History and Tradition’s Equality Problem

abstract.
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.

Introduction

In the summer of 2022, the Supreme Court adopted
history-and-tradition tests in three key areas of constitutional law. In New
York State Rifle & Pistol Ass’n v. Bruen, the Court held that laws
regulating guns are permissible under the Second Amendment only if those laws
are “consistent with the Nation’s historical tradition of firearm regulation.” In Dobbs v. Jackson
Women’s Health Organization,
the Court held that substantive due process protects only rights that are
“deeply rooted in the Nation’s history and tradition,” and that abortion does not
satisfy this test. In Kennedy v. Bremerton School District, the Court held that the
Establishment Clause must “be interpreted by reference to historical practices
and understandings,”
using an “analysis focused on original meaning and history.”

These history-and-tradition decisions have sparked
significant criticism. Some critics have argued that the Court got the history
wrong. Others have argued that
history-and-tradition tests are so malleable, it is hard to get the analysis
“right” in any objective sort of way. Judges implementing these tests have
observed that “there are frequently traditions that support each side of a
constitutional controversy,” leaving judges “free to cherry-pick from those
traditions to justify their preferred results.” Known and unknown gaps in
the historical record often make it difficult to define our regulatory
traditions with the degree of precision these tests demand—as does judges’ lack of
professional expertise in navigating eighteenth- and nineteenth-century history.

Even in cases where the historical data is relatively clear,
these tests remain highly malleable, because so much depends on the level of
generality at which courts choose to define the relevant history and tradition. A court inclined to preserve
a particular gun regulation under the Second Amendment may identify a broad
tradition of, say, disarming “dangerous” people; this broad definition could
permit new forms of regulation that did not exist at the time of the Founding.
A court more skeptical of gun regulation may define regulatory traditions
governing firearms with a greater degree of specificity and use that narrower
definition to invalidate modern regulation. Likewise, a court may find that
substantive due process protects a right to use contraception if it defines the
relevant history and tradition at a relatively high level of generality
(identifying a regulatory tradition protecting bodily autonomy and decisions
regarding parenthood); another court may reach a different conclusion if it defines
the relevant history more narrowly (asking if the Constitution was understood
in 1868 to protect a fundamental right to use contraception). There is a
growing body of scholarship demonstrating that selecting the appropriate level
of generality in a history-and-tradition case is not an objective or
value-neutral enterprise.
Ratcheting levels of generality up and down enables courts in
history-and-tradition cases to achieve preferred outcomes while claiming they
are simply deferring to the past.

This Essay builds on this existing literature by identifying
a critical feature of history-and-tradition doctrine that has not yet attracted
significant attention: outcomes in the Court’s new history-and-tradition cases
are often driven by hidden, twenty-first-century judgments about equality. Such
judgments may never rise to the surface, but they are often the moving force
driving judges to select particular levels of generality or make other
outcome-determinative choices (such as what time period and which geographic
locales to consider when trying to define a “tradition,” what texts or
databases to consult, whose history counts, whether to apply stare decisis, and
so on). I have referred to these choices in previous work as “shadow decision
points,” or “generally unacknowledged, often outcome-determinative choices
about how to interpret [the law] that are framed as methodological but that are
typically fueled by substantive . . . concerns.” This Essay shows that equality is
often the hidden substantive concern fueling apparently methodological
decisions in history-and-tradition cases—especially the all-important decision
of how broadly or narrowly to define the relevant historical tradition. Judges
in history-and-tradition cases frequently adjust the levels of generality at
which they define the relevant historical tradition in order to reach outcomes
that accord with their own understandings of equality.

This practice is not confined to judges of any particular
political persuasion. Despite claims that the history-and-tradition approach is
far “more determinate and ‘much less subjective’” than other interpretive
methodologies because it forces judges to
abide by “the teachings of history,” even judges who embrace
this approach are not actually willing to bind themselves to the distant past
in any consistent sort of way. The United States is nearly two-and-a-half
centuries old and there are many eighteenth- and nineteenth-century regulatory
practices we now consider abhorrent because they contradict modern conceptions
of equality. Very few, if any, judges on the bench today could stomach a
consistent application of the history-and-tradition test—one that tried simply
to identify how Americans regulated in the past and used that history to
determine the permissibility of regulation today without any consideration of
contemporary equality concerns. Thus, what we get in practice in
history-and-tradition cases is partial, inconsistent, and spotty adherence to
the past—an adherence to the past that is tempered by twenty-first-century
social and political judgments.

There is nothing wrong with courts’ refusal to consistently
abide by past practice in history-and-tradition cases. In fact, courts are
constitutionally obligated not to uniformly adhere to the past. The Equal
Protection Clause was ratified in 1868 to disrupt history and tradition. It was
designed to be forward-looking, to put an end to the oppressive practices of
the past and to effectuate a new promise of equal citizenship. The
Constitution’s equal protection guarantee means that courts do not view the
long history of segregated schools in this country as a reason to permit school
segregation today. Bars on interracial marriage may be deeply rooted in our
history and tradition, but that does not mean states in the twenty-first
century can bar such marriages. The meaning of equal protection is not static;
it evolves over time and admits of new understandings, which means that
governments today cannot simply treat eighteenth- and nineteenth-century
practices as a barometer for what is permissible today. There are legal
barriers to reinstituting many practices that were widespread in the past. So
it is good—indeed, constitutionally required—that courts in
history-and-tradition cases do not abide by past practice consistently and instead
implement history-and-tradition tests in ways that are inflected with modern
conceptions of equality.

However, the fact that equal protection prevents courts in
history-and-tradition cases from consistently following the relevant law circa
1791 or 1868, gives rise to a problem, or a nested set of problems. There is
always a second (often unarticulated) step in history-and-tradition cases.
After courts in history-and-tradition cases identify the relevant tradition,
they must determine whether that tradition is consistent with equal protection.
The first problem is that this unarticulated extra step is often a highly
contested and value-laden enterprise that undermines the purported neutrality
of the history-and-tradition test and the assertion that judges in these cases
are bound by the past. Second, there is a deeper problem: the
history-and-tradition cases in which the Court is making these equality
determinations are not framed as equal protection cases. They are substantive
due process cases, or First or Second Amendment cases. Thus, much of the time,
courts are making equal protection determinations in these cases sub rosa;
courts may not even acknowledge they are making these determinations. This
means that significant constitutional determinations concerning equality may be
made invisibly or implicitly, with little or no analysis or justification. This
leads to the third and deepest problem, which is what is happening now. The
Court has begun to silently gut or dismantle equal protection doctrine in
history-and-tradition cases in ways that can be hard to detect because the
Court is making these moves in cases in which the equality component is often
hidden.

Part I of this Essay focuses primarily on the hiddenness
problem—the fact that courts are making determinations about equality in
history-and-tradition cases without acknowledging they are doing so. Part I
uses United States v. Rahimi, the Second Amendment case
currently before the Court, as a case study. Rahimi concerns the
constitutionality of a federal law that prohibits individuals subject to
domestic-violence restraining orders from possessing firearms. To pass
constitutional muster after Bruen, contemporary gun regulations must be
“consistent with the Nation’s historical tradition of firearm regulation.” There were no laws
stripping perpetrators of domestic violence of their guns at the time the
Second Amendment was ratified. So, if the Court chooses to define tradition
narrowly, the government will lose this case, as it did in the Fifth Circuit.
But Bruen’s history-and-tradition test is highly malleable. If the Court
wants to uphold the law, it can easily find a way to do so—including by raising
the level of generality at which it defines our regulatory traditions so this
law can be characterized as fitting within those traditions.

Part I focuses in particular on the covert role conceptions
of equality play in Rahimi. The Fifth Circuit did not see any problem
with hewing closely to the history in this case; it held that because there
were no laws like today’s “domestic violence prohibitor” in 1791, this law is
not permissible today. In reaching this conclusion, the Fifth Circuit
implicitly determined that new ways of thinking about domestic violence and
women’s status in family—and the fact that more than half of the women killed
by current or former intimate partners are now killed with firearms—should not prevent us from
abiding by the regulatory practices of our forefathers in this context. But
judging by the public outcry and the tenor of the oral argument at the Supreme
Court in Rahimi, this view seems unlikely to prevail. Traditional ideas
about women’s equality and men’s familial prerogatives have changed too much in
the intervening centuries for most Americans to tolerate the idea that the
government may not disarm people subject to domestic-violence restraining
orders.

If the Court decides
that adhering to history and tradition too closely in Rahimi would produce abhorrent results, there are a multitude of doctrinal
mechanisms it can employ to avoid such results. Part I discusses these
mechanisms. But whatever route the Court takes—even if it employs one of these
escape valves—it will almost certainly insist that its decision is rooted in
eighteenth-century history and that it is simply hewing to that history,
properly understood. Pretending that history compels the outcome in this case
will enable the Court to avoid accountability for its decision; the Court will
not have to provide a full account of why it chose to depart from the specifics
of history in this case but not others; it will avoid the problems that would
rise to the surface if it admitted that it was influenced by twenty-first-century
understandings of equality in this case but refused to honor those
understandings in other cases.

