Semi-Weekly Discussion Thread - June 27, 2022

Can you elaborate on what you mean by the "history and traditions test" or link me to an article or opinion where you're pulling that language from? The short answer to your question is no, history and tradition has always been an integral consideration in constitutional law. But, it's hard to answer fully without knowing specifically what you're talking about.

There is no singular history and tradition "test." The nature of the historical consideration will vary depending on the nature of the legal issue being addressed. For example, when the legal issue deals with the meaning of a constitutional provision, the historical analysis focuses on the historical context of the passage of the provision, and when the legal issue deals with the existence of an unenumerated right the historical analysis will focus on whether the purported right was common practice over the history of our civilization.

I think the thing that is unique to this term, is that opponents of originalism has focused memeing the concept of "history and tradition." They claim that there is some narrow test, and then claim the narrow "test" isn't consistently applied. But interestingly, these opponents never clearly express what this supposed test. From what I can tell they are just trying to create the vague sense that the test is unfair.

/r/tuesday Thread Parent