By Kermit Roosevelt III [July 5,2022]
Those who do not learn from history, George Santayana famously wrote, are doomed to repeat it. But today’s Supreme Court majority seems to have a different idea of the lessons of the past. Increasingly, they are saying that we must learn history because the Constitution demands that we repeat it.
Two cases decided in the past few weeks show us this point in stark relief. In Dobbs, Justice Alito wrote that the question of whether a particular liberty that is not explicitly mentioned in the Constitution counts as a fundamental right, deserving of constitutional protection, is to be settled by historical analysis. The Constitution protects only rights that are “deeply rooted in this Nation’s history and tradition.” Abortion, he said, does not pass this test. So, regardless of how important it might be today to women’s ability to participate as full and equal citizens in the life of the nation, regardless of how oppressive it might be to force upon them the role of mother, the Constitution offers no protection.
In Bruen, Justice Thomas deployed historical analysis with a slightly different spin. When you’re dealing with a right that is enumerated in the Constitution, he said, or at least when you’re dealing with the Second Amendment, the only restrictions allowed are those that have a historical pedigree: those “consistent with the Nation’s historical tradition of firearm regulation.” A concealed-carry permit regime that required people to show special need, he said, does not pass this test. So regardless of how different circumstances are from the 1860s, or the 1790s, regardless of whether people live differently, or guns fire more rapidly, or magazines hold more bullets, the government is limited to the set of solutions deployed hundreds of years ago, or those that judges are willing to see as a “proper analogue.”
Neither of these approaches is originalism. Originalism does not mean looking to historical practice. It means adhering to a constant meaning unless the Constitution is changed by amendment. The Due Process Clause might mean that judges should identify fundamental rights by asking what rights were recognized in 1868 or 1791. Or it might mean that judges should invalidate exercises of government power that are arbitrary or oppressive—determined in light of contemporary facts and values. Originalism tells us to stick with whichever of those meanings was the original understanding of the Due Process Clause. It does not tell us which of these meanings is correct, and the Dobbs majority makes no effort to establish that its interpretation is right. As for Bruen, the idea that the Second Amendment was understood to freeze the government’s ability to respond to new challenges by restricting it to the regulations that had been enacted in the past is on its face absurd, and again the majority makes no effort to show that its interpretation is right.
So originalists should not be happy with these decisions, which smuggle in contested and implausible interpretations under the veil of self-proclaimed judicial modesty. Originalists often claim that their methodology constrains judges, but recent decisions have demonstrated the obvious fact that historians disagree about how to interpret the past. Motivated judges can easily cherry-pick the historical record to support their preferred outcomes—to say nothing of the question of what is a “proper analogue.” Americans should be aghast. The methodology that the Court has announced has never before been the conventional approach to constitutional interpretation. It is an imposition by five judges, and a terrible one.
It is easy enough to see this with Bruen. In most constitutional cases, if the government seeks to restrain or infringe on an individual’s constitutional rights—freedom of speech, for instance, or free exercise of religion—the Court will balance the significance of the infringement against the government’s interest. It will do so using one of what constitutional lawyers call the tiers of scrutiny—more or less demanding tests, adapted to the different circumstances in which constitutional issues present themselves. Most of the time, if the government can show that what it is doing is necessary to promote a compelling interest (like public safety), it will win.
But not according to Bruen—at least not with the Second Amendment. Instead, the question is simply whether the government’s regulation is, or is analogous to, one that has been used in the past. The shortcomings of this approach are screamingly obvious. Society changes. Technology changes. New problems arise that require new solutions. The idea that a 21st century government should be limited to the toolkit of the 1860s is flatly absurd.
There is a similar problem with Dobbs, and though it is more subtle it is in some ways worse. If you look to history to see what rights were recognized, you will find that society generally gave people the rights it thought they needed to fulfill their appropriate roles. A society that thinks women are capable of and entitled to full and equal participation in the life of the nation will have a set of views about the rights they need to do so. That is, aspirationally, today’s society. But it is not the society of 1868.
In 1872, Myra Bradwell took a case to the Supreme Court. She wanted to practice law, but the state of Illinois excluded women. Was this unfairly discriminatory? Did it deny her the fundamental rights to which she was entitled? No, said the Supreme Court. And in a concurring opinion that has become infamous, Justice Bradley explained why. “The natural and proper timidity and delicacy which belongs to the female sex,” he wrote, “evidently unfits it for many of the occupations of civil life. … The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother.” The through line to Dobbs is clear: if women are destined and fit only to be mothers, forcing motherhood upon them does not violate their rights.
The Dobbs approach tells us that our understanding of fundamental rights—of the rights that every person must have to play their appropriate role in society, to be recognized as a full and equal citizen—is to be determined by an 1860s understanding of those roles. The consequences of that are disastrous for women, for Black people, for the LGBTQ community, for non-Christians—basically for everyone except the white Christian men who held power then. Again, this is not originalism. This is a judicial choice to identify a set of congenial values and insist that they are inscribed in our highest law. It is to say that the Constitution, which should be the pantheon of American values, contains instead all the ignorance and prejudices of the past that the true heroes of our history fought so hard to overcome. That makes a mockery of their sacrifices and turns their victories to ash. It is a betrayal of the American experiment and an embarrassment to us all.
Roosevelt is a professor of constitutional law at the University of Pennsylvania Carey School of Law and the author of The Nation that Never Was: Reconstructing America’s Story.