Part II shows how
the hidden equality determinations the Court makes in history-and-tradition
cases may cross doctrinal lines and impact equal protection law itself. Part II
shifts the focus from guns to abortion, to show how the Court’s implementation
of the history-and-tradition test in Dobbs threatens equality law. The
Dobbs Court defined the relevant tradition with a very high degree
of specificity and found that our distant forefathers did not view abortion as
a fundamental right.
Part II does not address the accuracy of this history (there is a growing body
of literature that does). It focuses instead on the way the
Court in its substantive due process decisions picks and chooses when it is
going to hew closely to past practice and when it is going to instead raise the
level of generality at which it defines our regulatory traditions to produce
outcomes more in line with contemporary understandings of equality. The
history-and-tradition approach enables the Court to defer to past practice in
cases involving groups and rights the Court disfavors, but to break from past
practice in cases involving groups and rights the Court favors—while insisting
in both contexts that it is simply following the dictates of history.

Part II shows that the hidden equality-based determinations
the Court makes in history-and-tradition cases not only yield different results
for different groups, these equality determinations may also have spill-over
effects outside the confines of history-and-tradition cases. Dobbs is a
case in point. When the Court decided to hew closely to (its account of) past
practice in the context of abortion, it suggested that laws banning abortion
raise no equality concerns. This suggestion disregards half a century of legal
development in the context of equal protection and the construction of an
equality-based body of law limiting how the state may regulate pregnancy. Dobbs
did not formally overrule this body of law. But its failure to acknowledge the
existence of this body of law—its suggestion that the revival of
nineteenth-century abortion bans raises no equality concerns—covertly
undermines decades of legal precedent. 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.

I. interpreting the second amendment in the shadow
of equal protection

A few years ago, when Bruen was pending at the Supreme
Court, Adam Winkler published an essay entitled Racist Gun Laws and the
Second Amendment. At the time Winkler published his
essay, the Court had not yet adopted a history-and-tradition test in the Second
Amendment context, but a number of the Roberts Court’s newest Justices had
championed such a test when they sat on the U.S. Court of Appeals and the momentum at the
Court seemed to be in favor of more expansive gun rights. “History and
tradition” was being pitched as a more Second Amendment-friendly approach, one that would bar the
government from regulating firearms unless it could identify an “appropriate” eighteenth- or
nineteenth-century analogue to its current regulation. Winkler noted a
complication with this emergent test: “For much of American history, gun rights
did not extend to Black people and gun control was often enacted to limit
access to guns by people of color.” Many of the historical
traditions proponents of “history and tradition” wanted to treat as the sole
determinant of the Second Amendment’s meaning “bore the ugly taint of racism.” Winkler observed that “the
history of racist gun laws w[ould] complicate” the application of the
history-and-tradition approach in the Second Amendment context.

It was a prescient observation. There is already another gun
case at the Court,
and this new case—Rahimi—presents the very kinds of interpretive
challenges Winkler identified in his essay (although, in Rahimi, the
problems have more to do with gender than with race). How deep does the taint
of discrimination need to be before courts break with tradition? Which parts of
our regulatory tradition look so rotten, from a twenty-first-century
standpoint, that courts will or should balk at abiding by them?

Bruen did not acknowledge these challenges or provide
any guidance to judges about what to do when confronted with eighteenth- and
nineteenth-century regulatory traditions shaped by outmoded ideas. As post-Bruen
gun cases have made their way through the courts, judges have adopted
different approaches to the problem. One approach is simply to ignore the
discriminatory taint: to identify the relevant history and tradition and use it
to judge the constitutionality of current regulation, equality concerns
notwithstanding. But that is not the only possible approach. This Part shows
that Bruen’s history-and-tradition test provides the Supreme Court with
considerable leeway if it wants to avoid the conclusions the Fifth Circuit
reached in Rahimi. If the Justices are hesitant about adhering too
closely to regulatory traditions based on antiquated ideas about domestic
violence and guns, the history-and-tradition test incorporates a range of
mechanisms capable of producing outcomes more in line with twenty-first-century
understandings.

If the Court avails itself of one of these mechanisms, that
would be an understandable, even laudable, choice. It would be brutally
inegalitarian and exclusionary if twenty-first-century legislation and
jurisprudence were actually tethered to the distant past in all instances. But
it is a problem that the history-and-tradition test does not allow the Court to
admit that it’s engaged in such updating. If the Court is influenced by
egalitarian concerns in Rahimi, it is going to have to effectuate those
concerns sub rosa, under the cover of doctrinal moves that obscure the
substantive, value-laden choices the Justices are making. This doctrinal
framework accords the Justices a lot of power while substantially relieving
them of accountability for their decisions. It enables the very kind of
“free-wheeling policymaking”
that the history-and-tradition approach purports to curtail. This Part shows
that the history-and-tradition approach does not curb judicial discretion, it
pushes it underground, exacerbating rather than solving the problem of judges
“legislating from the bench.”

A. A “Straightforward” and “Focused” Approach to
History and Tradition

The Court’s decision in Bruen—which was widely
interpreted as a signal of the Court’s interest in expanding gun rights—sparked
a wave of Second Amendment challenges. One of the laws that came under fire
after Bruen was 18 U.S.C. § 922(g)(8), a federal law that prohibits
individuals subject to domestic-violence restraining orders from possessing
firearms. The Supreme Court recently
heard oral argument in a case challenging the
constitutionality of § 922(g)(8) brought by a man named Zackey Rahimi, who
was convicted under this law after police found two guns in his possession
alongside a copy of the restraining order he was under.

In the past, litigants have had no luck challenging
§ 922(g)(8)’s constitutionality under the Second Amendment. Indeed, when
Rahimi originally filed his claim in a federal district court in Texas, there
was recent Fifth Circuit precedent upholding § 922(g)(8) under the Second
Amendment: in 2020, the Fifth Circuit rejected a claim nearly identical to
Rahimi’s in a case called United States v. McGinnis. The court in McGinnis applied
the “two-step framework” courts adopted in the years after District of
Columbia v. Heller
and upheld § 922(g)(8) after finding that “reducing domestic gun abuse
is . . . a compelling [government interest]” and that the
law “is reasonably adapted to that interest.” That is typically how it
went in these cases prior to Bruen. The federal district court and the
Fifth Circuit panel that initially heard Rahimi’s claim rejected his contention
that § 922(g)(8) violated the Second Amendment, approvingly citing McGinnisand endorsing the
idea that the government has a powerful interest in disarming individuals in
the context of domestic violence.

This governmental interest analysis was explicitly influenced
by contemporary understandings of domestic violence and the government’s
interest in preventing it. Section 922(g)(8) was enacted in 1994 after a
multi-year effort in Congress to address the government’s longstanding
resistance to taking domestic violence seriously. “Between 1990 and 1991,
Congress held four hearings that documented the crisis of violence against
women in the United States” and the state’s traditional failure to police this
violence. Section 922(g)(8) was
designed specifically to address the historical absence of gun regulation in
the context of domestic violence. The bipartisan proponents of § 922(g)(8)
cited a plethora of studies documenting the harms domestic violence inflicted
on women, particularly when guns were involved. In light of this evidence,
it is not surprising that courts uniformly upheld § 922(g)(8) pre-Bruen,
when Second Amendment doctrine took governmental interest into account.

But not everybody in those years approved of courts’ use of a
balancing test under the Second Amendment. A growing number of conservative
judges began to argue that the two-step framework “permitted judges to
interest-balance away the Second Amendment guarantee.” These judges argued that
the two-step “approach was nothing more than a judicial
sleight-of-hand . . . feign[ing] respect to the right to
keep and bear arms but never enforcing its protection.” In fact, they asserted,
this framework “treat[ed] the Second Amendment as a ‘second-class right.’” One judge complained that
the Second Amendment post-Heller still “looked like an abandoned
cabin in the woods. A knot of vines, weeds, and roots, left unkempt for
decades, crawling up the cabin’s sides as if pulling it under the earth.”

The Supreme Court responded to these concerns in Bruen
by replacing the two-step framework that took government interest into account
with a “one-step”
test that turns solely on history and tradition. This new test purports to
accord no weight to twenty-first-century concerns about gun violence and
women’s status in society. The constitutional analysis after Bruen turns
solely on whether the government can “identify a well-established and
representative historical analogue” to its regulation. (The
historical analogue need not be a “twin” or “a dead ringer,” but it does have
to be “analogous enough [to the current law] to pass constitutional muster.”) Proponents of this test
portray it as a more “straightforward” and “focused” approach to interpreting
the Second Amendment. The prior balancing test invited judges to make
present-day policy determinations about the government’s interest in gun
regulation. Bruen’s test constrains judicial discretion by cutting out
modern-day concerns and limiting judges’ ability to “stray” from the document’s
“original meaning.”

