It would be another decade until a majority hinted at a role for tradition and history.⁶³ In the parental liberty case of Meyer v. Nebraska, the Court held that the Due Process Clause protected “those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men”—without explaining how they counted, or how much.⁶⁴ We focus on the period after Meyer because judges, litigators, and eventually, grassroots movements began a more robust debate about how tradition mattered in law. Which traditions should count—and was tradition necessarily backward looking? What kinds of evidence could establish a tradition? These questions began to more centrally influence debates on the pages of the United States Reports and beyond in the first decades of the twentieth century.

A. The Pre-History (and Tradition)

Arguments about history and tradition played a more dominant role in incorporation debates surrounding the Fourteenth Amendment.⁶⁵ In the years following the ratification of the Fourteenth Amendment, the Supreme Court has eviscerated its Privileges or Immunities Clause, leaving litigants to rely on the Due Process Clause when challenging the constitutionality of state policies.⁶⁶ Competing ideas about the effect of the Fourteenth Amendment on the Bill of Rights emerged after the Court began incorporating parts of the Bill of Rights against the states in Gitlow v. New York in 1925.⁶⁷ While Justice Hugo Black maintained that the Fourteenth Amendment had only incorporated the Bill of Rights,⁶⁸ other Justices believed that the Due Process Clause was itself a source of fundamental rights.⁶⁹

1. Holmes and Moody

Justice Holmes’ reflections on history and tradition came into clearer view in one early case, Twining v. State of New Jersey, where he joined a majority opinion suggesting that the meaning of tradition shifted over time.⁷⁰ Twining, a bank manager facing misdemeanor charges, had declined to testify on his own behalf, and a prosecutor suggested that his reasons for doing so were less than pure.⁷¹ Twining protested, arguing either that the Fourteenth Amendment incorporated a right against self-incrimination or that such liberty wasn’t enumerated under the Fourteenth Amendment.⁷² Rejecting Twining’s claim, Justice William Henry Moody laid out three principles governing unenumerated rights. He wrote that such a right could be “ascertained by an examination of . . . the common and statute law of England before the emigration of our ancestors.”⁷³

But this historical inquiry was not the end of the matter.⁷⁴ Moody suggested that the meaning of history and tradition was subject to change, but only in rare circumstances when government action offended “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.”⁷⁵ Twining ultimately lost—because the Court did not think that the right against self-incrimination had adequate historical pedigree, to be sure, but also because the Court found no evidence that the relevant tradition had changed.⁷⁶

This vision of tradition echoed the conservatism of Edmund Burke, the Anglo-Irish theorist who loomed large in early conservative constitutional theory.⁷⁷ Burke celebrated the wisdom reflected in time-tested social practices more than whatever meaning could be derived from abstract theories or principles.⁷⁸ Yet, he squarely rejected the notion that tradition could not change. Tradition, as Burke saw it, did not change in response to “floating fancies or fashions.”⁷⁹ But its slow pace of reform is not the only reason that tradition worked as a welcome check on haste or revolution. Precisely because tradition was flexible is what invited a manageable and incremental kind of change that discouraged more radical ruptures with the past.⁸⁰ In Twining, Justice Moody implicitly embraces this Burkean conception of tradition.

2. Ozie Powell and Frank Palka (not Palko)

An evolving-tradition test circulated in the Court’s jurisprudence throughout the 1930s, though its contours remained fuzzy. In Powell v. Alabama, for example, Ozie Powell and four other Black teenagers had hitched a ride on a freight train crossing Alabama when they got into a fight with several white boys.⁸¹ Two white girls then accused Powell and his co-defendants of sexually assaulting them.⁸² The State tried Powell and his co-defendants without appointing defense counsel and sentenced all five to death.⁸³ Powell’s counsel responded that Alabama had denied the defendants due process of law by failing to appoint them counsel.⁸⁴ The Court recognized that, in the past, it had applied a primarily backward-looking history-and-tradition test, asking about “the settled usages and modes of proceeding under the common and statute law of England before the Declaration of Independence,” assuming they had not proven “unsuited to the civil and political conditions of our ancestors by having been followed in this country after it became a nation.”⁸⁵ Based on the evidence before it, the Powell Court concluded that the right to counsel failed this backward-looking test.⁸⁶ Nevertheless, the Court found that such a right was central to due process by focusing on “later cases,” including Twining itself.⁸⁷

By contrast, in Snyder v. Massachusetts, a man faced charges for murder and armed robbery, and prosecutors filed a motion requesting that jurors be brought to the gas station where the murder took place.⁸⁸ Snyder argued that defendants had an unenumerated right to tour crime scenes alongside jurors—a right deeply rooted in the nation’s tradition and history.⁸⁹ In rejecting Snyder’s claim, the Supreme Court likewise scoured decisions dating back to 1747 and said little about current practice.⁹⁰

But elsewhere, the Court reiterated that tradition was a living thing. In an incorporation case, Frank Palka (whose name would be forever misspelled as “Palko”) broke into a store, stole a phonograph, and murdered a police officer while making a getaway.⁹¹ A Connecticut jury convicted Palka, but the State appealed, invoking a Connecticut law permitting new trials when there had been an error “to the prejudice of the state.”⁹² Palka’s appointed lawyer, David Goldstein, argued that a second trial would violate Palka’s right to avoid double jeopardy.⁹³ In Palko v. Connecticut, the Court held that double jeopardy protections did not qualify as a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”⁹⁴ In reaching the conclusion, the Court said almost nothing about the constitutional past.⁹⁵ “Reflection and analysis” were all that was required—whether the Court could imagine an equitable justice system without such a right.⁹⁶

B. Post-War Family Planning

A more full-throated vision of an evolving history-and-tradition test emerged from conflicts about birth control—many of them unfolding outside the Supreme Court. Following World War II, Planned Parenthood combined arguments about the need to curb population growth with existing claims about the rights of married couples to plan their families.⁹⁷ But in the 1950s, it was segregationists rather than birth controllers who insisted that the past should guide constitutional interpretation—and that constitutional meanings were entrenched rather than evolving.⁹⁸ As Reva Siegel has shown, the famed Supreme Court litigator John Davis, who represented South Carolina in the Brown litigation, argued that the meaning of the Fourteenth Amendment was fixed at the time of ratification.⁹⁹ To determine the amendment’s original expected application, Davis pointed out that “23 [states] either then had, or immediately installed, separate schools for white and coloured children.”¹⁰⁰ Davis’s argument ultimately failed to convince the Brown Court. But other segregationists persisted in using state counting as a key method to establish constitutional meaning.¹⁰¹

1. “Tradition is a living thing.”

A different vision of the role for history and tradition appeared in conflicts about contraception at the Supreme Court. In the 1950s, Planned Parenthood lawyers hoped to challenge Connecticut’s anti-contraception law, the last in the nation to bar birth control by married couples.¹⁰² By 1961, when the Supreme Court was poised to hand down a decision on the law, the environment seemed ripe for a favorable decision. The FDA approved the birth control pill in May 1959, and within two years, one million people had used it.¹⁰³

The case that would become Poe v. Ullman had been winding its way through the Connecticut courts, and the plaintiffs in Poe told various horror stories about their lack of contraceptive access: one woman suffered three consecutive stillbirths, while a second nearly lost her life as a result of a foreseeably dangerous pregnancy.¹⁰⁴ Their attorney, Fowler Harper, made little mention of an unenumerated right to privacy. His argument instead mirrored an amicus brief from the Planned Parenthood Federation of America: the Connecticut law lacked a rational basis, forcing couples to use contraceptive methods that were “the most unreliable and least desirable.”¹⁰⁵ Nor did Connecticut mention history and tradition in defending the law, instead chastising Planned Parenthood for making an argument that was “sociological and physiological rather than legal.”¹⁰⁶

It was Justice John Marshall Harlan who raised the importance of history and tradition in his Poe dissent. The majority ruled that the plaintiffs had not suffered a redressable injury because they faced neither prosecution under the Connecticut law nor a realistic threat of one (after all, as the majority remarked, birth control was “commonly and notoriously sold in Connecticut drug stores”).¹⁰⁷ Justice Harlan disagreed. He said that the Court should identify unenumerated rights by consulting “what history teaches are the traditions from which it developed as well as the traditions from which it broke.”¹⁰⁸ The meaning of neither history nor tradition was fixed, in his view. “That tradition is a living thing.”¹⁰⁹ Harlan’s test pointed to a traditionalism that evolves. This change doesn’t come easy or rely on “merely personal and private notions.”¹¹⁰ But when a tradition did evolve, and when a new way of being fell into place, it was this more recent constitutional understanding that carried the day—in the tradition that married couples were using contraception to plan their families.¹¹¹

2. Constitutional Updating

Harlan’s opinion failed to carry the day in Poe, and his dissent did not command the change that he sought in social practices around privacy and birth control. But his proposed inquiry into evolving traditions raised a hard question about majority decisions that might influence such reform in the future. What if a judicial intervention itself nudges a tradition to change, or undermines a shift otherwise and already underway? Curtis Bradley and Neil Siegel observe that updating the Constitution in response to society’s changing needs “implicates an inherent tension between the benefits of customary evolution and centralized judicial review. Given the authority that federal courts possess in our constitutional system today, practice is likely to coordinate around judicial decisions.”¹¹² Won’t the recognition of salient rights like contraception and interracial marriage leave a mark on those practices? How can the Supreme Court identify an organically evolving tradition within American society if its own decision reworks the very content of that tradition or what it ultimately comes to be?¹¹³

Legal historians harbor well-founded skepticism about the degree to which the Supreme Court changes public attitudes or popular understandings of the Constitution, never mind the social traditions that might follow from those ideals. Scholars like Jeffrey Rosen, Reva Siegel, and Robert Post have documented the extent to which the Court tends to mirror or codify constitutional understandings, rather than transform them.¹¹⁴ They present robust evidence to reject a strong version of the transformation claim that the Court alone can dictate a new tradition. What of a weaker version? The first important thing to say is there is good reason to think the Court’s decisions have little meaningful effect on behavior at all—whether because most of its rulings don’t break through into the public conscience, or because, even if they do, most Americans may find the reasoning or result unconvincing.¹¹⁵

