Are “History and Tradition” Reliable Guides on Law and Policy?
Originally published 6/26/24 at DavidNewhoff.com
On June 13, the Supreme Court unanimously held in Vidal v. Elster that the “names clause” in the trademark law (the Lanham Act) does not violate the speech right. Then, on June 21, the Court held (except Justice Thomas) in U.S. v Rahimi that the federal law denying firearm ownership to alleged domestic abusers is constitutional. One thing these decisions have in common is their discussions about “history and tradition” as guides to jurisprudence. In fact, what first caught my attention on this subject was a story in Bloomberg Law stating that the trademark case “turned into a proxy fight over the justices’ methodology, with nods to hotter-button issues such as firearms and abortion.”
In Vidal, the Court generally agreed that, as a speech consideration, trademark is inherently an analysis of content but also generally agreed that the government rule barring the registration of persons’ names (without permission) is viewpoint neutral. But what is significant about the unanimous judgment is the division among the justices about the “history and tradition” reasoning applied. On that subject, the majority opinion written by Justice Thomas was sharply criticized by concurring opinions written by Justices Barrett and Sotomayor.
Justice Thomas determined that “history and tradition” were a sufficient basis to rule in the case because, in general, the principles of trademark law have a long history of coinciding with the First Amendment—from its common law antecedents through the various iterations of federal law. But Justices Barrett and Sotomayor countered that the opinion’s “history and tradition” inquiry was inadequate for the Court to articulate a legal standard upon which to issue its ruling. “Relying exclusively on history and tradition may seem like a way of avoiding judge-made tests. But a rule rendering tradition dispositive is itself a judge-made test,” writes Justice Barrett. Agreed.
History and tradition are not without value, at least as starting points for debate or legal inquiry, but they can be fickle guides, as likely to foster capriciousness in law as ideology, religion, or any other bias. In addition to the opportunity for a jurist or elected official to cite history selectively or inaccurately, the majority opinion in Vidal shows that presenting the sheer weight of a litany may do little more than validate that tautology known as Because that’s how we’ve always done it. Again, Justice Barrett writes:
First, the Court’s evidence, consisting of loosely related cases from the late-19th and early-20th centuries, does not establish a historical analogue for the names clause. Second, the Court never explains why hunting for historical forebears on a restriction-by-restriction basis is the right way to analyze the constitutional question. I would adopt a standard, grounded in both trademark law and First Amendment precedent, that reflects the relationship between content-based trademark registration restrictions and free speech.
Accompanying this critique, Justice Sotomayor writes…
… this back-and-forth highlights the indeterminacy of the Court’s history-and-tradition inquiry, which one might aptly describe as the equivalent of entering a crowded cocktail party and looking over everyone’s heads to find your friends.
[The] majority has drawn conclusive inferences from its historical evidence, all without any guidance from the litigants or the court below. That stark departure from settled principles of party presentation and adversarial testing in favor of in-chambers historical research by non historians raises more questions than answers.
Sometimes, justice and common sense demand breaking with history and tradition—assuming the relevant history is accurately described in the first place. The Bloomberg article’s observation that Vidal has implications for issues like abortion and gun control is noteworthy because these are two subjects where “history and tradition” have misguided the Court’s reasoning in my view. On abortion, I would argue that history, even where it is accurately stated, is inaptly applied in both Roe and Dobbs, whereas on guns, the jurisprudence since Heller (2008) cites “history and tradition” that is invented out of whole cloth.
History Misstated on Guns
Although the recent decision in Rahimi upheld a common-sense law, its reiteration of “history and tradition,” citing to Heller and Bruen (2022), is frustratingly ahistorical. That Bruen effectively finds that contemporary gun regulations must be consistent with the nation’s “history and tradition” of firearm ownership since the founding period would be a barely tolerable fallacy if the history cited were remotely correct. The underlying notion that any constitutional framer was the least bit concerned with individual firearm ownership, let alone for the purpose of self-defense, is a modern political fabrication with no authority in the legislative or general history surrounding the amendment that eventually became the Second.
Because the record does not support the conclusion in Heller, that opinion grasps at “loosely related” (to echo Justice Barrett) evidence of early—and mostly English—firearm ownership “traditions,” which are even less persuasive than the “history and tradition” reasoning in Vidal. Justice Scalia’s narrative fog cannot disguise the fact that the central discussion at the founding period was entirely focused on the rationale for maintaining the now-obsolete militia doctrine, and reveals zero discussion in the record about firearm ownership as a stand-alone right. Thus, Heller’s trivialization of the militia preamble is as historically inaccurate as it is textually incoherent. The need for militias is the subject of the sentence because that was the subject of concern circa 1790. Bruen merely doubles down on this misreading of “history and tradition,” which “conservatives” attribute to loyalty to an original intent that never existed.