After Bruen came down, the Fifth Circuit withdrew its
opinion in Rahimi upholding § 922(g)(8). A few months later, the
court issued a new opinion that opened by observing: “The question presented in
[Rahimi] is not whether prohibiting the possession of firearms by
someone subject to a domestic-violence restraining order is a laudable policy
goal. The question is whether 18 U.S.C.
§ 922(g)(8) . . . is constitutional under the Second
Amendment . . . .” Post-Bruen, the
Second Amendment analysis in Rahimi does not turn on statistics about
gun violence by domestic abusers or the toll such violence takes on women. The
analysis turns on whether the government can adduce a historical analogue
sufficiently similar to § 922(g)(8) to satisfy the history-and-tradition
test.

The government in Rahimi presented the Fifth Circuit
with several historical analogues to § 922(g)(8). It argued there were
numerous laws in England and the U.S. in centuries past that disarmed people
considered dangerous, and that these laws could serve as historical analogies
to § 922(g)(8). The Fifth Circuit rejected this claim. It found that the English
Militia Law of 1662—which the government cited as an example of a law
permitting the disarmament of dangerous people—was used by English kings to
disarm their political opponents, and that the Second Amendment was part of a
regulatory tradition designed to protect against this kind of disarmament. Similarly, the court found
that early American laws disarming slaves, Native Americans, and disloyal
people were inapt analogies for the new “domestic violence prohibitor”
“because . . . why they disarmed people was
different. The purpose of laws disarming ‘disloyal’ or ‘unacceptable’ groups
was ostensibly the preservation of political and social order, not the
protection of an identified person from the threat of ‘domestic gun
abuse . . . .’” The court rejected laws
that barred “going armed to terrify the King’s subjects” as apt analogies for
the same reason: those “laws appear to have been aimed at curbing terroristic
or riotous behavior, i.e., disarming those who had been adjudicated to be a
threat to society generally, rather than to identified individuals.” The court rejected other
possible historical analogies proffered by the government after finding that
they did not actually disarm people; they were never adopted; they were outliers, etc.

This analysis closely resembled that of another federal court
that reached the same conclusion about § 922(g)(8)’s constitutionality,
post-Bruen, in a case called United States v. Perez-Gallan. The court in Perez-Gallan
emphasized that Bruen required a “straightforward historical inquiry,” and it noted that Bruen
provided some useful and relevant guidance for conducting this inquiry. Bruen
explained that “when a challenged regulation 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.” “Likewise,” Bruen noted,
“if earlier generations addressed the societal problem, but did so through
materially different means, that also could be evidence that a modern
regulation is unconstitutional.”
The court in Perez-Gallan observed that Americans at the Founding were
aware of domestic violence, but never addressed it by disarming perpetrators. Moreover, the government
itself adduced evidence that eighteenth-century Americans sometimes visited
different, non-gun-related punishments on perpetrators of domestic abuse. The
court found that, by showing that Americans traditionally addressed this
age-old phenomenon “through materially different means,” the government
substantially undercut its argument that § 922(g)(8) is constitutional.

The court in Perez-Gallan acknowledged that Americans
today take domestic violence more seriously than our predecessors did in the
Founding Era; the idea that this kind of violence is predominantly a private
family matter has fallen out of favor. The women’s movement of the
mid-to-late twentieth century revolutionized the way we think about women’s
standing in society, and men’s and women’s roles and prerogatives in the
family. But the court in Perez-Gallan characterized these new ways of
thinking as contemporary “public policy concerns”—precisely the sort of
concerns Bruen meant to exclude from the analysis of a gun regulation’s
constitutionality under the Second Amendment. The court repeatedly observed
that § 922(g)(8) is a new law, that its “history started in 1994—less than
30 years ago,” making it younger than “the company Amazon.” Americans today may approve
of this law, but “Bruen’s mandate is that a gun regulation’s
constitutionality hinge solely on the historical inquiry.” Thus, the court concluded,
under a “straightforward history inquiry” into this nation’s regulatory
traditions, § 922(g)(8) is clearly unconstitutional.

B. Equality-Informed Mechanisms for Avoiding this
Outcome in Rahimi

These decisions, finding § 922(g)(8) unconstitutional
under the Second Amendment, provoked a substantial public outcry—which is understandable, given how
out-of-step they are with current social, political, and constitutional
understandings. Commentators accused the Fifth Circuit of “gender bias” and of
“put[ting] many women’s lives in danger.” They argued that the
“revanchisis[t]” decision to strike
§ 922(g)(8) reflected the values of “[t]he early American
republic . . . a far more sexist place than America in
2023.” They argued that the
invalidation of § 922(g)(8) took us back to a time when women were
second-class citizens, disenfranchised and subject to the rules of coverture. The commentators were not
wrong about this; the whole point of these decisions was to root Second
Amendment jurisprudence in understandings that prevailed in 1791.

But, this Section shows, the history-and-tradition test that
now governs the adjudication of Second Amendment cases does not yield the kind
of definitive answers the federal courts in these gun cases claimed to have
reached. Bruen’s history-and-tradition test leaves plenty of leeway for
courts to incorporate twenty-first-century concerns into their analysis—they
just cannot do so openly, as they could in the prior “two-step” framework. That
framework explicitly took governmental interest into account; in deciding
whether a regulation was constitutional under the Second Amendment, courts
explicitly considered the strength of the present-day justifications behind the
government’s regulation. Bruen purported to exclude all consideration of
such present-day concerns. But it did not actually do so. History-and-tradition
doctrine affords courts numerous escape valves—ways of abstracting out from the
particulars of historical practice to reach outcomes that accord with
contemporary ideas about equality and the state’s role in safeguarding it. The
Court is not bound to perpetuate inegalitarian regulatory traditions in Rahimi
any more than it was in Brown v. Board of Education or Loving v. Virginia. The main difference between
Rahimi and the earlier cases is that the Court will now have to
assert that its conclusions are perfectly originalist and that they follow
directly and inescapably from pre-twentieth-century understandings.

Here is one way the Court could do that. The Fifth Circuit in
Rahimi and the district court in Perez-Gallan accorded enormous
weight to the fact that there were no gun laws in 1791 barring domestic abusers
from owning guns. But historians have observed that the absence of such laws is
not surprising because guns in the eighteenth century were very different from
guns today: “Founding-Era firearms were cumbersome, slow, and inaccurate—not
what one could quickly and impulsively use for violence typically committed in
the heat of the moment.” For this reason, “‘[f]amily and
household homicides—most of which were caused by abuse or simple assaults that
got out of control—were committed almost exclusively with weapons that were
close at hand,’ which were not loaded guns but rather ‘whips, sticks, hoes,
shovels, axes, knives, feet, or fists.’” This evidence casts the
absence of laws like § 922(g)(8) in 1791 in a new light: regulators in
that era would have had no reason to ban perpetrators of domestic violence from
owning guns because domestic gun violence was not a widespread social
problem back then. The historical picture becomes even more complicated in
light of the fact that there was some statutory and common law regulation of
domestic violence in the late eighteenth century. These regulations did not
systematically disarm perpetrators of domestic violence, for the reasons just
mentioned, and they co-existed with social norms that granted men considerable
authority over family members. But the fact that there were regulations in this
period designed to curb domestic abuse—although they did not target guns
because guns were not relevant to this issue back then—makes it harder to argue
that § 922(g)(8) is clearly foreign to our regulatory traditions.

Bruen itself provides a doctrinal pathway for this
sort of argument. The Second Amendment Scholars brief in Rahimi notes
that the Court in Bruen (and Heller) explicitly condoned raising
the level of generality at which we define our regulatory traditions in certain
instances to reflect current circumstances. For example, the Court acknowledged
in Bruen that the Second Amendment was originally understood to protect
the right to possess and use weapons that were “in common use at the time.” There is some evidence that
“colonial laws prohibited the carrying of handguns because they were considered
‘dangerous and unusual weapons’”
at the time—a practice that would arguably deprive handguns of Second Amendment
protection today. But, the Court asserted, historical prohibitions on handguns
“provide no justification for laws restricting the public carry of weapons that
are unquestionably in common use today.” The Court explained that,
“even though the Second Amendment’s definition of ‘arms’ is fixed according to
its historical understanding, that general definition covers modern instruments
that facilitate armed self-defense.” The Second Amendment
Scholars argued in Rahimi that, under this reasoning, the Court ought to
uphold the constitutionality of § 922(g)(8), because “historical analogues
to modern firearms regulations [must] be evaluated at a level of
generality commensurate with that used to define the scope of the Second
Amendment right.”
If the Court is prepared to raise the level of generality at which it defines
traditional Second Amendment rights to extend protection to new (or newly
popular) weapons, it must also raise the level of generality to allow the
government to regulate new gun-related threats.