But two other possibilities emerge. First, the Court might sometimes reinforce or advance a shift that is already underway. Michael Klarman shows that seems to have happened with Brown, further legitimizing a new consensus in favor of integration.¹¹⁶ Also Obergefell, which might have done the same for same-sex marriage.¹¹⁷ On other occasions, backlash to a decision may push a tradition in the opposite direction. For example, the Massachusetts Supreme Judicial Court’s same-sex marriage decision in Goodridge v. Department of Health appeared to have triggered resistance to same-sex marriage, at least in the short term.¹¹⁸ Dobbs looks to have sparked a similar backlash.¹¹⁹ By the most reliable accounts, the incidence of abortions hasn’t gone down overall since trigger bans went into effect, with many Americans in ban states accessing pills by mail or crossing state lines for care.¹²⁰

In evaluating an evolving tradition, it makes little sense to disentangle the influence of an intervening decision that makes, at most, a modest contribution within a larger constitutional conversation. A decision might nudge changes in social practice in one direction or another. But that influence depends on the persuasiveness of its reasoning and the extent to which a court’s conclusion tracks what people already think. The evolving test needn’t stop its search for relevant practices when the Court hands down a decision that recognizes a new right or takes an old one away. Instead, it looks to the most current among longstanding traditions, which in turn incorporates how much, if at all, the Court ended up impacting that tradition and how.

3. Privacy and Penumbras

Harlan’s evolving-tradition test reflected this dialogic dynamism. It embodied the idea that social practices around contraception had changed, especially among married people, including Catholics.¹²¹ In the early 1960s, many believed that the Vatican would soften its opposition to birth control,¹²² and some Catholic leaders suggested that the church’s living traditions compelled them to do so.¹²³ By the mid-1960s, there were signs that lay Catholics made claims on tradition as well—over half of them in a 1966 poll favored federal funding for contraceptive programs.¹²⁴ While this dialogue took place mostly within Catholicism, its effects reverberated more broadly, for it had been Catholics who had most vigorously opposed the legalization of contraception since at least the 1930s.¹²⁵

This idea of an evolving tradition around contraception struck proponents of birth control as promising, and Harlan’s idea of a living tradition appeared to be a perfect vehicle for it. When Griswold came before the Court, Thomas Emerson and Katie Roraback, the attorneys for the Planned Parenthood League of Connecticut, argued that there was an unenumerated right to privacy that encompassed married couples’ use of birth control.¹²⁶ But how would a court define its limits? Citing Harlan’s dissent in Poe, Roraback and Emerson offered three guideposts for an evolving tradition test: “reason, tradition and current practice.”¹²⁷ Only proof of a new way of being, one that mirrored “current practice,” would carry the day because it would show that the relevant constitutional tradition had changed.

The Court’s decision in Griswold hardly settled questions about the utility of an evolving history-and-tradition test. Justice William O. Douglas’s majority opinion famously concluded that this right could be found in the Constitution’s penumbras.¹²⁸ The constitutional past seemed to matter in this analysis: Douglas stressed that marital use of contraception touched on a right to privacy older than the Bill of Rights, but the precise role for history or tradition was hardly clear.¹²⁹ Justice Goldberg’s concurring opinion centered on the Ninth Amendment and looked to history and tradition for guidance in fleshing out which liberties that amendment guaranteed.¹³⁰ By far the longest discussion of an evolving tradition test, however, came in Justice Hugo Black’s dissent.¹³¹ He argued that any evolving-tradition test required judicial activism.¹³² How could the Justices determine that a tradition had changed? Black quipped: “Our Court certainly has no machinery to take a Gallup poll.”¹³³

C. Sex, Abortion, and Cohabitation

After Griswold, the fate of an evolving-tradition test would intersect with a growing movement to reform criminal abortion laws.¹³⁴ In 1962, the American Law Institute (“ALI”) released changes to the Model Penal Code that included proposed reforms to criminal abortion laws, including exceptions for rape, incest, and certain fetal abnormalities and health threats.¹³⁵ By the mid-1960s, some state legislators had begun considering ALI bills, and antiabortion scholars, lawyers, and activists started to mobilize.¹³⁶

Leading antiabortion commentators insisted that respect for fetal life (and the criminalization of abortion at any stage in pregnancy) were deeply rooted in the nation’s history and tradition—and that this conviction had nothing to do with Catholicism, the faith practiced by most in the early antiabortion movement. At first, these arguments, too, echoed the idea of an evolving tradition. Antiabortion scholars did not limit their claims to the idea that Christian teachings, Western civilization, and the common law had always protected fetal life, even if some, like antiabortion scholar Eugene Quay, argued that “[p]rotecting the life of the unborn child has been a major concern of the earliest laws known to us.”¹³⁷

1. Catholics, Protestants, and Jews

Abortion-rights supporters questioned whether the nation’s history and tradition were as clear as abortion opponents claimed—in either the past or the present. In 1967, the Protestant Council of the City of New York and three Jewish organizations released a statement insisting the contemporary opposition to abortion did not reflect Judeo-Christian values or even national customs.¹³⁸ Harriet Pilpel of Planned Parenthood similarly explained in 1970 that “[t]hose of us who did not grow up in rigid religious tradition which decries all abortion . . . as murder, look at abortion . . . in terms of freedom of choice as to when and whether to have a child.”¹³⁹ The history and tradition of abortion remained contested as the conflict moved into the courts.¹⁴⁰

Significantly, both proponents and opponents of legal abortion at times framed tradition as evolving. In 1971, for example, Robert Byrn, an antiabortion law professor, sought to be named the guardian ad litem for all fetuses scheduled for abortion in New York City’s municipal hospitals.¹⁴¹ While claiming that rights for the fetus had been recognized since “time immemorial,” Byrn stressed that this claim constituted a living tradition, with emerging awareness of the rights and humanity of the unborn child in modern tort law, human rights law, and welfare law.¹⁴² Byrn thus conceded that constitutionally relevant traditions change over time.¹⁴³ In rejecting his fetal-rights argument on the merits, the New York Appellate Division defined history and tradition in a similar way, looking both to understandings at the time of the founding and the shifting meanings established in the present day.¹⁴⁴

2. From Poe to Roe

When the Supreme Court agreed to hear Roe v. Wade, those on both sides contested how a history-and-tradition test would apply to the constitutional status of abortion bans. Some antiabortion attorneys like Joseph Witherspoon, a member of the board of directors of the National Right to Life Committee, focused not on Poe’s evolving traditionalism, but on what he described as the original meaning of the Fourteenth Amendment.¹⁴⁵ In an amicus brief for the National Right to Life Committee, Juan Ryan, the long-standing president of the organization, likewise suggested that abortion could not be an unenumerated right unless there was an unbroken tradition supporting it.¹⁴⁶ Ryan argued that abortion “was always condemned at common law.”¹⁴⁷

In Roe, abortion-rights groups made their own claims about history and tradition. Planned Parenthood’s amicus brief in Roe sought to discredit the historical ancestry of fetal personhood, claiming that there was “only one instance other than the very recent abortion cases in which the contention has been made that a fetus is a person under the Fourteenth Amendment.”¹⁴⁸ An amicus brief submitted by a coalition of feminist organizations insisted that an evolving tradition test favored the recognition of abortion rights.¹⁴⁹ The Fourteenth Amendment, the feminist brief reasoned, required an analysis of “its full development and its present place in American life throughout the Nation.”¹⁵⁰

When the Court handed down a decision in Roe, the meaning of history and tradition lurked in the background of the debate between the majority and dissent. The majority acknowledged that medical customs around abortion had once been very different, culminating in abortion’s criminalization in most states during the nineteenth century.¹⁵¹ Critical to the majority’s telling was how the relevant tradition had changed: physicians had called for the reform of criminal laws, and abortion itself had become safer.¹⁵² Roe credited these changing practices and values in defining the scope of constitutional privacy.¹⁵³ By contrast, Justice William Rehnquist, writing in dissent, emphasized that the framers of the Fourteenth Amendment would not have recognized a right to choose abortion, but that’s not all.¹⁵⁴ He also suggested that the abortion right would fail an evolving history-and-tradition test. “Even today,” he said, “when society’s views on abortion are changing, the very existence of the debate [about abortion] is evidence that the ‘right’ to an abortion is not so universally accepted as the appellant would have us believe.”¹⁵⁵

3. City of East Cleveland

Harlan’s evolving history-and-tradition test reemerged in the Supreme Court in Moore v. City of East Cleveland.¹⁵⁶ Ordinances like the one in Moore, which zoned certain neighborhoods for nuclear families, formed part of an intensifying conflict about what the American Civil Liberties Union (“ACLU”) called sexual privacy.¹⁵⁷ A backlash to the sexual revolution in the 1960s and 1970s took aim at nonmarital cohabitors.¹⁵⁸ In 1972, twenty-eight states and several local communities criminalized cohabitation outside of marriage.¹⁵⁹ A more subtle strategy used family zoning ordinances like the one in Moore to exclude couples who did not wish to marry or were prevented from doing so by law.¹⁶⁰

This backlash belied fundamental changes in how Americans lived. Attitudes toward premarital sex were becoming more permissive, and premarital sex was becoming more common.¹⁶¹ By the 1970s, the advent of no-fault divorce meant that marriages were often temporary—the rate of no-fault divorces doubled¹⁶²—and the women’s liberation movement challenged a sexual double standard governing marriage while insisting that marriage should be unnecessary for women’s security or thriving.¹⁶³ The practice of living with non-nuclear family was increasingly common, even if states and cities sought to rein it in.

