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How the Supreme Court uses ‘tradition’ to take away the rights of Americans

In a recent New York Times essay, Marc De Girolami, a law professor at the Catholic University of America, offered a novel account of the jurisprudence of the contemporary Supreme Court: Its unifying theme is “that the meaning and law of the Constitution is often to be determined as much by enduring political and cultural practices as by the original meaning of its words.” The court “has relied on traditionalism to good effect for many decades,” making our laws “respectful of the shared values of Americans over time and throughout the country.”

This is a clever but perverse story that gets matters exactly backward. Since Donald Trump’s three appointments, the Supreme Court has become a major force in American politics. The distinguishing characteristic of today’s court is its seeming indifference to what ordinary citizens care about.

De Girolami is right that the court talked a lot about tradition when it invalidated modern restrictions on gun possession, when it eliminated the right to abortion and when it permitted a high school football coach to publicly pray in midfield after a game. All of these, he thinks, reflect a noble impulse: “We admire and want to unite ourselves with ways of being and of doing that have endured for centuries before we were born and that we hope will endure long after we are gone.”

But he doesn’t seem to notice the longstanding customs that the court’s recent work jeopardizes. De Girolami writes that both originalism and living constitutionalism reflect the beliefs of “elite actors working at the nerve centers of legal and political power,” and “depend on the preferences and findings of the legal professional class.” Traditionalism, on the other hand, “looks to the ordinary practices of the American people across time and throughout the country.”

Here are some ordinary practices that Americans once took for granted. Women presumed that they could control their fertility, with abortion as a backup if contraception failed. Religious minorities thought they could send their children to public school without having a dominant faith imposed upon them. I miss the days when America was not awash in guns and school shootings were unheard of. (I’m here summarizing my longer critique of De Girolami.)

De Girolami also neglects to consider that, in each of these cases, the court dishonestly manipulated the history it purported to rely on, each time ignoring briefs by historians that attempted vainly to educate the judges. (The dishonesty is nicely anatomized in Jack Balkin’s important new book, “Memory and Authority: The Uses of History in Constitutional Interpretation.”)

The basic problem is that tradition does not come in packaged units. Any invocation of tradition will select some aspects of the past, in a way constrained only by the writer’s inventiveness. In these cases, “tradition” is so malleable that it has no independent capacity to influence the outcome. There is a method, but it consists in the deployment of traditionalist rhetoric to clear away obstacles to the destination that the justices desire to reach.

Consider the reasoning of New York State Rifle & Pistol Association v. Bruen, which holds that gun regulations are void unless government can “identify a well-established and representative historical analogue.” The court declared that when a law addresses a “general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment.” The evidentiary inference is beyond fallacious. It is absurd.

At any given time, an infinite number of laws are not enacted. The question of why they are not enacted is an incoherent one. Just as the number of non-enacted laws is infinite, so is the number of reasons why the legislature decides not to enact them, starting with the obvious possibility that no one thought of it. Congress has never required that the Capitol building be painted with big red polka dots. This is not evidence that it thought such a decorative choice would be unconstitutional.

But the court now elevates gun rights to a level previously unknown, giving, for example, domestic abusers a presumptive right to own as many guns as they want — in the name of tradition! The tree of liberty must be refreshed from time to time with the blood of kindergarteners. Or something like that.

Dobbs v. Jackson Women’s Health, which took away the right to abortion, can’t be defended as respecting people’s expectations either. Emphasizing a history of prohibitions before Roe v. Wade declared that right in 1973, it nullifies the rights of persons here and now. And it misrepresents that history, claiming that abortion was unlawful in common law. In fact, there was no prohibition before “quickening,” when the woman can feel the fetus moving. That’s about 16 to 20 weeks into pregnancy, and most abortions are performed before that.

When Dobbs was decided, all American women of childbearing age had grown up in a world in which they had the right to control their fertility. That tradition is now swept away.

This isn’t conservative. It doesn’t respect Americans’ shared values. It regards with un-Burkean contempt the actual people who are alive today, despising them for falling away from supposed traditions that never existed in the first place.

Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed” (St. Martin’s Press). Follow him @AndrewKoppelman.

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