The Solicitor General presented the Court in Rahimi
with yet another doctrinally plausible theory of the case. In her brief and
at oral argument, she surveyed gun regulations before, during, and after the
ratification of the Second Amendment and argued that these regulations revealed
an unbroken, widely-held understanding that the government was permitted to
enact laws disarming dangerous people. She argued that “the conception of
what regulations that [historical principle] permits today is not controlled by
Founding-era applications of the principle.” Indeed, she argued that
courts should not adhere to eighteenth-century conceptions of dangerousness in
this context because historical reticence to apply this label to domestic
abusers “reflected the now-discredited belief that public authorities should not
intervene to prevent domestic violence because doing so could undermine marital
harmony.” She argued that the Court
regularly identifies historical principles in constitutional law but raises the
level of generality when applying those principles today to avoid perpetuating
outmoded understandings.
In keeping with this practice, she argued, the Court should uphold
§ 922(g)(8) as the kind of regulation the framers of the Second Amendment
would have viewed as permissible even if Americans in the eighteenth century
did not enact laws exactly like this one.

This Essay will be published before the Court issues its
decision in Rahimi. It is not clear what the Court will hold. But it is
useful to see, before the Court decides which direction to take, the various
possibilities that lie before it. The Justices who have instituted the
history-and-tradition test in the context of the Second Amendment have asserted
that this test protects constitutional adjudication from the influence of
contemporary ideologies by requiring judges to abide by historical
understandings and regulatory traditions. But the historical record does not
provide a definitive answer to the question of § 922(g)(8)’s
constitutionality, in part because there is no single, neutral, objective standpoint
from which to view the history. The federal courts that invalidated
§ 922(g)(8) claimed that they were interpreting the history objectively,
that the absence of regulations like § 922(g)(8) in the historical record
makes this a relatively easy case. But it is not true that the more closely one
hews to past practice the more neutral one is: Bruen makes clear that
the history-and-tradition test demands “historical analogues” not “historical
twins.” It directs courts to engage
in a certain amount of analogizing, and the Court in Bruen and Heller
made clear that in some cases fidelity to tradition requires that we update our
traditions so they make sense in the twenty-first century. Refusing to do so in
the context of § 922(g)(8), which is designed to counteract the
devastating modern epidemic of domestic gun violence, is not a value-neutral
decision.

Most Court-watchers believe the Court will overturn the Fifth
Circuit in Rahimi—that
it will find a way to generalize out from historical tradition at least enough
to deny constitutional protection to the plaintiff in this case. That appears
to be the only plausible outcome. To invalidate § 922(g)(8) would be
egregiously out of step with current egalitarian commitments and difficult to
justify given the Court’s willingness to abstract out from the details of
historical practice in other contexts in which the history-and-tradition test
applies, even other contexts within the Second Amendment. What will be more
interesting to see is how the Court accounts for the modernizing inherent in
deciding that a law stripping people under domestic-violence restraining orders
of their guns fits within our historical tradition. The Court could explain, as
it did in cases like Lawrence v. Texas and Obergefell v. Hodges that history is the
jumping-off point, that we must abide by principles deeply rooted in our
history and tradition but that our understanding of how those principles apply
changes over time, particularly as we come to recognize the exclusionary ways
we applied those principles in the past. If the Court opts for this approach,
it could lay out some much-needed guidelines for how courts should engage in
the practice of generalizing out from tradition in future cases. But the Court
could also use the history-and-tradition test to avoid this obligation. Whatever
outcome the Court reaches, it could insist that it is simply abiding by
historical tradition and that its opinion follows inexorably from
eighteenth-century understandings. Framing Rahimi that way would
camouflage the value-laden choices involved in resolving this case, and it
would leave more room for the Court to raise and lower levels of generality as
it sees fit in future cases.

C. Now You See It, Now You Don’t: Adjusting Levels
of Generality at the Roberts Court

It seems likely that the Court will ratchet up the level of
generality at which it defines our regulatory traditions in Rahimi high
enough to allow § 922(g)(8) to survive, at least in part. But if the
Justices likely to engage in this ratcheting are hoping to accomplish this task
without anyone noticing, they appear to be out of luck. Justice Jackson and
Justice Kagan repeatedly called attention to this issue at oral argument in Rahimi
with a series of questions designed to expose the fact that
history-and-tradition doctrine does not actually bind courts to the past in any
meaningful way.

Justice Kagan observed that, two centuries ago, “the problem
of domestic violence was conceived very differently. People had a different
understanding of the harm. People had a different understanding of the right of
government to try to prevent the harm. People had different understandings with
respect to pretty much every aspect of the problem.” Justice Jackson suggested
there was evidence in “the historical record that domestic violence was not
considered dangerousness back in the day[.]”

The Fifth Circuit in Rahimi and the district court in Perez-Gallan
cited this evidence regarding eighteenth-century conceptions of domestic
violence as a central reason for invalidating § 922(g)(8), finding that
the law was inconsistent with Founding Era beliefs about who could be
rightfully disarmed. But Justices Jackson and Kagan did not cite this evidence
to argue that § 922(g)(8) is unconstitutional. They cited this evidence to
expose the fact that judges in history-and-tradition cases are not meaningfully
constrained by history and tradition. Justice Kagan argued that the Court
simply could not stomach adhering to historical understandings in this
case—nobody in the courtroom “[could] stand . . . the
consequences” of saying the government
could not strip domestic abusers of their guns. Her point, and Justice
Jackson’s as well, was that the “historical framing” does not do much analytical
work in these cases. When history points in unappealing directions, even traditionalist
judges raise levels of generality to bring constitutional outcomes in line with
“modern sensibilities”
and to avoid results that strike them as “untenable” today.

In light of the very obvious way in which courts generalize
out from historical tradition to bring their decisions in line with modern
sensibilities, Justice Jackson asked during oral argument, “what’s the point of
going to the founding era?” Why frame the test as historical if history does
not actually determine the outcomes in these cases?

Framing these cases in this way does serve a function, and
not just an aesthetic or rhetorical function. If the Court insists that it is
bound to adhere to history and tradition in every case, that means that in some
cases, when it chooses, the Court really can adhere to historical
practices—without offering any additional justification for its embrace of
potentially outmoded ideas in these contexts. You can see this dynamic if you
set Rahimi alongside cases like Lawrence and Obergefell.
The Solicitor General argued in Rahimi that there is a long tradition in
the United States of disarming “dangerous” people. Americans in 1791 may not
have understood that perpetrators of domestic violence are “dangerous.” But we
now understand that they are, and we’re not breaking with traditional
principles by including them in this category; we are simply updating the
applications of those principles in light of new understandings of the
dangerousness of domestic violence.

This is precisely the kind of reasoning that fueled the
Court’s holdings in Lawrence and Obergefell that people have a
right to engage in same-sex intimacy and that same-sex couples have a right to
marry. In both of those cases, the Court identified longstanding constitutional
principles (protecting the liberty of consenting adult sexual relationships and
the right to marry) and updated the applications of those principles in light
of new understandings of the humanity of LGBTQ+ people and the negative
consequences of stigmatizing their relationships and families. It is very
possible, perhaps even likely, that the Court in Rahimi will find a way
to preserve § 922(g)(8) by abstracting out from the actual practices and
understandings of eighteenth-century Americans and finding that their core
principles regarding dangerousness are broad enough to include perpetrators of
domestic violence. But many of the Justices who may follow this path in Rahimi
dissented in Obergefell. In the gay rights case, they were quite
insistent that the Court was constitutionally bound to adhere very closely to
the practices of our distant ancestors, and they harshly condemned the Court
for raising the level of generality at which it defined our historical
traditions to bring LGBTQ+ people into the fold.

Thus, regardless of the outcome in Rahimi—even if the
Court upholds the law—there is something pernicious about what is happening
here. Whatever happens in Rahimi, the case has brought into sharp focus
the inegalitarian functioning of the history-and-tradition test and the broad
discretion this test gives the Justices to make covert determinations about the
weight of constitutional equality concerns. The Justices currently in the
majority on the Roberts Court seem very willing to raise the level of generality
at which they define our historical traditions when doing so will result in the
punishment of perpetrators of domestic violence or increase the number of
weapons protected under the Second Amendment. But when doing so would extend
constitutional protections to LGBTQ+ people, they take a very different view of
ratcheting up levels of generality; in the LGBTQ+ cases, they insist we must
abide very closely by the practices and understandings of our great, great,
great grandfathers.

Part II continues this discussion of the Court’s uneven
willingness to define historical traditions in capacious ways and to bring
twenty-first-century understandings to bear on its analysis in
history-and-tradition cases. LGBTQ+ rights is not the only context in which the
Court balks at abstracting out from the particulars of our historical
traditions; the Court does so in the context of reproductive rights as well.
Part II shows that the problem extends beyond partiality, the Court’s
willingness to raise levels of generality to protect some groups and rights and
not others. When the Court holds in certain cases that it is constitutionally
compelled to hew very closely to past practice and adopt the particular
understandings of our forefathers, it may need to ignore or disregard equal protection
precedents that stand in the way of implementing those old understandings
today. Part II shows that this is already happening in the context of
reproductive rights—and that the attacks on equality that occur sub rosa in
the Court’s history-and-tradition cases may actually cross doctrinal lines and
have a tangible effect in the context of equal protection.