In Moore, Inez Moore was raising her grandsons, and her attorneys argued that the nation’s evolving history and tradition meant that East Cleveland could not use its zoning laws to exclude a family like hers.¹⁶⁴ Moore’s brief stressed that the extended family was an “institution that predates, and very likely will antedate, other legal and social institutions, such as the municipality.”¹⁶⁵ But contemporary recognition of the importance of the extended family was important too. “This practice of expanding the home to assist relatives,” the brief explained, “has continued to be an accepted tenet of our society.”¹⁶⁶ The ACLU’s brief in Moore asked the Court to go further, recognizing a substantive due process right to “determine basic family relationships and living arrangements,” as well as “broad rights to free association and privacy within the home.”¹⁶⁷

The Court voted to invalidate East Cleveland’s ordinance, and Justice Lewis Powell wrote a plurality opinion joined by three of the Court’s more liberal Justices.¹⁶⁸ Powell agreed with the ACLU that Moore’s decision to live with and raise her grandsons fell into the category of family rights protected under the Fourteenth Amendment.¹⁶⁹ Powell acknowledged that “[t]here are risks when the judicial branch gives enhanced protection to certain substantive liberties without the guidance of the more specific provisions of the Bill of Rights.”¹⁷⁰ At the same time, he made clear that traditions must change, and often did, but that the process took time and required the forging of new norms and consensus.¹⁷¹ The risks of judicial overreach were no reason for leaving unenumerated rights unenforced or artificially limited. Instead, the Court would look to an evolving tradition test, one that would show “respect for the teachings of history [and] solid recognition of the basic values that underlie our society,” while recognizing and honoring meaningful changes in tradition over time.¹⁷²

II. FORGING A CONSERVATIVE LEGAL MOVEMENT

A very different conception of history and tradition helped to bridge divides in an emerging conservative coalition. By the early 1980s the Federalist Society had formed and was rapidly expanding, with Ronald Reagan tapping the organization’s members to join his administration or nominating them to the federal judiciary. Originalism emerged as a foundational principle that guided the conservative legal movement’s approach to the Constitution and led the Reagan Administration to promise voters revolutionary changes in the law under the cover of neutrality. But originalism itself was not a perfect vehicle for the demands of the emerging conservative Christian bar or its counterparts in the antiabortion movement.

Conservative Christian lawyers, for their part, believed that the nation’s founding itself was explicitly Christian and wove religious teachings into the founding document—a claim that the Federalist Society was not prepared to make. A kind of Burkean history-and-tradition test did not suit conservative Christian lawyers either. Judges who adopted it had recognized the very rights that conservative Christians believed to be at odds with the nation’s founding character. For abortion opponents, arguments from original intent or original public meaning for fetal personhood were complicated because the framers of the Fourteenth Amendment said nothing about abortion, and because the antiabortion movement of the nineteenth century said nothing about the Constitution.¹⁷³

A looser focus on history and tradition—as opposed to original intent, original public meaning, or original expected application—had a unique appeal for social conservatives. For abortion opponents, looking more broadly at history and tradition could account for a range of other evidence beyond 1868 that included stigma surrounding abortion, criminal abortion laws that remained in place for nearly a century, and the like. For conservative Christians, a history-and-tradition approach could allow attorneys to weave in beliefs about a faith-based founding without explicitly tying interpretation to natural law or religious doctrine—and without imputing a desire to enforce Christian beliefs to framers who themselves had varied views of religion. This new history-and-tradition approach wasn’t evolving but entrenched. It assumed that the meanings of constitutional provisions were more or less fixed around the time of their ratification—and that later developments and constitutional understandings were entirely irrelevant.

A. Coalition and Constitution-Making

1. The Federalist Society

In 1968 and 1972, Richard Nixon had campaigned on criticism of the Supreme Court, which he painted as soft on crime.¹⁷⁴ Nixon’s comments galvanized conservatives who were critical of what they saw as unprincipled decisions of the Warren and Burger Courts. But in the 1970s, Nixon nominees hardly proved to be rock-ribbed conservatives. After all, it was a Nixon nominee, Harry Blackmun, who wrote the majority in Roe.¹⁷⁵

Ronald Reagan’s election in 1980 represented an unprecedented opportunity for the Federalist Society, which organized in 1983.¹⁷⁶ The founders and early members of the Federalist Society had any number of objections to the legal status quo. Some, aligned with business interests and libertarianism, sought to create a legal bulwark against the threat posed to business by progressive public interest groups like the Environmental Defense Fund.¹⁷⁷ Others had concerns about what they saw as race-based preferences or religious liberty.¹⁷⁸ The Federalist Society itself served as an umbrella for conservative lawyers that would “break what [members] see[] as the liberal control of many of the institutions of modern America.”¹⁷⁹

For Reagan, the Federalist Society offered a ready supply of smart and reliably conservative lawyers, both for positions in the administration and judicial nominations. Attacks on the Court delivered a potent political payoff.¹⁸⁰ On the campaign trail, Reagan channeled backlash to the decisions of the Warren and Burger Courts and vowed to stop the Court from “threatening to change traditional ways of life.”¹⁸¹ Reagan ran on a platform that included a commitment to nominate “judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life.”¹⁸²

But before and after his election, the American Bar Association hammered Reagan for elevating ideology over qualifications, and the administration looked for an interpretive method—or set of traits—that would appear neutral and legitimate while ensuring the kinds of results that Reagan demanded.¹⁸³ As Reva Siegel has shown, aligning with the Federalist Society offered an alternative source of legitimacy for the judges the administration put forward. Originalism, in turn, commended itself to the Reagan Administration and the conservative legal movement as a way to frame the administration’s vision of the law and identify sympathetic judges, without calling for substantive and specific outcomes.¹⁸⁴

After Reagan’s re-election, the Federalist Society established itself as a pipeline to power: Edwin Meese, the attorney general, launched an attack on judicial activism at the organization’s national gathering in 1985; Supreme Court Justice Antonin Scalia was another prominent speaker.¹⁸⁵ Where conservatives had been disorganized and demoralized, the Federalist Society united them by appealing to originalism and judicial restraint—and by rallying against the influence of left-leaning legal scholars like the movement for Critical Legal Studies.¹⁸⁶ The Federalist Society claimed that the legal left had distorted the judiciary’s proper role insofar as “the independence of the Supreme Court [was] at risk of being subverted by political gamesmanship.”¹⁸⁷

The Federalist Society was an insurgent force challenging a legal orthodoxy that had been accepted by a broad spectrum of legal professionals for decades—and was epitomized by the putative legalism of the Warren Court.¹⁸⁸ Reframing that legal consensus as political allowed Federalist Society leaders to claim that they were not revolutionaries but stewards of the rule of law.¹⁸⁹

2. The Rutherford Institute

But antiabortion lawyers and conservative Christian litigators did not see originalism as ideal, at least not how Meese and his colleagues defined it. Antiabortion lawyers hoped eventually for a court that would recognize fetal personhood.¹⁹⁰ In recent decades, the movement promoted a wide range of arguments that reflected existing Supreme Court jurisprudence—the recognition of a new suspect class or a substantive due process right—more than it did textualism or originalism.¹⁹¹ Attorneys for conservative Christian groups, like the Rutherford Institute, believed that courts should adhere to the Christian principles they claimed animated the nation’s founding.¹⁹² An entrenched history-and-tradition test could reconcile these ambitions with the Federalist Society’s calls for judicial modesty.

A trial of this entrenched approach to history and tradition came in the form of a struggle over the fate of criminal sodomy laws. As Bowers v. Hardwick was making its way to the Supreme Court, an emerging conservative Christian public-interest bar changed the claims made on a history-and-tradition test.¹⁹³ The Rutherford Institute, which opened its doors in 1982, played a particularly important role in the creation of a fully entrenched version of the test.¹⁹⁴ There were other conservative Christian litigation firms when John Whitehead launched Rutherford, but Whitehead himself was renowned because of his success in Christian publishing.¹⁹⁵ Like other prominent conservative Protestants, Whitehead maintained that the Constitution was a Christian document.¹⁹⁶ The Fundamental Law, “clearly expressed in God’s revelation as ultimately found in the Bible,” had shaped the nation’s founding as well as the Constitution, which “presuppose[d] the Declaration [of Independence] and the higher, fundamental law to which the Declaration [bears] witness[].”¹⁹⁷

When Rutherford filed as amicus in Bowers, an evolving-tradition test might have served Rutherford’s aims: less than a third of Americans polled in 1986 opposed sodomy bans.¹⁹⁸ But Rutherford attorneys framed the nation’s traditions as both Biblical and unchangeable, and they wove this conviction into a vision for the history-and-tradition test.¹⁹⁹ Antiabortion lawyers had made a similar argument in struggles over end-of-life decision-making, insisting that legitimate substantive due process rights had to reflect the broader history of “Western Civilization.”²⁰⁰ Rutherford’s amicus brief argued that criminal prohibitions of sodomy had roots in “the Judeo-Christian Scriptures.”²⁰¹ Remarkably, Rutherford also acknowledged that attitudes toward same-sex intimacy had changed—in recent years, tolerance for same-sex intimacy had grown—if not impressively.²⁰² But this contemporary history did not matter, Rutherford insisted, for a deeply rooted tradition could not evolve.²⁰³

Originalism might have delivered the same result in Bowers as this kind of entrenched history-and-tradition test. The framers of the Fourteenth Amendment had drafted its text at a time when criminal sodomy laws were venerable and unquestioned. It would not be long before state lawmakers began expanding sodomy laws to cover oral sex, while applying them more selectively to same-sex intimacy.²⁰⁴ Looking at an entrenched history and tradition—which could include scriptural condemnations of sodomy—would likely have yielded the same result. But for Rutherford, the point was to advance an alternative that could take into account other Christian and “Western” values across the broader run of cases—and to advance a test that both the conservative legal movement and Christian legal movement could sometimes embrace.

