Traditionalizing Everything
Document Type
Book Review
Publication Title
Law & Liberty
Publication Date
5-6-2024
Abstract
(Excerpt)
History and tradition are having a moment in American constitutional law. In recent landmark cases, the Supreme Court has looked to history and tradition as guides to construing the meaning of the Constitution. For example, in Kennedy v. Bremerton School District, the justices ruled that the Establishment Clause “must be interpreted by ‘reference to historical practices and understandings.’” Practices consistent with American tradition, like the non-coercive prayers a public school football coach offered in Kennedy, do not violate the Clause. Similarly, in the Dobbs case that held that the Constitution does not confer a right to abortion, the justices maintained that an “unbroken tradition of prohibiting abortion” had existed in the United States right up until Roe v. Wade in 1973. One could give other examples of the Roberts Court’s use of history and tradition, in areas like gun rights, trial procedure, and federal jurisdiction.
The Court is working out exactly what the history-and-tradition test entails and there are many questions. Jack Balkin’s new book, Memory and Authority: The Uses of History in Constitutional Interpretation, thus comes at an opportune time. Balkin, the Knight Professor of Constitutional Law and the First Amendment at Yale Law School, has two goals: first, to describe how lawyers and judges use history and tradition in practice and, second, to argue how lawyers and judges should use them. In the first, he succeeds; in the second, not so much. Balkin correctly observes that what we call tradition is often constructed and contested, a matter of judgment on which people differ. His understanding of tradition is at times so expansive, though, that one wonders whether he is talking about tradition at all.
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