II. dobbs and the dismantling of modern equal
protection law

The day after the Court adopted its new history-and-tradition
test in the context of the Second Amendment in Bruen, it adopted a
similar history-and-tradition test in the context of abortion in Dobbs.
The Court held in Dobbs that substantive due process protects only those
rights that are “deeply rooted in this Nation’s history and tradition,” and it
explained that judges applying this test must hew very closely to historical
traditions to avoid “confus[ing] what th[e Fourteenth] Amendment protects with
our own ardent views about the liberty that Americans should enjoy.” The question in Dobbs
was whether the right to abortion satisfied this test. The Court held that it
did not.

There is much to say about the Court’s characterization of
the history of abortion regulation in Dobbs. For instance, there was
considerable evidence before the Court in Dobbs that Americans in the
nineteenth century did view abortion as a fundamental right prior to the
quickening of the fetus, and that even states that purported to ban abortion
did not do so in practice, in part because the public would not accept the abrogation
of this right. But even if we accept the Dobbs
Court’s conclusion that abortion was not viewed as a fundamental right prior to
the twentieth century—that it was not “deeply rooted in history and
tradition”—we are still left with the problem this Essay addresses. The Court
in Dobbs claimed it was bound by history to reject the right to
abortion, case closed. But there are many other cases in which the Court has raised
the level of generality at which it defines historical tradition in order to bring
its decisions in line with modern equal protection principles.. It seems poised
to do so in Rahimi; it has done so in the past in cases such as Obergefell, Lawrence, Loving,
Griswold v. Connecticut,
Brown v. Board of Education, and Bolling v. Sharpe. This variability in the
Court’s approach to history means we cannot look solely to the past to explain
the outcome in Dobbs. There are many canonical cases in which the Court
does not abide by “history and tradition,” defined “carefully.” The past is not
determining the different outcomes in these cases. The outcomes in these cases
are being driven by contemporary judgments—not about history, but about
equality, and about the compatibility of particular forms of regulation with
modern understandings of equal citizenship.

Section II.A shows how the history-and-tradition frame hides
the modern, value-laden judgments about equality that often drive the Court’s
decision-making in these cases. This Section shows that history is not driving
the outcomes in these cases. In fact, the Court in history-and-tradition cases
often shapes history to suit its needs. “History and tradition” is a tool for
reaching preferred outcomes. It is not a constant and objective metric by which
the Court gauges the constitutionality of twenty-first-century regulation.

Section II.B shows that the problem with the Court’s
history-and-tradition jurisprudence goes beyond a lack of candor and concerns
about inconsistency and partiality. When the Court turns to equality to help it
transcend constitutionally suspect historical traditions—either explicitly, by
invoking equal protection law, or more covertly, by ratcheting up the level of
generality at which it defines the relevant tradition—it may reinforce modern
understandings of equality. But when the Court chooses not to invoke
equality principles, in cases where they may be relevant, it can undermine
equal protection, without acknowledging that it is doing so. This Section
argues that that is what is happening in Dobbs. What the Dobbs
Court frames as a straightforward reading of the historical record is
actually a covert attack on sex-based equal protection law.

A. The Malleability and Uneven Application of
“History and Tradition”

Justice Alito prefaced his discussion of the history of
abortion regulation in Dobbs with a discussion of the importance of
courts hewing very closely to history and tradition in deciding substantive due
process cases. If they do not, he asserted, “the liberty protected by the Due
Process Clause” could “be subtly transformed into the policy preferences of the
Members of this Court.”
Alito argued that “when the Court has ignored the [a]ppropriate limits imposed
by respect for the teachings of history, it has fallen into the freewheeling
judicial policymaking that characterized discredited decisions such as Lochner
v. New York.”
He warned that “[t]he Court must not fall prey to such an unprincipled
approach” again. He claimed that the
only way to avoid the incursion of contemporary politics into substantive due
process cases is to determine with a very high degree of specificity the
contours of our regulatory traditions and to adhere to those specific contours.

One problem with this set of claims is that we,
twenty-first-century Americans, cannot consistently bind ourselves to history
and tradition, defined at the level of granularity this doctrine requires. We
have repudiated too many regulatory traditions from the eighteenth and
nineteenth centuries to feel comfortable hewing to those traditions now—particularly
in cases involving historically subordinated racial and ethnic groups, women,
immigrants, non-Protestants, people with disabilities, and various kinds of
sexual and reproductive rights. Justice Ginsburg once observed that “[a] prime
part of the history of our Constitution . . . is the story
of the extension of constitutional rights and protections to people once
ignored or excluded.”
A major part of this process has involved jettisoning regulatory traditions we
now recognize as inegalitarian and exclusionary. Courts have repeatedly
concluded that such jettisoning is constitutionally required.

Justice Scalia often framed judicial disagreement in
culturally contested areas as a conflict between progressives, who sought to
update the Constitution by interpreting it in accordance with their own
enlightened political views, and conservatives, who honored the Constitution—“the
old one,” written by “our ancestors.” But the phenomenon
described in the previous paragraph is one that cuts across political and
ideological lines. The United States was founded hundreds of years ago; more
than a century and a half has passed since the ratification of the Fourteenth
Amendment. The country has experienced staggering cultural and political change
in the intervening years. Progressives and conservatives today disagree about
many things. One thing we share is an unwillingness to abide by many of the
specific regulatory traditions of the eighteenth and nineteenth centuries.

Roberts Court Justices have called attention, in recent
years, to numerous historical practices and traditions they now view as
abhorrent. In Ramos v. Louisiana, Justice Gorsuch opened his majority
opinion with a discussion of the racist origins of laws permitting
nonunanimous juries to convict defendants of serious crimes. This practice may be
facially race-neutral, but, Gorsuch observed, it developed in the Jim Crow era
and it reinforced racial inequality, in part by “ensur[ing] that
African-American juror service would be meaningless.” In Obergefell,
Justice Thomas made similar observations about antimiscegenation laws; he
described the “sordid history”
of those laws and the way they reinforced “white supremacy” in the aftermath of the
Civil War. In McDonald and Bruen, Thomas wrote at some length
about the racism that pervaded gun regulation in the eighteenth and nineteenth
centuries. He suggested that allowing
such tainted regulation to persist into the present day would violate equal
protection.

Justice Alito has expressed similar concerns about the
history of gun regulation. He spent several pages in his majority opinion in McDonald
discussing the racism that undergirded gun regulation prior to (and well into)
the twentieth century.
At the oral argument in Bruen, he suggested “that a major reason for the
enactment of” New York’s law restricting concealed carry “was the belief that
certain disfavored groups, members of labor unions, Blacks, and Italians, were
carrying guns and they were dangerous people.”

In Espinoza v. Montana Department of Revenue, Justice Alito engaged in a
lengthy and impassioned disquisition on the bigotry that motivated the
regulation of religious schools in the second half of the nineteenth century.
He described the “virulent prejudice against immigrants, particularly Catholic
immigrants,” that pervaded American
politics and lawmaking in this period. He discussed the major wave of
immigration that occurred in the mid-nineteenth century and the “nativist
fears” this new influx of people triggered. He noted that “[a]n entire
political party, the Know Nothings, formed in the 1850s ‘to decrease the
political influence of immigrants and Catholics,’ gaining hundreds of seats in
Federal and State Government.” He observed that, even beyond the Know Nothings,
many state and federal legislators in the second half of the nineteenth century
were deeply biased against Catholics and that this bias routinely infected
their lawmaking.
Indeed, Alito argued that lawmaking in this period was so saturated with anti-Catholic
bigotry its taint persists even today, and courts must be extra-vigilant to
ensure current laws do not perpetuate such outmoded views.

Now, let us turn to Dobbs. The American Historical
Association, the world’s largest professional organization devoted to the study
of history, and the Organization of American Historians, the largest professional
organization devoted to the study of U.S. history, submitted an amicus brief in
Dobbs that reaffirmed Justice Alito’s description of the second half of the
nineteenth century as a period awash in anti-immigrant, particularly
anti-Catholic, sentiment. The historians’ brief showed how
“consternation over immigrant Catholics out-reproducing native white
Protestants” fueled anti-abortion
lawmaking in this period. The brief described the success of the “physicians’
campaign,” started by Horatio Storer in 1857, in persuading many state
legislatures to enact new bans on abortion. The brief showed that this
campaign was motivated not only by concerns that Catholic immigrants were
producing more children than Protestants, but also by concerns that married
women were “shunning their proper roles as mothers by choosing abortion.” This was the period in
which Justice Bradley famously opined that it was constitutional to bar women
from the practice of law because “[t]he paramount destiny and mission of woman
are to fulfil the noble and benign offices of wife and mother.” Lawmakers in these years
routinely voiced this sentiment and legislated accordingly.