The Bowers Court did not fully adopt an entrenched history-and-tradition test, even as the Court upheld Georgia’s sodomy ban.²⁰⁵ The majority noted that “[p]roscriptions against [sodomy] have ancient roots,” and that more than a dozen states criminalized sodomy, both at the time that the Bill of Rights was written and at the ratification of the Fourteenth Amendment.²⁰⁶ But the majority also emphasized that there was no new, tolerant tradition regarding sodomy: “24 States and the District of Columbia continue to provide criminal penalties for sodomy.”²⁰⁷ Justice Burger, who contended that condemnation of sodomy was “firmly rooted in Judeao-Christian moral and ethical standards,” picked up on even more of Rutherford’s claim.²⁰⁸

B. From Michael H. to Casey

Movement organizations were not very involved in the 1989 case of Michael H. v. Gerald D., but the history-and-tradition test was front and center.²⁰⁹ Conflict over that test continued to be central in constitutional struggles over abortion too. The Supreme Court whittled away at Roe in a series of decisions, including another from 1989, Webster v. Reproductive Health Services, which articulated the view that Roe’s trimester framework was hopelessly unworkable.²¹⁰ When the Justices agreed to hear a challenge to a Pennsylvania multi-restriction law, in Planned Parenthood of Southeastern Pennsylvania v. Casey,²¹¹ reproductive rights attorneys Kitty Kolbert and Linda Wharton argued that the history-and-tradition test required exploration of “evolving standards” for both liberty and equality.²¹²

1. Integrating the New Christian Right

Antiabortion lawyers, for their part, invoked Bowers as the prime example of an entrenched history-and-tradition test²¹³: they argued that abortion failed that test because it had been “a crime at common law.”²¹⁴ The plurality decision in Casey invoked Justice Harlan’s dissent in Poe and reinforced that tradition was a “living thing”—one defined not by a single moment in the past (or any one interpretation of that moment).²¹⁵ Casey described the Court’s own substantive due process decisions as helping to define past tradition, but said little else.²¹⁶

Casey, together with growing conflicts over same-sex marriage and end-of-life decision-making, increased interest in a history-and-tradition test as a mobilizing tool on the right. Before the second half of the 1990s, mostly single-issue antiabortion groups had fought for influence in the conservative legal movement, with key figures bridging the divide between the two. These included such figures as James Bopp Jr., the influential general counsel for the National Right to Life Committee tapped to head a new election law and campaign finance committee within the Federalist Society, and Leonard Leo, the Federalist Society attorney with deep ties to antiabortion activism and conservative Catholic voters who had been tasked with steering Clarence Thomas’s Supreme Court confirmation through Congress.²¹⁷

2. Alliance Defending Freedom

In 1994, Larry Burkett, a tycoon in the world of Christian financial consulting, teamed up with Bill Bright, the founder of the massively successful Campus Crusade, to develop a conservative Christian alternative to the ACLU that they would call the Alliance Defense Fund (“ADF”) (later the Alliance Defending Freedom).²¹⁸ Bright and Burkett convinced a group of leading televangelists in 1993 that conservative Christian litigators were massively underfunded—a conclusion that led to the founding of ADF, which would fund cases involving “religious freedom, the sanctity of human life, and family values.”²¹⁹ Central to this vision was a particular approach to history and tradition, one that fixed on a point in the nation’s supposed past while assigning Christian Scripture a foundational role in determining the Constitution’s meaning. “America’s founders were Christians who established our nation on Christian principles, deeply rooted in the Bible,” ADF leader Alan Sears explained in a 1996 fundraising letter.²²⁰

ADF quickly built up a formidable budget, desperately needed by even the best-funded antiabortion groups, and ADF’s claims about the persecution of Christians resonated with antiabortion activists angry about the prosecutions and fines of those seeking to block entrances to reproductive health facilities.²²¹ But most antiabortion groups remained loathe to stray from a single-issue framework, and members of the Federalist Society did not openly embrace ADF’s vision of a Christian Constitution. Rallying around a history-and-tradition test could overcome these differences.

C. Evolving and Entrenched Traditionalism

In the mid-1990s, a handful of states began passing aid-in-dying laws. Antiabortion attorneys argued that those laws violated the Constitution.²²² When the Supreme Court agreed to hear Glucksberg, antiabortion groups privileged arguments about history and tradition.²²³ “It is clear that a right to assisted suicide is neither implicit in the concept of ordered liberty nor deeply rooted in American history and tradition,” the National Right to Life Committee argued.²²⁴

1. The Battle in Glucksberg

The right-to-die advocates litigating Glucksberg stressed that Casey had not “removed history and tradition from the due process equation.”²²⁵ Instead,

Casey recognized that constitutional significance inheres . . . not in the historic legality or illegality of a specific act, but in the treatment, in our history and tradition, of interests like those in bodily integrity and autonomy, in avoiding pain and suffering, and in making profoundly intimate and personal life-shaping decisions.²²⁶

The ACLU’s amicus echoed this interpretation, stressing that the right of “a mentally competent, terminally ill person to choose an end to [physical] suffering” was “deeply rooted in [the] Nation’s history and tradition.”²²⁷

Glucksberg rejected constitutional claims against assisted suicide but did not clearly embrace an entrenched history-and-tradition test. Justice Rehnquist’s majority opinion juxtaposed living constitutionalism with an alternative focused on “fundamental rights found to be deeply rooted in our legal tradition.”²²⁸ And Rehnquist stressed themes of judicial restraint that conservatives had tried to associate with an entrenched traditionalism, suggesting that a focus on history and tradition could “rein in the subjective elements that are necessarily present in due process judicial review.”²²⁹

But Glucksberg hardly focused on just a few points in the distant constitutional past.²³⁰ The Court also stressed more recent support for bans on aid-in-dying, which had “been reexamined and, generally, reaffirmed.”²³¹ And Glucksberg reaffirmed that Casey had applied a history-and-tradition test.²³² “[T]he Court’s opinion in Casey,” Glucksberg reasoned, “described, in a general way and in light of our prior cases, those personal activities and decisions that this Court has identified as so deeply rooted in our history and traditions, . . . that they are protected by the Fourteenth Amendment.”²³³ This was a far cry from the evolving history-and-tradition test that Justice Harlan had set forth in Poe.²³⁴

2. From Lawrence to Obergefell

ADF used history and tradition to describe what its leaders understood to be divisive positions—for example, opposing heightened scrutiny for sex classifications—and to bridge possible divides with members of the Federalist Society and the conservative legal movement. Rather than denouncing sex equality or even feminism, ADF suggested that strict scrutiny for sex classifications would overturn deeply rooted laws recognizing “reasonable, time-honored differences between the sexes.”²³⁵ When it came to efforts to decriminalize same-sex intimacy, expand sex-education curricula, or bolster laws prohibiting same-sex marriage, ADF long framed its work as a fight to stop “homosexuals” from changing the law and using a “battering ram . . . to smash the biblical values on which our country was built.”²³⁶

By the end of the 1990s, these claims became politically toxic—and quite different from the kind of textualist and originalist arguments advanced by the Federalist Society. Polls showed growing tolerance for legalizing same-sex intimacy, and in the 1996 case Romer v. Evans, the Court struck down a Colorado state constitutional amendment for lacking a rational basis and codifying anti-gay animus.²³⁷ An entrenched traditionalism had operated to allow conservative movements to update what had become politically out-of-bounds claims. It also enabled them to frame the demands of the Christian legal movement and antiabortion forces in terms that the Federalist Society could accept.

Conservative Christians again sought to use arguments from history and tradition to create common ground in Lawrence v. Texas, a case involving a challenge to Texas’s sodomy ban.²³⁸ The State of Texas, for example, stressed that the nation had a tradition of “historically prohibiting a wide variety of extramarital sexual conduct.”²³⁹ Lawrence proved a devastating setback for proponents of an entrenched history-and-tradition test. Justice Kennedy’s majority began by casting doubt on the narrative of consistent hostility to homosexuality offered up by Bowers—as leading historians had documented, a focus on same-sex intimacy was relatively recent, as was an understanding of homosexuality as a stable identity.²⁴⁰ But the Lawrence Court suggested that it was the “laws and traditions in the past half century” that were of the “most relevance.”²⁴¹

Lawrence did nothing to decrease social-movement interest in arguments about history and tradition, especially as the fight for same-sex marriage continued. Groups like the National Organization for Marriage (“NOM”), founded in 2007 to preserve a California ban on same-sex marriage, presented their cause as a defense of “traditional marriage.”²⁴² In 2008, when the California Supreme Court held that the state constitution required access to marriage for same-sex couples, Maggie Gallagher, one of NOM’s co-founders, complained that the decision “brushed aside the entire history and meaning of marriage in our tradition.”²⁴³ In 2009, NOM moved its headquarters to Washington, D.C. and repackaged the group’s cause, as the Washington Post explained that year, to argue that “opposing gay marriage does not make them bigots, that the argument should have nothing to do with hate or fear, and everything to do with history and tradition.”²⁴⁴

Arguments about history and tradition also figured centrally in efforts to fortify the alliance between conservative Catholics, evangelical Protestants, and Orthodox Christians, spearheaded by Robert George, the Princeton professor who served as the chairman of NOM.²⁴⁵ George helped to draft and publicize the 2009 Manhattan Declaration, which identified traditional marriage, opposition to abortion, and support for a particular idea of religious liberty as the unifying demands of conservative Christians.²⁴⁶ The declaration, in turn, framed opposite-sex marriage as honored or even required by “Christian tradition, and . . . Western law.”²⁴⁷

History-and-tradition arguments also defined conservative movements’ strategies when a challenge to bans on same-sex marriage reached the Supreme Court in Obergefell v. Hodges.²⁴⁸ Some amicus briefs stressed that there was a history and tradition of allowing states to define marriage as they saw fit.²⁴⁹ Others suggested that only marriage between persons of the opposite sex was deeply rooted in the nation’s history and tradition.²⁵⁰ Obergefell embraced a kind of evolving traditionalism. Justice Kennedy’s majority underscored that “[h]istory and tradition guide and discipline” analysis of the Fourteenth Amendment, “but do not set its outer boundaries.”²⁵¹ What made this longer-term perspective so important, Kennedy said, is that “[t]he nature of injustice is that we may not always see it in our own times.”²⁵² But Obergefell would not usher back in the evolving traditionalism of yore.

