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Abstract
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The Court has recently adopted history-and-tradition tests in several key areas of constitutional law. To determine the constitutionality of a gun regulation, courts must now look back to the Founding Era, to determine whether the regulation is consistent with historical forms of gun regulation. The Court recently overturned Roe v. Wade after finding that the right to abortion is not “deeply rooted in the Nation’s history and traditions.” Proponents argue that this tradition-oriented approach helps to ensure judges enforce the Constitution as it was written and ratified rather than interpreting the document in ways that reflect their own twenty-first-century values. Critics of the history-and-tradition approach used to overturn Roe have argued that it is far more subjective than proponents suggest: there is considerable judgment involved in interpreting the historical record and deciding how to define the relevant historical tradition.
This Essay builds on the critical literature by identifying a key feature of the Court’s new history-and-tradition test for substantive due process cases that has not yet attracted significant attention: outcomes in these cases delivered by this test are often actually, or additionally, driven by hidden, contemporary judgments about equality. The Court portrays history-and-tradition as a “one-step” test that requires judges to determine only whether a right or regulation is deeply rooted in history. But there is always a second (often unarticulated) step in history-and-tradition cases. After courts identify the relevant tradition, they must determine whether that tradition is compatible with current understandings of equality. Courts cannot simply identify how Americans regulated in the past and use that history to determine the permissibility of regulation today: too many eighteenth- and nineteenth-century regulatory traditions would now be viewed as abhorrent to adhere to the results of the history-and-tradition test consistently, without considering the compatibility of these results with modern notions of equality.
This gives rise to a nested set of problems. To admit that highly contested, modern, value-laden conceptions of equality often drive the outcome of substantive due process cases using a history-and-tradition approach would undermine the purported neutrality of this approach. Thus, judges in these history-and-tradition cases often conduct the equality analysis sub rosa and use various doctrinal mechanisms—such as ratcheting up or down the level of generality at which they define the relevant historical tradition—to bring the outcomes of these cases in line with their own understandings of equality. But making equality determinations in the dark frees judges from accountability for their decisions. It enables them to defer to past practice in cases involving groups and rights they disfavor, but to break from past practice in cases involving groups and rights they favor—while insisting in both contexts that they’re simply following the dictates of history. There is an even deeper problem: the Court is now making significant (generally unacknowledged) equality determinations in these history-and-tradition cases that in some instances substantially undermine contemporary equal protection doctrine. It can be hard to detect these threats to equality law because the Court often makes these determinations in cases in which the equality component is hidden. If this practice continues, it is possible the Court could dismantle a substantial amount of contemporary equality law in history-and-tradition cases without ever formally overruling a single equal protection decision.
https://www.yalelawjournal.org/forum/history-and-traditions-equality-problem
Language: en |