In Dobbs, however, Justice Alito rejects the idea that
anti-Catholic sentiment could have influenced the regulation of abortion in
this period. He responds to the historians’ brief by asking, incredulously:
“Are we to believe that the hundreds of lawmakers whose votes were needed to
enact [laws restricting abortion] were motivated by hostility to Catholics and
women?” It is hard to square
Alito’s incredulity in Dobbs at the suggestion that anti-Catholic
sentiment influenced abortion-related lawmaking in the mid-nineteenth century
with his lengthy account of the widespread anti-Catholicism of legislators in
this same period in Espinoza. It is even harder to understand his
incredulity at the suggestion that nineteenth-century lawmakers could have
legislated in ways that reflected hostility to women. Lawmakers in this period
denied women the right to vote, the right to serve on juries, the right to
attend many schools, and the right to pursue many professions; they generally
failed to regulate domestic violence; they routinely questioned women’s
physical and mental capabilities and insisted that women’s primary purpose was
to care for their families. Perhaps Alito is getting tripped up on the word
“hostility” (his word—not one the historians used). Because it is not in the
least bit difficult to believe that nineteenth-century legislators passed laws
that forced women into traditional sex and family roles (which is what the
historians argued about abortion laws). Nineteenth-century legislators did that
all the time.

After expressing incredulity at the suggestion that the
lawmakers who enacted abortion bans in the second half of the nineteenth
century might have been motivated by prejudiced views of Catholics and women,
Justice Alito argued that these bans were “instead spurred by a sincere belief
that abortion kills a human being.” But believing that
abortion kills a human being and worrying about the decline of the native
population and women’s wavering commitment to traditional sex roles are not
mutually exclusive. In fact, the historians’ brief shows that the
nineteenth-century campaign against abortion was motivated by all these
concerns.

In other cases—not involving abortion—Justice Alito and his
colleagues in the Dobbs majority have been perfectly capable of recognizing
mixed legislative motives. The existence of genuine concerns about the dangers
presented by guns did not prevent the Justices from recognizing the racism
underlying some forms of gun regulation. Legitimate concerns about protecting
funding for public schools and avoiding excessive entanglement between church
and state did not prevent Justice Alito from detecting the taint of
anti-Catholicism in laws withholding state funding from religious schools. But
in Dobbs, the Court applies a different filter. In cases like McDonald,
Bruen, Ramos, and Espinoza, the Court is on high alert,
keeping an eye out for discriminatory views that might have informed regulatory
traditions in the past and scrutinizing current laws to ensure they do not
carry with them even the smallest taint of those old views. In Dobbs, the
Court takes the opposite approach, suggesting it is ludicrous to be suspicious
of the motivations of nineteenth-century lawmakers and dismissing any concerns
about the role of outmoded views in shaping regulatory traditions governing
pregnancy and reproduction.

This gives the lie to the idea that the Court’s new
history-and-tradition tests constrain judges, or enable them to discern what
the law really is, in ways that living constitutionalist modes of
interpretation do not. Judges who advocate these tests often concede that
“[h]istorical analysis can be difficult; it sometimes requires resolving
threshold questions, and making nuanced judgments about which evidence to
consult and how to interpret it.” But, they insist, the
history-and-tradition test is much “more determinate and ‘much less subjective’
because ‘it depends upon a body of evidence susceptible of reasoned analysis.’” As a result, they argue,
“the range of potential answers will be far more focused under an approach
based on text, history, and tradition.”

This is not true. It is not true because there are a thousand
and one “shadow decision points” involved in applying
history-and-tradition tests. In some cases, courts accord deference to
professional historians. In Dobbs, the Court dismisses the historians’
brief and draws much of its historical analysis from the work of a retired
Villanova law professor who is not a professional historian. There is no debate that
the period in which many states adopted abortion bans was one of intense
nativism and widespread concern about the growth of the Catholic population.
There is no debate that women in this period were treated as second-class
citizens and generally bound by law to conform to traditional sex and family
roles. Yet the Court treats it not only as wrong but as laughable when the
nation’s leading organizations of historians assert that anti-immigrant and
gender-inegalitarian views influenced the passage of laws regulating pregnancy
and reproduction in this period.

This is not the approach the Court takes when it looks to see
if outmoded views influenced the historical regulation of guns or religious
schools. In those contexts, the Court portrays late-nineteenth-century
legislators as white supremacists who were fervently hostile to Catholics. When
it comes to abortion, the Court insists their motivations were as pure as the
driven snow. When one compares the Court’s account of mid-to-late
nineteenth-century lawmakers in Dobbs with its account of those very
same lawmakers in other cases (cases in which the Justices in the Dobbs
majority are less sympathetic to governmental regulation), there seems to be
more at work than historical analysis.

This same variability in the Court’s characterization of the
past is evident in its determinations about which substantive due process
precedents satisfy the history-and-tradition test and which do not. The Court
announces in Dobbs that the Fourteenth Amendment protects only those
rights that are deeply rooted in “history and tradition.” It holds in Dobbs that
abortion fails this test, and it acknowledges that this test raises concerns
about the fate of LGBTQ+ rights and other reproductive rights, such as the
right to contraception.
But it makes no mention of other substantive due process decisions that also
appear to fail this test. Bolling v. Sharpe—the 1954 case in which the
Court interpreted the Due Process Clause of the Fifth Amendment to bar racial
segregation in D.C. schools—clearly fails Dobbs’s test. It is hard to
argue that the right of Black children to attend integrated schools was deeply
rooted in this nation’s historical traditions in 1791. Loving’s due
process holding
fails the test as well; the right to interracial marriage was not deeply rooted
in this nation’s history in 1868. Justice Scalia argued that Meyer v.
Nebraska, a 1923 case protecting the
substantive due process right of parents to have their children educated in a
foreign language, also failed this test. The Court in Meyer
certainly did not establish that this right was viewed as fundamental in 1868. Justice Stevens argued
that the history-and-tradition test would also “vaporize” Pierce v. Society of
Sisters—a 1925 decision protecting
the fundamental right of parents to send their children to Catholic school. Yet
when Justice Alito and Justice Thomas discuss cases that may fail to satisfy Dobbs’s
history-and-tradition test, they cite only cases involving LGBTQ+ and
reproductive rights.

All of which is to say, there is clearly something other than
history and tradition driving the analysis here. The due process rights
recognized in Bolling and Loving were no more deeply rooted in
this nation’s history and traditions circa 1791 or 1868 than those recognized
in Griswold, Roe, Lawrence, and Obergefell. We need
to look elsewhere—at something other than history and tradition—to understand
the Court’s differential treatment of these cases.

The factor that is actually driving the Court’s analysis is
equality. The Justices in the majority in Dobbs put Bolling, Loving,
Meyer, and Pierce on one side of a dividing line, and Griswold,
Roe, Lawrence, and Obergefell on the other side of that
line. But that line has little to do with history and tradition or the
practices of Americans in the eighteenth and nineteenth centuries. If Bolling,
Loving, Meyer, and Pierce survive after Dobbs, it
will not be because the rights recognized in those cases were deeply rooted in
history and tradition, defined at a high level of specificity. They will
survive because the Court, motivated by contemporary understandings of
equality, will override the results of the history-and-tradition test in those
cases.

This overriding could take many forms: the Justices could
cite stare decisis; they could rely explicitly on the Equal Protection Clause
or the First Amendment; they could bump up the level of generality at which
they define the relevant historical tradition. But one way or another, the
Justices will ensure the outcomes in these cases comport with
twenty-first-century notions of equality. When it comes to reproductive and
LGBTQ+ rights, however, the Justices in the majority in Dobbs have
signaled they will not deploy equality to save decisions that fail their new
test. In other words, the Justices will break with history and tradition when
old practices violate their (twenty-first-century) notions of equality, but
will hew closely to tradition in cases where they continue to find the
old-style regulation tolerable from an equality standpoint.

This means that attempting to identify which rights and
regulatory traditions were “deeply rooted” in 1791 or 1868 will not generate
reliable information about the likely outcome of a history-and-tradition case.
The conservative Justices’ views about equality are a far more reliable
predictor than our nation’s history and traditions of which rights and
regulations will survive under the Court’s new history-and-tradition test. And
when judges make equality determinations in history-and-tradition cases, they
are not relying on the judgments of our ancestors about what equal protection
entails. They are relying on their own, frequently unvoiced, judgments about
what counts as inegalitarian—judgments that may or may not match the
perceptions of the American public (at any point in our history). To call this
fidelity to the past is a smokescreen. It obscures what is actually happening
in these cases.