An entrenched history-and-tradition test remained a priority for antiabortion lawyers, especially following the confirmations of Justices Gorsuch, Kavanaugh, and Barrett.²⁵³ And then, Dobbs elevated this entrenched species of traditionalism, alongside other key cases from the 2021–2022 and 2022–2023 Terms.²⁵⁴ But the meaning of a history-and-tradition test had, in fact, been a site of contestation for decades before the newly constituted conservative majority declared that “history and tradition” teaches that “what the Fourteenth Amendment means by the term ‘liberty’ . . . does not protect the right to an abortion.”²⁵⁵

III. REMAKING TRADITIONALISM

Recovering this lost approach to history and tradition is significant for three reasons. First, it sheds new light on old puzzles that have beset constitutional interpretation. These include charges of judicial activism and deep-rooted injustice, generality problems, and difficulties in differentiating between the traditionalist method and either “gloss” or “liquidation.” Second, a shared focus on longstanding and widespread practices promises to take the edge off interpretive divisions between the prevailing extremes of originalism and living constitutionalism, especially if looking to the way in which they have evolved over time. Third, distinguishing entrenched from evolving traditionalism provides a constructive way to clarify which rights merit constitutional recognition. The final Section details how these distinct approaches to traditionalism would go about analyzing a number of fundamental rights claims that the Supreme Court has already recognized (e.g., birth control, interracial marriage, medical refusal) as well as others that it hasn’t (e.g., assisted reproduction, aid-in-dying, gender-affirming care).

A. Doctrinal Puzzles

Traditionalism is criticized for being either too manipulable or too stuck in the past. These objections come from opposite directions. One casts this method of interpretation as so unmoored that it invites judicial activism. The other says it is so rigid that it entrenches injustice. The evolving approach to history and tradition proves less vulnerable to both criticisms than the entrenched version of that test. And there are a couple other doctrinal puzzles that evolving traditionalism makes meaningful progress on too. One relates to the levels-of-generality problem in determining the scope of constitutional rights and holdings. The other is about the complexities of distinguishing traditionalism from “gloss” or “liquidation.” The evolving kind of history and tradition isn’t immune to these challenges. But it fares better.

1. Activism and Calcification

The evolving test attracts charges of judicial activism because it doesn’t confine the inquiry to a preset timeframe in the distant past. And if a judge has more time periods to pick from, she has more discretion to pick and choose her favorite practices. But that analysis is still anchored in extra-judicial practices whose roots run deep. There’s no picking and choosing among isolated customs or fleeting fads—let alone freestanding normative principles or cost-benefit analyses. And this methodological point is critical: evolving history and tradition advises looking to the most recent among sufficiently longstanding practices. Accordingly, it offers the judge no wider variation than entrenched traditionalism.

Besides, fixing a traditionalist analysis on some earlier era isn’t determinate. It leaves ample space to exercise judicial discretion. For one, as Justice Amy Coney Barrett asked in the Bruen gun rights case, “How long after ratification may subsequent practice illuminate original public meaning?”²⁵⁶ The absence of any clear answer invites arbitrary line-drawing on either side. Adam Winkler catalogs the ways in which the Bruen “Court says that it is doing history and tradition analysis, but conveniently ignores any history it doesn’t like,” dismissing “all of the historical precedents for heavy restrictions on concealed-carry laws as outliers,” “early English common law as too old,” and “laws that were adopted after the mid-eighteen-hundreds as too young.”²⁵⁷ Joseph Blocher and Reva Siegel give the name “asymmetric updating” to the danger that Second Amendment rights expand to include new kinds of weapons, while the government’s regulatory authority stays frozen in 1791 or 1868.²⁵⁸ Entrenched traditionalism is vulnerable to cherry-picked traditions and badly done history too, while the evolving test can find expression in tangible practices grounded in objective, empirical evidence.

When it comes to the problem of intransigence, entrenched traditionalism is susceptible to injustices that reach further back in our past. All that matters is that a practice was accepted at the relevant ratification era—its animating rationale or subsequent rejection escapes scrutiny.²⁵⁹ So does the way in which tradition is deployed: to uphold a law that’s consistent with longstanding practices, to strike one down because it is at odds with them, or to interpret a provision that was enacted precisely to abolish a persisting evil like slavery. Consider the 2021 case Brnovich v. Democratic National Committee,²⁶⁰ which read into the Voting Rights Act a presumption that any practice is valid that was “standard” when the Act was enacted in 1965, even if it operated to deny black voters the opportunities afforded to others.²⁶¹ Justice Elena Kagan dissented on the ground that the purpose of the statute was “to eradicate then-current discriminatory practices, not to set them in amber.”²⁶²

Obergefell, the 2015 case affirming a right to same-sex marriage, underscores the injustices in an entrenched appeal to traditionalism: “If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied.”²⁶³ Evolving traditionalism combats the reflexive appeal to “what we have always done,” when our past embodies grave wrongs. Longitudinal analysis about historical practices leaves space to recognize the ways in which traditions tend to grow progressively fairer over time. There is no guarantee that “what we have done more recently” ever and always bends toward decency and fairness. It is possible that more recent traditions are not especially more likely to be just. Later generations can certainly make moral mistakes too. What an evolving test enables us to do is avoid reifying the transgressions that we can see clearly when looking back in the rearview mirror, so that at least those we won’t perpetuate indefinitely into the future.

That’s what persuaded the Massachusetts Supreme Judicial Court (the state’s highest) in a 2022 case to grant due process protections to medical aid-in-dying under the state constitution. The Court identified two methods of traditionalism that it referred to as narrow and comprehensive: “a fundamental right may be determined either through a narrow view of this nation’s history and traditions or through a more comprehensive approach, which uses ‘reasoned judgment’ to determine whether a right is fundamental.”²⁶⁴

The Massachusetts high court adopted the “comprehensive” approach whose consideration of “modern precedent alongside history” enabled the majority “to cleanse our substantive due process analysis of the bigotry that too often haunts our history.”²⁶⁵ Social practices occupy a relatively weak place in this “comprehensive” conception of history and tradition. It holds that practices are neither a necessary nor sufficient condition of interpretative meaning. Evolving traditionalism reserves a stronger role for social practices. They give a judge a source of legal authority to cite when she agrees with it but also constrain her when she does not.

2. Levels of Generality

Generality problems pervade constitutional, statutory, and common law.²⁶⁶ They boil down to the description of a law, provision, or case at a lower level of generality or a higher one—in other words, in terms that are either more particular, and so would accordingly apply to a narrower set of future facts or questions, or stated as an abstract matter, which has relevance to a wider range of legal issues.²⁶⁷ This framing can have a profound impact on a legal conclusion. In 1937, legal theorist Jerome Hall put the problem like this: “Upon the level of generality selected for the criteria of likeness or dissimilarity depends the outcome.”²⁶⁸

The generality problem we focus on is the level at which a rights claim is articulated before the court, or in the understanding of its holding. It is a debate that Laurence Tribe and Michael Dorf launched in 1990,²⁶⁹ the year after Justice Antonin Scalia suggested that courts select “the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified.”²⁷⁰ The question is how specifically or generally to identify a “relevant tradition”—for example, as allowing adulterous fathers to interfere with families, or letting genetic parents visit the children they learned of their biological connection to only at some point after their birth.²⁷¹ Marc DeGirolami argues that empirical appeal to the fact of social practices itself might help to rein in the choice of level by limiting the range of plausible answers to those that find expression in practices that are especially pervasive and longstanding.²⁷²

Evolving traditionalism can help to gain traction on the levels-of-generality problem. Take Obergefell. America has long respected the general framing of a liberty interest in two people getting married in cases like Loving v. Virginia, which recognized rights of marriage rather than “interracial” marriage.²⁷³ But the same interest might also be characterized in terms of a more specific framing about same-sex couples specifically. The question is whether two decades of same-sex marriage recognition in a growing minority of states is enough to root a tradition deeply. The answer depends on which practices endure most when the lens of tradition is refracted from the ratification era into more recently longstanding practices. The Obergefell majority reasoned about history not as a limit but as a guide that’s “entrusted to future generations” to protect individual freedom in a manner that evolves “as we learn its meaning.”²⁷⁴

By contrast, the reconstituted Supreme Court majority in Dobbs adopted a low level of generality to define a specific right to abortion, as that practice had been entrenched under nineteenth-century state restrictions.²⁷⁵ An evolving traditionalism that accounted for battles over birth control and medical refusal would have advised a more general right of reproductive freedom or healthcare. Distinguishing entrenched from evolving traditionalism also guards against selectively favoring whichever level of generality suits a preferred outcome: for example, describing the types of “arms” covered by the Second Amendment right at a high level of generality to include weapons unknown to the founding era, while casting gun control regulations at a low level of generality that requires laws which closely resemble past practice.²⁷⁶

3. Gloss and Liquidation

Distinguishing the evolving from entrenched tests for history and tradition also sharpens the differences between traditionalism and similar-but-distinct interpretive methods: gloss and liquidation. Historical gloss traces back to the separation-of-powers landmark Steel Seizure Case,²⁷⁷ specifically to Justice Felix Frankfurter’s concurrence, detailing that permissible sources of presidential power include “the gloss which life has written upon them” through “a systematic, unbroken . . . practice.”²⁷⁸ Gloss is just one data point among others, so relevant practices feature less prominently than they do in traditionalist interpretation, where social practices take center stage.²⁷⁹

Historical gloss more closely resembles evolving history and tradition in its analysis of relevant actions and inactions over time.²⁸⁰ The biggest difference is that gloss considers only government practices.²⁸¹ The history-and-tradition test widens the focus to salient and “systematic” practices by non-state communities too. Beyond legal advocacy, this could include widely shared primary conduct by unorganized groups of individuals, such as the growing use of contraceptives even among Catholics, or cohabitation of the sort cited in Moore.²⁸² By contrast to gloss, evolving traditionalism qualifies a social practice as relevant to recognizing a constitutional right, or declining to recognize it, when lots of people have undertaken or abstained from that practice for a long time.