History Misplaced on Abortion
By contrast, on abortion, while the history cited in Dobbs and Roe is not wholly inaccurate, I would argue that it is largely irrelevant. In Dobbs, “history and tradition” are mentioned 18 times, most pointedly to find that the 14th Amendment does not protect the right to an abortion. While reasonably arguing that some of the history cited in Roe was too ancient to be relevant, Justice Alito himself reaches all the way back to the 14th century to support a thesis which contains the kernel of its own fallacy. It states, “Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion.”
Assuming that statement is correct, it only highlights the fact that both the Dobbs and Roe discussions of history elide two relevant facts about the latter part of the 20thcentury: 1) medical science before the 20th century was barely distinguishable from sorcery; and 2) American women were only beginning to attain and enforce their rights as equal citizens at the time Roe was decided. Thus, any appeal to “history and tradition” prior to the 1970s—let alone to mention the views of unwashed primitives of past centuries—leans too hard upon scientific savagery and political sexism.
That Dobbs unravels Roe’s fundamental weaknesses as a constitutional matter is impossible to deny, but its discussion of “history and tradition” is likewise impossible to tolerate amid the rush of state laws resulting in barbaric outcomes for women with troubled pregnancies and which, in my view, clearly violate the Ninth Amendment and impliedly violate the Establishment Clause.
As Dr. Mary Anne Franks writes in a recent article for Ms. about the Rahimi decision, “Because an individual right to own guns is no more spelled out in the Constitution than an individual right to an abortion is spelled out in the text of the Constitution, the Court had to invoke the concept of ‘self-defense’ (which also does not appear in the Constitution) to justify expanding gun possession and use.” Indeed. Because one way to harmonize contradictions in legal doctrine (i.e., conflicting plain-text readings) is to distort “history and tradition.”
History Misguided on Religion?
On that note, we can turn to Louisiana’s recent attempt to frame the Ten Commandments as a key artifact of American history and tradition—passing a law so deceitful in its text that it contains a fake quote attributed to James Madison. The relevant Supreme Court precedent (Stone v. Graham 1980), addressing essentially the same question in Kentucky, suggests the Louisiana law will be struck down as an unconstitutional violation of the Establishment Clause. That said, in 2005, in Van Orden v. Perry, the 5-4 decision, joined by Justice Breyer relied on “history and tradition" summed up in a 1984 opinion which notes, “There is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789.”
Regarding the specific monument at issue in Van Orden, the Court held, “The placement of the Ten Commandments monument on the Texas State Capitol grounds is a far more passive use of those texts than was the case in Stone, where the text confronted elementary school students every day.” That is a highly subjective distinction, and because Texas and Louisiana are both controlled by the very conservative Fifth Circuit, we may see that court lean substantially on Van Orden’s “history and tradition” rationale to uphold the Louisiana law.
If that’s how it plays out, and the Supreme Court then overturns Stone and affirms, will that prove this Court is an extension of those evangelical forces which so transparently played a role in identifying Trump’s appointees? Will it imply that the conservative Justices agree with the crackpots who argue that the Constitution should be harmonized with Scripture? Certainly, many Americans would see it that way, and as a firm believer in the critical role of the Exercise and Establishment clauses, I would be deeply concerned.
Of course, religion is part of history. It would be absurd to suggest otherwise. But there is an important distinction between acknowledging or reflecting upon history and choosing what to memorialize—let alone revere. Similar to the Confederate statues question, a decision not to celebrate those generals is not synonymous with erasing history. There is a difference between a museum and a monument just as there is a difference between contextualizing the role of Judeo/Christian tradition in American history and insisting that “America is a Christian nation.” Unfortunately, those who sincerely believe the latter do not scruple to obfuscate their evangelical intent by cloaking it in the former.
Bringing this back to the Vidal case, Justice Barrett emerges as an interesting figure to watch. Portrayed by the Left as the harbinger of the Handmaid’s Tale, one certainly cannot ignore the political hype around her nomination as the “final nail” in Roe’s coffin. But Roe was easy enough to overturn on purely doctrinal grounds that the outcome is not dispositive on the question of, say, Barrett’s religion superseding her legal judgment.
Meanwhile, her articulate critique of Thomas’s “history and tradition” reasoning (albeit in a mere trademark case) is an intriguing preamble to a case like the inevitable fight over the Louisiana Ten Commandments law. A tight read of precedent and due respect for the Establishment Clause should lead the Court to strike down that law. But because Van Orden offers a “history and tradition” rationale for plowing new ground for religion in public schools, we shall see whether Barrett’s opinion in Vidal has anything to say if and when the Ten Commandments case gets to the Supreme Court.