B. The Dark Side of Doing Equal Protection in the
Dark

Thus far, this Essay has focused on the malleability and
rule-of-law problems associated with making equality determinations behind the
screen of “history and tradition.” It is difficult to predict the outcomes of
cases using the history-focused doctrine the Court says it is employing because
the real work is happening elsewhere. The fact that this often
outcome-determinative equality work happens out of sight enables the unequal
treatment of rights and groups. Judges can be tougher on eighteenth- and
nineteenth-century lawmakers when they want to countermand what those lawmakers
did (say with respect to guns or religious schools) and easier on them when they
want to preserve historical forms of lawmaking (say with respect to
reproductive or LGBTQ+ rights). They can override or depart from the particular
regulatory practices of those lawmakers in cases like Rahimi, in which
they can no longer abide eighteenth- and nineteenth-century views about women,
and overlook those views in cases like Dobbs, in which they are more
comfortable with the regulatory practices at issue.

This Section focuses on a related but distinct problem with
the Court’s history-and-tradition jurisprudence. History-and-tradition cases do
not occur in a vacuum. When the Court makes major (often unstated)
determinations about equality in these cases, those determinations are not
hermetically sealed off from the rest of the law. The Court’s (stated or,
mostly, unstated) reasoning about equality in history-and-tradition cases
bleeds into and affects other areas of the law. This is particularly true in
the context of the Court’s substantive due process cases. Constitutional
scholars have long recognized that substantive due process and equal protection
are tightly interconnected—like a double helix. In some circumstances,
this synergy has led to an expansion of rights, as when the Court’s substantive
due process decisions in Lawrence and Obergefell fortified
equality-based LGBTQ+ rights claims. When the Court contracts substantive due
process rights, however, this synergy can lead to a contraction of equal
protection. This Section examines the potential implications of Dobbs—and
all of the stated and unstated equality judgments embedded in the Dobbs Court’s
history-and-tradition analysis—for sex-based equal protection law.

As the preceding Section showed, the Dobbs Court
rejected historical accounts of the role of gender stereotyping in the
restriction of abortion in the nineteenth century. But amicus briefs in the
case raised a host of other equality concerns as well. Numerous briefs focused
on the deleterious consequences for women and other people capable of pregnancy
when states criminalize reproductive healthcare. These briefs argued that states have
many nonpunitive, noncoercive tools for nurturing life and encouraging people
to continue their pregnancies. Lack of financial resources is among the most
cited reasons people give for obtaining abortions. States could address those
concerns, and promote life and health, through various noncarceral approaches
that respect the agency of pregnant people, including: instituting
evidence-based sex education programs that help to reduce unplanned
pregnancies, which are far more likely than planned pregnancies to result in
abortion; making contraception widely available and mandating its coverage in
health insurance plans; expanding Medicaid to ensure people receive essential
pre- and post-natal care; providing pregnant people with nutrition and housing
support and access to drug and alcohol treatment programs; guaranteeing
high-quality childcare and paid parental leave; and passing laws that protect
pregnant workers.

When states eschew such measures and opt instead to institute
criminal bans that threaten the wellbeing of pregnant women and others, and deprive
them of agency and authority over their own lives, this raises concerns about
whether the state is treating women and people capable of pregnancy with equal
regard. Briefs in Dobbs argued that there is special cause for concern
from an equality standpoint because punitive approaches to abortion take their
harshest toll on Black women, women of color, and poor women, who have always
been targeted by, and suffered disproportionately as a result of, governmental
efforts aimed at controlling reproduction. Briefs argued that
overturning Roe would exact a particularly terrible toll on these women. But, numerous briefs
observed, no pregnant person can escape the threat posed by criminal abortion
laws, because abortions are required in all sorts of circumstances in which the
fetus is compromised and the pregnant person’s life and health are at risk.

When states enacted criminal abortion laws in the second half
of the nineteenth century, women were second-class citizens under the law. They
were deprived of basic rights and viewed as inferior to men. They were often denied
agency and autonomy and forced to conform to traditional sex and family roles.
Lawmakers in this period regularly opined that motherhood was women’s highest
calling, and they restricted women’s rights in various ways to ensure women
pursued this calling. The Dobbs Court concluded that laws forcing women
to continue their pregnancies were an exception to this general dynamic. But
the Court did not—could not—dispute that, in the period in which abortion bans
were originally enacted, women were legally relegated to second-class status.

This raises the question: Is it constitutionally permissible
to revive a nineteenth-century regulatory tradition—a regulatory tradition that
restricted women’s rights in a period in which the state routinely denied women
rights—today, in the twenty-first century, when we have a very different
understanding of women’s constitutional status? Constitutional law now requires
the state to respect women’s equal citizenship; it bars the state from
regulating in ways that reflect and reinforce traditional understandings of
women’s sex and family roles. Can governments today reinstitute (and enact even
harsher) criminal abortion laws, given all the legal development that has
occurred with respect to women’s equality in the century and a half since those
laws were passed?

The Dobbs Court claimed it was bound by history:
Americans in the eighteenth and nineteenth centuries did not protect the right
to abortion, so courts today cannot protect that right either. But courts are
not actually bound in this way; they regularly override or depart from history
and tradition when they decide that old regulatory traditions are inconsistent
with modern conceptions of equality. That is what the Court did in Bolling
and Loving, and Lawrence and Obergefell; it may soon do
the same in Rahimi. The Court’s insistence in Dobbs that its
hands are tied by history is flatly contradicted by the cases in which the
Court decides it is not bound by the past. The Dobbs Court affirmatively
decided to allow traditional abortion regulation to be revived today, despite
what we know about the history of laws regulating pregnant women in this
country and the deleterious effects of carceral approaches to abortion on women
and pregnant people.

This is how history-and-tradition decisions, even when they
purport to turn solely on historical analysis, may undermine contemporary
understandings of equal protection. When the Court draws on modern notions of
equality to block some regulatory traditions, but not others, it makes
determinations not just about the shape of substantive due process, but also
about the content and scope of equal protection law. In many of the cases cited
in this Essay, the Court makes these determinations in the dark. The fact that
judges make these determinations in the dark means they are not particularly constrained
by equal protection precedents; they can follow or ignore those precedents as
they see fit because the equality work in history-and-tradition cases takes
place completely out of view. It is not hard to see how equal protection law
could be silently undermined in this way. If judges choose not to draw on
equality principles to depart from histories and traditions that conflict with
modern equal protection law, they may erode that law without ever mentioning
the word equality.

Somewhat unusually—and maybe because the equality argument
was so pressing in this case—the Court did not remain entirely silent on the
subject of equality in Dobbs. It reached out, in a few lines of dicta,
to address the equality question explicitly. The Court asserted in Dobbs
that concerns about equality have no place in the context of abortion
regulation; equal protection simply does not extend to this form of regulation.

The Court supported this pronouncement on the scope of equal protection
law by citing a fifty-year-old case called Geduldig v. Aiello. Geduldig held that
a pregnancy classification was not a sex classification for the purposes of
equal protection. This decision has not been formally overruled. But that is
the best one can say about Geduldig. In concluding that pregnancy
discrimination is not sex discrimination, Geduldig relied on the same
sort of formalistic contortion of logic courts used earlier in the twentieth
century to hold that antimiscegenation laws did not discriminate on the basis
of race because they barred everyone from marrying across racial lines. In Geduldig, the
Court held that pregnancy discrimination was not sex discrimination because
pregnancy was an “objectively identifiable physical condition” affecting only a
subset of women—so there was no sex-based line being drawn. This is not precisely the
same logical contortion courts relied on to insulate antimiscegenation laws
from equal protection scrutiny. What links these analyses is that they are
completely denuded of any social context. When Geduldig reached the
Court in the early 1970s,the Court had
just recognized that antimiscegenation laws perpetuated racial subordination.
But it could not yet recognize how the regulation of pregnant women might
reenforce sex-based hierarchies and it could not yet conceive of applying
constitutional equality protections across biological difference.

It is not hard to fathom why the Justices cordoned off the
regulation of pregnancy from equal protection scrutiny the way they did in Geduldig.
Five of the six Justices in the majority were born before women in the U.S.
obtained the right to vote (the sixth, Justice William Rehnquist, was born just
after, in 1924). These men “came of age in an era in which the exclusion of
pregnant women and mothers from the public sphere was viewed as entirely
natural, an outgrowth of biological difference and a benign reflection of the
fact that women’s primary calling is to have children and care for their
families.” Geduldig predated
the construction of modern sex-based equal protection law. It arrived on the
Justices’ desks before the Court had even adopted a framework for analyzing
sex-based state action.