Liquidation also goes beyond constitutional text to set the scope of indeterminate provisions in light of how political branches, states, or the people apply them after they’re enacted.²⁸³ Federalist No. 37 says liquidation is necessary when and because a newly ratified rule is “more or less obscure and equivocal.”²⁸⁴ This method features elements of both the evolving and entrenched versions of traditionalism. Liquidation is evolving in its openness to amplification by post-ratification practices that boast longevity and adherence. But then it fixes the meaning of that gap in the text through a period of acquiescence to a particular view in a process known as settlement.²⁸⁵

William Baude argues that liquidation tends to be achieved by people of great stature, working at the nerve centers of political power.²⁸⁶ By contrast, traditionalism finds the development of tradition in sometimes small places. And an evolving brand of that test looks for uniformity in the practices that cash out constitutional meaning across space and time. Liquidation also closes off interpretation to the possibility of future revision, without especially worthy justification. Whereas evolving traditionalism counts any change in longstanding social practices as meaningful to rights recognition.

B. Common Ground

The prevailing constitutional theories tend to talk past each other. Originalism and living constitutionalism appeal not only to different eras, but also to disparate values and core commitments.²⁸⁷ It is not that there haven’t been rigorous scholarly efforts to engage the other side.²⁸⁸ And yet these camps now find themselves more polarized than ever. They’re at odds about the Constitution’s meaning in most of the hard cases, that is, whenever the document is vague, silent, or cannot be substantiated with reliable historical context.²⁸⁹ That’s when they part ways for good, for example, about the role of original meaning (or original intent or law or methods). An evolving form of traditionalism holds out hope for bridging this gap, offering interpretive opponents a more conciliatory set of first principles and shared vocabulary.²⁹⁰

Most originalists think the meaning of each constitutional provision was pretty much fixed at the time that provision was adopted. So, it might seem reasonable to think that most would be reluctant to embrace social practices that were entrenched long ago in lieu of ones whose durability and pervasiveness evolved more recently. But there are other originalist commitments too. One is that constitutional practice constrains judicial decision-making. And this would seem to counsel openness to the external restraint that longstanding history and tradition places on this method of interpretation. The promise is more modest than any easy compromise. It is just the chance to bring constitutional antagonists to the same table to engage in meaningful conversation.

The evolving approach to history and tradition can be understood as a particular variant of living constitutionalism, defined as the idea that the Constitution’s authoritative meaning can and should be responsive to changing values absent any formal change to Article V.²⁹¹ Evolving traditionalism anchors itself in the most recent among those lasting social practices that go back at least decades, whereas most forms of living constitutionalism impose no such check on their interpretations that are grounded in changing circumstances and values.

The difference between entrenched traditionalism and originalism is subtler. Solum and Barnett diagnose their resemblance when they ask why Dobbs and Bruen fix the focus of traditionalism on historical evidence about the prevalence of state legislation around the time of constitutional ratification in 1791 or 1868. Their answer invokes originalism: firearms and pregnancy restrictions lend insight into what the public would have understood the Second and Fourteenth Amendments to mean when it comes to gun and abortion rights.²⁹² Solum and Barnett are right to observe that entrenched traditionalism and original public meaning can rely on similar evidence, even often. What distinguishes them, however, is the self-conscious attention each pays either to concrete social practices (traditionalism) or to abstract textual construction (originalism).

As for the entrenched and evolving variations of the history-and-tradition test, each focuses on different eras, either around the time of constitutional ratification or else extending for wider windows before and after that era. But both share minimal agreement on the interpretive importance of especially meaningful social practices.²⁹³ Those pervasive and entrenched practices are their North Star and point of departure. This first principle is what Justice Harlan described in his Poe dissent as the “regard to what history teaches are the traditions from which [this country] developed as well as the traditions from which it broke.”²⁹⁴ Compared with the entrenched approach to history and tradition, evolving traditionalism boasts the advantage of not forever preserving status inequalities and other past injustices, even if it might still risk ratifying contemporary evils.²⁹⁵

1. Shared Vocabulary

Traditionalism supplies a shared vocabulary that replaces abstract moral principles or contested balancing tests with tangible practices as the basis of constitutional meaning. These conversations about social practices can be mediated most effectively when tradition is treated as “a living thing,” in Harlan’s words.²⁹⁶ Practices that stand the test of time can form a shared way of talking about these questions. Analyzing the entire historical spectrum of tradition from ratification to present day moves litigants and courts into a common arena by eliminating temporal bounds and inviting inquiry into why practices came into being and stuck around, thereby shoring up their staying power. Even the most enduring practices may be subject to disagreement about their social meaning or moral value.²⁹⁷ And yet, as Harlan put it, “a decision which builds on what has survived is likely to be sound.”²⁹⁸

Entrenched history-and-tradition tests lack clear answers to the question about just how far back to go or even reach ahead up to the present. This temporal uncertainty emerges in the trilogy itself. In Dobbs, the majority’s historical analysis extends from thirteenth-century British common law until Roe was decided on January 22, 1973.²⁹⁹ Whereas in Bruen, the Court focuses on eighteenth- and nineteenth-century practices,³⁰⁰ in Kennedy, the Court looks instead from the Constitution’s ratification through that of the Fourteenth Amendment.³⁰¹ It is not just the trilogy, either. In McDonald v. City of Chicago and Timbs v. Indiana—two cases that Dobbs cited as examples of the history-and-tradition analysis³⁰²—the time periods for analysis also differed: McDonald covered ratification-era common law until the early nineteenth century,³⁰³ while the examination of relevant social practices in Timbs started with British common law and went not only up to the ratification of the Fourteenth Amendment but all way through to the present.³⁰⁴

2. Constitutional Trimming

An evolving history-and-tradition test starts from the first principle of enduring social practices, from before ratification until the present. Its shared vocabulary of tangible actions and inactions seeks to split the difference between the polarized margins of original meaning and living constitutionalism.

Evolving traditionalism satisfies some (albeit not all) of the considerations that move originalists to be originalists, and that attracts living constitutionalists to living constitutionalism. For originalists, traditionalism curbs judicial discretion by appealing to the longstanding social practices of politically accountable actors or the people they represent. It satisfies the popular sovereignty motivations of originalism through finding expression of the people’s will in diffuse practices over time. Meanwhile, living constitutionalists will find much to like in how evolving history-and-tradition isn’t rigidly fixed to meanings from long-ago eras very different from our own—and how it accedes to social practices that have embedded more recently based on the ethical understandings those practices reflect.

Cass Sunstein casts traditionalist interpretation as forging a constitutional compromise that demands concessions from both originalists and living constitutionalists, an example of what he calls “trimming.”³⁰⁵

Confronted with a disagreement between themselves and their critics, trimmers might conclude not that the original understanding is determinative, but that it is entitled to consideration, and that when precedents do not cut the other way, originalism should be followed. For this reason, some trimmers might be inclined to accept a form of “soft originalism,” giving weight to the original understanding without being bound by it.³⁰⁶

Shedding the least compatible of this ideological baggage can facilitate more discursive engagement on a meaningful common ground. Steering this middle course can be seen as a Goldilocks kind of exercise. Nobody wants to be entirely rigid or entirely fluid. Being too rigid makes you stiff, intransigent, and uncompromising, whereas being too fluid leaves you unmoored, floating, and aimless. DeGirolami argues that traditionalist methodology habituates judges to strike the right balance by thinking “in preservationist and custodial terms, asking them to extend and renew long-lived practices in an ongoing argument about the political virtues they serve.”³⁰⁷ An evolving kind of history and tradition holds particular promise to mediate between the extremes of originalism and living constitutionalism.

C. Remaking Rights

Beyond theoretical debates over constitutional jurisprudence, distinguishing evolving from entrenched traditionalism impacts the practical recognition of fundamental rights in profound and sometimes surprising ways. Fidelity to entrenched traditionalism would call into question rights that are clearly established and rarely contested—medical refusal, interracial marriage, and birth control. On the other hand, evolving traditionalism would not necessarily recognize new rights like medical aid-in-dying, assisted reproduction, and gender-affirming care.

That more dynamic approach also invites the possibility of an evolving right to treatments that the medical profession recognizes as standard-of-care, such as abortion, birth control, in vitro fertilization (“IVF”), and honoring advance directives, including for people who are pregnant when they fall into an irreversible coma.³⁰⁸

An important caveat is in order: the ultimate outcomes of an evolving history-and-tradition test will of course remain complicated and contested. And limited space here doesn’t permit working out definitive answers, especially in contexts as hard as these. The conclusions in this final Section are accordingly preliminary and tentative. The goal is simply to spell out the plausible operation of evolving traditionalism to give a sense of how this interpretive method would apply in practice. We start with the trilogy of Dobbs, Bruen, and Kennedy.

