The Supreme Court’s modern reliance on history and tradition has reshaped constitutional adjudication across multiple doctrinal areas, including Substantive Due Process, the Second Amendment, and the Religion Clauses. The Court has justified this methodology as a means of constraining judicial discretion by anchoring constitutional meaning in the past. Yet persistent disagreement within the Court reveals a threshold methodological problem largely left unexplained: which historical sources are eligible to define constitutional meaning.
This Note examines numerous Supreme Court decisions and identifies three recurring categories of historical sources used by the Court in its history-and-tradition jurisprudence: American, English, and non-Anglo-American Sources. It shows that the Court alternates among these source categories without articulating consistent criteria governing their eligibility, producing doctrinal inconsistency and complicating application by lower courts. In response, this Note proposes a modest framework for historical source eligibility that emphasizes source hierarchy and temporal baselines through principled explanation. Clarifying these threshold methodological judgments would preserve history’s constraining function while improving coherence and predictability in constitutional interpretation.
To read this Note, please click here: Whose History, Which Tradition? An Examination of Historical Sources in the Supreme Court’s History-and Tradition Jurisprudence