Few areas of law have evolved more in the past half century
than sex-based equal protection law. This evolution has turned Geduldig
into a constitutional relic. Its burial began soon after it was decided. In
1978, Congress repudiated the Court’s efforts to import Geduldig’s
reasoning into federal employment-discrimination law by enacting the Pregnancy
Discrimination Act (PDA), which defines discrimination on the basis of
pregnancy as discrimination on the basis of sex for purposes of Title VII of
the 1964 Civil Rights Act.
Soon after the PDA’s enactment, the Court began issuing major rulings enforcing
the law’s prohibitions on pregnancy discrimination. Once the Court began
enforcing the PDA, it stopped invoking Geduldig in equal protection
cases. The Court has not issued a single majority opinion (aside from Dobbs)
invoking Geduldig to interpret the Equal Protection Clause since it
began enforcing the PDA in the late 1970s.

In more recent equal protection decisions, the Court has
explicitly repudiated Geduldig’s reasoning. In 1996, in United States
v. Virginia,
the Court explained that it had come to understand that women are entitled to
be treated as men’s equals notwithstanding “[i]nherent differences” between the sexes. The
Court explained that laws that classify on the basis of sex “may be used to
compensate women ‘for particular economic disabilities [they have] suffered,’
to ‘promot[e] equal employment opportunity,’ [and] to ‘advance full development
of the talent and capacities of our Nation’s people.’” But, the Court warned,
“such classifications may not be used, as they once were, to create or
perpetuate the legal, social, and economic inferiority of women.”

The Court made clear that pregnancy is the main “inherent
difference” involved in this analysis by citing a state law governing pregnancy
(a maternity leave benefit, upheld under the PDA in California Federal
Savings & Loan Ass’n v. Guerra) as a paradigmatic example
of a sex classification that is constitutional because it advances women’s
equality. The Court explained in
this passage in Virginia that equal protection does not require the
state to ignore the physical reality of pregnancy, but that laws regulating
pregnancy must be designed to promote equal opportunity and may not perpetuate
women’s subordination. Eschewing Geduldig’s formalism, the Court in Virginia
reasons about laws regulating pregnancy in a way that takes account of social
context, asking whether the regulation promotes equal opportunity or
perpetuates the inferiority of women.

The Court echoed and expanded on these principles in 2003, in
Nevada Department of Human Resources v. Hibbs. The Court held in Hibbs
that Congress could enforce the Equal Protection Clause by enacting the family
leave provisions of the Family and Medical Leave Act to redress the
stereotyping and exclusion of pregnant workers. Chief Justice Rehnquist held
that Congress’s provision of family leave was an appropriate means of enforcing
equal protection because many states’ maternity leave policies were “not
attributable to any differential physical needs of men and women, but rather to
the pervasive sex-role stereotype that caring for family members is women’s
work.” The Hibbs Court
echoed Congress’s observation that, “[h]istorically, denial or curtailment of
women’s employment opportunities has been traceable directly to the pervasive
presumption that women are mothers first, and workers second,” and that “[t]his
prevailing ideology about women’s roles has in turn justified discrimination
against women when they are mothers or mothers-to-be.” This reasoning—about the
central role the regulation of pregnancy has played in the deprivation of equal
protection for women—rejects the logical contortions the Court engaged in half
a century ago to exclude laws regulating pregnancy from constitutional review. Hibbs
emphasized not only that laws regulating pregnant women may constitute sex
discrimination, but that redress of such discrimination is a core concern of
sex-based equal protection law.

How does Dobbs grapple with these legal developments?
It doesn’t. In the passage in Dobbs addressing the applicability of
equal protection doctrine to abortion regulation, Justice Alito steadfastly
avoids any mention of Virginia or Hibbs. Instead, he reaches back
to Geduldig—a case decided fifty years ago, before the development of
modern sex-based equal protection law—and insists that that old case “squarely
foreclose[s]” the application of
equality doctrine to abortion. It is an aggressive move, this erasure of the
two most important constitutional sex discrimination cases of the last thirty
years. One of the reasons it’s aggressive is that erasing Virginia and Hibbs
not only undermines the right at issue in Dobbs, it threatens to reverse
decades of development in sex-based equal protection law.

The Court’s discussion of equal protection in Dobbs is
dicta—but there are consequences to this kind of revisionism. Already the Sixth
Circuit has relied on this dicta in breaking with other federal courts and
upholding two state bans on gender-affirming medical treatments for transgender
minors. Chief Judge Jeffrey Sutton
repeatedly cites Dobbs and Geduldig in his majority opinion for
the proposition that sex-based equal protection law “does not apply in the
context of medical procedures unique to one sex or the other.” He very tellingly observes
that the Supreme Court has articulated this approach to “real differences”
twice: “One year ago [in Dobbs], and nearly fifty years ago [in Geduldig].” Like the Court in Dobbs,
he omits any mention of the legal developments that occurred in the intervening
half-century—at the Supreme Court and in his own Circuit. Sutton posits that
laws banning transgender girls from taking estrogen and transgender boys from
taking testosterone are akin to laws regulating pregnant women: all these laws
regulate medical procedures unique to one sex and thus raise no equal protection
concerns. These are precisely the kind of logic games, stripped of any social
context, Dobbs encouraged when it revived Geduldig and disregarded
critical developments in sex-based equal protection law over the last fifty
years.

The central aim of this Essay is to show that there is a
considerable amount of equality-related work occurring in the Court’s new
history-and-tradition cases. Sometimes, as in Rahimi, that work is
buried within the Court’s historical analysis; sometimes, as in Dobbs,
it rises to the surface. Much of this Essay is devoted to showing that
reasoning about equality—whether buried or on the surface—can and often does
affect the outcome of history-and-tradition cases. The Court frames its
analysis in terms of history, but in many cases, conceptions of equality are
what actually determine whether a right gets protected or a regulation stands.

This final Section shows that this process is a two-way
street. Judicial conceptions of equality influence the outcome of
history-and-tradition cases. But the equality work that occurs in
history-and-tradition cases can also boomerang back and influence equal protection
law itself. As Dobbs illustrates, the Court need not issue any formally
precedential statements about equality to work a change in equal protection
law. Change can also occur through a kind of erosion, a subtle undermining of
the foundation. When the Court next takes up an actual equal protection
case—particularly if that case involves gender or sexuality—we may find the
protections in these areas are not as robust as they once seemed.

Conclusion

There is a substantial (and still growing) literature that
criticizes originalist and traditionalist methods of interpretation for
insisting that the Constitution’s meaning can be determined only by consulting
the dominant views of the slave-owning, patriarchal society the United States
used to be. Racial minorities,
immigrants, women, and many other people now viewed as equal members of
American society were not equally represented at the time our Constitution was
written and our eighteenth- and nineteenth-century regulatory traditions were
constructed. These people did not have an equal say in shaping the “original
public meaning” of our laws (and our methods for determining “original public
meaning” are not good at picking up their voices). To locate the Constitution’s
meaning solely in the distant past is to perpetuate this exclusion. It is not
value-neutral to turn to a white supremacist, patriarchal society to determine
the rights of people of color and women today.

This Essay adds another dimension to this critique by showing
that, in fact, even the most traditionalist courts do not actually adhere to
history and tradition with any degree of consistency. American society has
changed too much in the centuries since the Constitution was drafted for that
to be possible. The Constitution’s framers and ratifiers engaged in too many
practices and had too many views we now consider abhorrent for
history-and-tradition doctrine to function in the way the Court suggests.
Justice Kagan accused Zackey Rahimi’s lawyer of running away from the
implications of history-and-tradition doctrine. But we are all like that
lawyer. None of us can consistently abide the implications of this doctrine.

That is generally a cause for celebration—a significant
marker of social progress. But it presents a substantial problem for
history-and-tradition doctrine. Courts applying this doctrine need to figure
out how to move with the times without admitting that they are doing so. The
result is a lot of maneuvering in the dark—adjusting levels of generality and
characterizing historical traditions in ways that silently incorporate (or fail
to incorporate) current understandings of equality, while pretending to defer
to our ancestors. This practice transfers an enormous amount of power from the
people and their elected representatives to the courts. It enables judges to
shape the law to suit their own conceptions of liberty and equality without
having to provide reasons for their differential handling of historical
traditions or to justify their differential treatment of various rights and
groups.

Justice Scalia once criticized judicial practitioners of
living constitutionalism for openly departing from history and tradition and explicitly
stating their reasons for doing so. He claimed that the fact that “such
usurpation is effected unabashedly, with ‘the judge’s
cards . . . laid on the table,’—makes it even worse.” He argued that, “[i]n a
vibrant democracy, usurpation should have to be accomplished in the dark.” The ascendance of
history-and-tradition doctrine has enabled such usurpation to be accomplished
in the dark. But it is far from clear that this is a positive indicator of the
health of our democracy.

McDonald/Wright Chair of Law, UCLA School of Law. Thank
you to Joey Fishkin and Reva Siegel for their extremely insightful comments on
earlier drafts of this Essay. Thanks to Kalina Kasmierczak for outstanding
research assistance. And a very big thank you to the editors of the Yale
Law Journal, especially Alex Johnson, for their editorial assistance and for
bringing this Collection into being.