1. Abortion, Guns, and God

Dobbs concludes that “a right to abortion is not deeply rooted in the Nation’s history and traditions,” noting that, by the late-nineteenth century, thirty states “prohibited abortion at all stages except to save the life of the mother.”³⁰⁹ But most historians agree that abortion was in fact legal and common for most of American history, at least in the early stages of pregnancy, while half of the states that Dobbs appealed to did not make abortion a crime at all, let alone one that was prosecuted.³¹⁰ Selective history aside, Dobbs doesn’t reckon with the salient circumstance that, during the civil war era, women were deprived of now-uncontroversial freedoms that range from voting to property ownership.³¹¹ A plurality had put it plainly in the Frontiero pregnancy discrimination case that was decided the same year as Roe: “There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination.”³¹²

An evolving traditionalism that extends beyond the age of coverture and disenfranchisement could find ample evidence of acquiescence in abortion. The Dobbs majority summarily dismisses the notion that even expanding the lens by another century to when Roe was decided in 1973 would provide social-practice support for a right to abortion. But the liberalization of abortion laws over that period makes it confusing to see how that pre-1973 state of affairs would not support a right to abortion. Nor does the majority even mention the fact of abortion practices that took place after 1973. One reason that Dobbs may have discounted post-1973 practices is that the Court’s intervention in Roe scrambled the signal, making it hard to read them off the public’s will. But the majority in Dobbs doesn’t say, or try to justify this move, beyond appealing to the incomplete history of traditionalism it misleadingly ascribes to Glucksberg.

On Bruen’s Second Amendment traditionalism too, the “definition of ‘arms’ is fixed according to its historical understanding,” yet “covers modern instruments that facilitate armed self-defense.”³¹³ Bruen looks into the nineteenth century, too, but dates the relevant firearm history back to the right of self-defense in the 1689 English Bill of Rights.³¹⁴ Beyond the right’s historic ties to state militias is the longstanding prevalence of trap-gun bans that reserved self-defense to one’s person—state legislation did not protect the use of firearms to defend one’s home or property.³¹⁵ The fixed-in-time account of traditionalism makes much of the gunpowder laws from the late-eighteenth century.³¹⁶

Only the evolving version of history and tradition can account for more recent kinds of gun control regulations. Consider the safe-storage laws enacted in the 1980s, designed to head off pervasive accidental gun deaths, and mass shootings or suicides by minors.³¹⁷ Yet, these are precisely the kinds of social practices that the entrenched traditionalism of Bruen closes its eyes to. There is a long history and tradition supporting Second Amendment rights. But lots of gun control measures that weren’t around in the nineteenth century have become extremely common for much of the twentieth, and not seriously contested until very recently.

In Kennedy, the Establishment Clause case, the Supreme Court again teaches that rights “must be interpreted by reference to historical practices . . . [that] faithfully reflec[t] the understanding of the Founding Fathers.”³¹⁸ Legislative prayers, school prayers, and Sunday observance laws are instructive.³¹⁹ Entrenched traditionalism finds considerable state intervention with religion in all three.³²⁰ There’s the revolutionary-era tradition of opening legislative sessions with prayers, dating back to the First Congress that hired a pastor to deliver them.³²¹ Then there are nineteenth-century norms of daily prayers and religious readings in public schools, accepted as a symbol of patriotic values and moral guidance to preserve a unified and peaceful society.³²² Also, Sunday closing laws were incorporated from the English common law during America’s founding for the purpose of observing Christian faith and facilitating church attendance.³²³

An evolving traditionalism might look very different. Deferring legislative prayers to outside clergy invites less risk of proselytizing or subtle coercion than the newer practice that has divided courts involving prayers led by lawmakers or other officials themselves.³²⁴ Public school prayer itself was held to violate the First Amendment in the 1962 landmark case of Engel v. Vitale.³²⁵ And Sunday closing laws have evolved to replace a religious purpose with a secular one to provide workers with a collective day of rest.³²⁶ Under an entrenched approach to history and tradition, ratification-era social practices deeply root all kinds of government involvement with religion. Only evolving traditionalism provides a determinate basis for rejecting such church/state entanglements.

2. Medical Refusal and Aid-in-Dying

The entrenched history-and-tradition test likely risks ruling out the uncontroversial right to medical refusal, while an evolving approach might not warrant recognition of aid-in-dying. In the 1989 Cruzan case, the Supreme Court recognized the right of competent persons to refuse unwanted medical interventions that extends to the denial of life-sustaining treatment.³²⁷ Cruzan itself appeals to the longstanding embrace of medical refusal in extrajudicial practices that include the common law tort principles governing informed consent and battery, state court landmarks, and state statutory law about vaccines, prisoners, children, and people with mental illness.³²⁸

Despite its rich lineage, the right to refuse life-sustaining treatment would fare poorly under the entrenched history-and-tradition test. When the Fourteenth Amendment was ratified in 1868, there were no ventilators or feeding tubes. The legal doctrine of informed consent itself wasn’t even invented until the twentieth century.³²⁹ Only a general freedom from nonconsensual touch was alive in the common law tort of battery. Neither would a right to assisted suicide be possible under an entrenched history-and-tradition test. It might not be under an evolving test either, at least not yet. The Model Penal Code barred assisted suicide well into the twentieth century.³³⁰ But the landscape has shifted in recent decades. Ten states have some form of legalized assisted suicide, whether legislatively or by voter initiative.³³¹

The scope of these practices remains partial and contested for now, even under the evolving test for history and tradition. But the pendulum is swinging. Evolving traditionalism would not have protected a right to assisted suicide in 1997, consistent with Glucksberg’s decision not to recognize that right. But if more and more states continue to codify a right to aid-in-dying under limited circumstances, that more adaptable history-and-tradition test could well protect that right some decades hence. That makes clear a significant implication of evolving traditionalism: depending on how prevailing social practices take shape, a future court applying this kind of history-and-tradition test could protect certain rights that a court today (or in the past) would and should say lack protection right now.

3. Birth Control, Sexual Intimacy, and Marriage

Justice Clarence Thomas, concurring in Dobbs, advocated “reconsider[ing] all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”³³² This Section considers the entrenched-versus-evolving implications of each in turn, starting with the Court’s 1965 decision in Griswold to affirm a privacy right to birth control.³³³ That right would readily be vindicated under the evolving history-and-tradition test. By the 1930s, the contraceptive movement was large and visible, with birth control clinics opened across the country in a rebranding of what had once been deemed an immoral device now labeled as standard medicine.³³⁴ Contraceptives were widely recognized as essential healthcare and a social norm, even before Griswold and Eisenstadt v. Baird legalized birth control nationwide.³³⁵ But the birth control right may be unlikely to find solicitude under the entrenched approach to history and tradition. As the Dobbs dissent noted, “the American legal landscape in the decades after the Civil War was littered with bans on contraceptive devices.”³³⁶

A right to same-sex intimacy finds ample support under an evolving account of history and tradition, before such rights received recognition in Lawrence.³³⁷ In the era after World War II, dozens of activist groups formed to support sexual minorities.³³⁸ By 1955, the American Law Institute’s Model Penal Code advocated repeal of the sodomy laws.³³⁹ And in 1969, the Stonewall uprising inspired the formation of more than a thousand gay rights organizations nationwide, including the Human Rights Campaign, the Gay Liberation Front, and the Gay and Lesbian Alliance Against Defamation.³⁴⁰ The gay rights movement grew stronger still after Bowers.³⁴¹ In the 1990s and 2000s, state courts struck down several anti-sodomy laws under the equal protection clauses of state constitutions,³⁴² and the handful of remaining bans were rarely enforced.³⁴³

Entrenched traditionalism may look less kindly on the same-sex marriage right that Obergefell recognized under the Equal Protection Clause of the Fourteenth Amendment.³⁴⁴ In the era around the Civil War, sexual orientation was not a suspect class, and marriage was understood as being less about love and companionship than about raising the kids you had, something reserved to a man and woman.³⁴⁵ An evolving history and tradition, by contrast, would account for recognition of same-sex marriage in states like Vermont and Massachusetts by the early 2000s,³⁴⁶ and at least the benefits of civil unions and domestic partnerships in thirty other states in the following decade.³⁴⁷

Slavery and racial subordination are among America’s longest-standing “histories and traditions.” The constitutional reset that was the Reconstruction Amendments left pervasive redlining and institutional segregation, which extended to laws forbidding people of different races from getting married.³⁴⁸ The Supreme Court held that anti-miscegenation laws violated equal protection under the law in the 1967 case of Loving v. Virginia.³⁴⁹

An entrenched account of history and tradition might turn up conflicting evidence.³⁵⁰ On the one hand, anti-miscegenation statutes were on the books at some point in thirty-eight states by the end of the nineteenth century, and in twenty-nine still by 1951.³⁵¹ On the other hand, some states had begun to repeal their interracial marriage bans even before the Fourteenth Amendment, while others rejected proposals to write miscegenation bans into their state constitutions.³⁵² Only an evolving approach could account for the fourteen states that had repealed their prohibitions on interracial marriage in the decade or so before Loving—and the fact that sixteen bans remained up until that judgment, including Alabama’s until 2000.³⁵³

4. Fetal Rights and Assisted Reproduction

For the pro-life movement, the next major campaign after the demise of Roe will be a fight for fetal personhood—recognition that a fetal person has rights to due process and equal protection—and quite likely, a conclusion that liberal abortion laws are unconstitutional.³⁵⁴ Scholars from John Finnis to Josh Craddock argue that, as a matter of original public meaning, the word “person” in the Fourteenth Amendment applies from the moment of fertilization.³⁵⁵ Personhood claims have also captured headlines in contexts beyond abortion. An Alabama case in early 2024 involved several couples who sued over the wrongful destruction of embryos they had created during fertility treatment in the hopes of using them to have children.³⁵⁶ In LePage v. Center for Reproductive Medicine, the couples pursued a number of legal theories, including a negligence claim against the fertility clinic. The Alabama Supreme Court vindicated their action for wrongful death on the ground that the state’s Wrongful Death of a Minor Act applied to “all unborn children, regardless of their location.”³⁵⁷

LePage had the effect of pausing IVF in the state, as providers and intermediaries involved in the practice feared that even inadvertently destroying an embryo could lead to serious legal liability.³⁵⁸ The decision did not resolve the constitutional status of fetal personhood, even for the purpose of state law. But Chief Justice Tom Clark gestured toward a possible broader ruling in a concurring opinion, writing that “all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.”³⁵⁹ LePage made clear that recognizing personhood rights for the unborn would have implicated not just abortion but IVF as well. Conservative and progressive scholars have doubted originalist arguments for unborn personhood under the Fourteenth Amendment.³⁶⁰ At any rate, history and tradition may offer a more straightforward path to fetal personhood. Still, personhood proponents would struggle under an entrenched history-and-tradition test. For centuries, colonies, territories, and states allowed abortion before quickening, and British legal authorities dating back to Blackstone conferred the status of “natural persons” only after “an infant is able to stir in the mother’s womb.”³⁶¹ Even in the nineteenth century, when antiabortion doctors mobilized widely to criminalize abortion, no similar movement developed on behalf of fetal rights, whether at common law or under the Constitution.³⁶²

Surprisingly, an evolving history-and-tradition test would look kindlier on claims to fetal personhood. The 1960s is when a robust fetal rights movement began to take shape and forge a powerful political partnership with the Republican Party.³⁶³ A commitment to fetal rights, once dismissed as Catholic dogma, now holds sway among conservative evangelicals, Mormons, and some orthodox Jews.³⁶⁴ Support for fetal personhood has room to grow on the political right. Fetal rights still find too little support in social practices today, when polls show that the smallest fraction of the population approves of abortion bans early in pregnancy.³⁶⁵ So an evolving history-and-tradition test would not yet give champions of unborn personhood what they want. But history and tradition is their best bet in future constitutional struggles.

What of a right to assisted reproduction? IVF combines egg and sperm in a laboratory before testing the resulting embryo by implanting it into someone who can carry it to term. It is the most effective way to have biologically related kids for many single people, cancer patients, and infertile or same-sex couples.³⁶⁶ Many fear that this social practice will be forbidden if the law recognizes fetal personhood. In the nineteenth century, the notion of conceiving a child apart from sexual intercourse was far-fetched, let alone in some way that would make it possible to pick and choose certain aspects of offspring makeup before birth.³⁶⁷ IVF wasn’t invented until the late 1970s, and a right to access it fails under entrenched traditionalism.³⁶⁸ As early as 1897, the Catholic Church took a stand against any form of “artificial insemination.”³⁶⁹ Most physicians remained hostile to the idea of assisted reproduction during that time, while courts and commentators compared any use of donor sperm to adultery.³⁷⁰ A right to these and other forms of assisted reproduction would accordingly find next to no support under an entrenched form of traditionalism.

A right to assisted reproduction stands a better but still outside chance under the evolving test. Donor insemination has been relatively common since the 1930s and 1940s.³⁷¹ By 2018, a third of Americans either know someone who has used assisted reproductive technologies or have used it themselves.³⁷² Twenty-one states now require insurance coverage for infertility treatment, including fifteen that address IVF specifically.³⁷³ Over fifty percent of large employers (those with more than 20,000 employees) covered IVF in 2022, compared with only thirty-six percent in 2015.³⁷⁴ Still, a tradition favoring IVF access remains contested: federal legislation to enhance IVF access has stalled,³⁷⁵ and many patients live in states without IVF coverage or depend on state or federal Medicaid, which does not cover assisted reproductive technologies.³⁷⁶ Some antiabortion groups and their lawmakers in state legislatures frame IVF as lawless and immoral and have ambitions to restrict or ban it—an ambition that has become even clearer after LePage.³⁷⁷ A half-century of evidence doesn’t yet support a right to access IVF under the evolving-tradition test. But that may be changing.

5. Gender-Affirming Care and Conversion Therapy

The two history-and-tradition tests also have surprising implications for other due process claims. Two claims making headlines in the wake of state bans are conversion therapy and gender-affirming care. Parents have asserted due process rights to each form of medical treatment on behalf of their minor children—designed either to convert those youths’ sexual orientation from gay to straight, or to temporarily block puberty-related changes to breasts, muscle, and voice to buy time for adolescents who consistently identify as transgender to consider more permanent changes later in adulthood.³⁷⁸ The Supreme Court has held that the “interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests.”³⁷⁹ But the Court has also made clear that clinical decisions on their kids’ behalf must be weighed against the State’s own concern for the health and wellbeing of its vulnerable citizens.³⁸⁰ That leaves uncertain any rights claims by parents to access treatments for their children that the government has forbidden.³⁸¹

Entrenched traditionalism might look more favorably on parental rights to conversion therapy, notwithstanding overwhelming evidence that it harms the very children it purports to help. Conversion therapy traces to the Civil War era, when the medical profession widely regarded homosexuality as “either a criminal act or a medical problem, or both,”³⁸² and authorized parental attempts to “cure” it through invasive measures like lobotomy and castration that have since given way to hypnosis and talk therapy.³⁸³ Parental claims to gender-affirming treatments stand little chance under the entrenched history-and-tradition test. For one, hormones like estrogen and testosterone weren’t discovered until the 1920s and 1930s.³⁸⁴ That puberty blockers and cross-hormone therapy weren’t around when the Fourteenth Amendment was ratified is all the Sixth and Eleventh Circuit needed to conclude that “the use of these medications in general—let alone for children—almost certainly is not ‘deeply rooted’ in our nation’s history and tradition.”³⁸⁵

Under an evolving test, parental claims to gender-affirming care could stand an outside chance, while conversion therapy does not. Conversion therapy peaked in popularity in the 1960s when electroconvulsive therapy became increasingly common and the American Psychiatric Association briefly defined homosexuality as a mental disorder from 1968 to 1973.³⁸⁶ But healthcare organizations have roundly rejected conversion therapy over the ensuing decades as clinical evidence made clear that it is more likely to harm than benefit those distressed by a conflict between their sexual desires and their faith or family—especially if it reflects a disparaging view of same-sex attraction that inspires self-hatred.³⁸⁷ About half of the fifty states now ban the practice.³⁸⁸

The evolution of hormone therapy to affirm gender in minors has taken a different path.³⁸⁹ Puberty-blocking injections and implants emerged with programs in the Netherlands in the early 2000s.³⁹⁰ In 2009, the Endocrine Society published guidelines recommending the use of puberty blockers for adolescents whose distress, experienced from persistently identifying with a gender that doesn’t match their bodies’ sex-based traits, is not alleviated through psychosocial counseling and behavioral support.³⁹¹ By 2014, thirty-two clinics in the United States offered this treatment alongside parental support, with that number rising to about sixty by 2022.³⁹² Until 2023, gender affirming care was routinely provided to qualifying minors in forty-six states.³⁹³ But the months since have now presented a serious challenge for any rights claims under the evolving history-and-tradition test: the flurry of recent bans have left gender-affirming care legal in only thirty-one states.³⁹⁴

CONCLUSION

In declaring that the Supreme Court has “long asked whether the right is ‘deeply rooted in [our] history and tradition,” Justice Alito wrote that a history-and-tradition test emerged to constrain a more freewheeling living constitutionalism.³⁹⁵ His story takes off the stage entirely the heady days of substantive due process in the 1960s and 1970s that helped to forge the Roe decision. A history-and-tradition test, in turn, emerged in the 1980s and 1990s as the Justices retreated from the excesses of earlier decades. As Alito tells it, Glucksberg required the Justices to “exercise the utmost care whenever . . . asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.”³⁹⁶ In other areas of doctrine, the Court’s approach to history and tradition is different, but the common denominator is the same: to count, a tradition must be rooted in the ratification era. From there, it is timeless and unchanging.

This origin story is compelling. The problem is that it is not true: neither where the test came from nor what it is. For decades before Glucksberg, social movement contestation over the role of history and tradition had wrestled with the very meaning of that test. Progressive movements, at times, contended that the nation’s traditions evolved to include those once left out of old status hierarchies, and that any legitimate understanding of constitutional tradition included the present and recent past as much as it did Blackstone. Some of the Justices, in turn, came to define an evolving history-and-tradition test as a middle ground between a true living constitutionalism and a hidebound constitutionalism anchored only to one point in an imagined past.

Conservative movements, in turn, forged their own ideas of a history-and-tradition test, insisting that such an approach had always properly honored only traditions that reached back to the time of the nation’s founding—or before. Members of the conservative legal movement found this history-and-tradition test an effective way to bridge divides within an emerging coalition on the right; a way to reiterate shared commitments to judicial restraint while codifying deeply held beliefs and values on subjects from religious freedom to abortion.

Understanding the Court’s contemporary uses of history and tradition as the byproduct of social movement conflict reveals the other normative commitments that reliance on history and tradition disguises. Seeing it in historical context also calls into question the precedential pedigree the Dobbs Court claims for both its decision and its vision of traditionalism that overlooks a very different version of that test. And that one we have forgotten has profound implications for remaking the controversies of our time.

98 S. Cal. L. Rev. 1

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Dov Fox*

* Herzog Research Professor of Law, University of San Diego School of Law.

Mary Ziegler†

† Martin Luther King Jr. Professor of Law, University of California, Davis School of Law. Thanks for insights to Vic Amar, Niko Bowie, Joseph Blocher, Jud Campbell, Marc DeGirolami, Murray Dry, Sherif Girgis, Felipe Jiménez, Sally Gordon, Laura Kalman, Ken Kersch, Mike Ramsey, Eric Rueben, Stephen Sachs, Neil Siegel, Reva Siegel, and Aaron Tang. We are grateful to Sasha Nuñez and Liz Parker for editing support. Caroline Bulger, Jenna Gatto, Alyssa Guthrie, Emmanuela Kubari, Bailey Neal, Emily Serleth, and Joseph Wilhardt provided wonderful research assistance. We are grateful for expert edits and cite-checking to Charles Murphy, Jacob Karlin, and the staff of the Southern California Law Review.