The “historical tradition” of handgun regulation, Justice Thomas argued, established the limits of the right to keep and bear arms. He noted that the practices of regulation “from before, during and even after the founding” of the United States indicated “no such tradition in the historical materials,” which suggested that a long, unbroken line of tradition, stretching from medieval England to early 20th century America, was at odds with New York’s law. The opinion granted the existence of scattered 19th-century regulations akin to New York’s, but argued that these were dwarfed by the dearth of analogous traditions of gun regulation over time and across state and local communities.
One can see a similar traditionalist approach in Dobbs, where Justice Alito, writing for the court, examined the government practices of abortion regulation before, during and after ratification of the 14th Amendment, concluding that there is no constitutional right to abortion in part because there is “an unbroken tradition of prohibiting abortion” that persisted “from the earliest days of the common law until 1973.”
Likewise, in Kennedy v. Bremerton School District, the Supreme Court decided in 2022 that a public school football coach who prayed on the field after games was not in violation of the Establishment Clause by holding, in an opinion by Justice Neil Gorsuch, that this was not analogous to prayer practices long considered Establishment Clause violations. And in the unanimously decided case Houston Community College System v. Wilson, the court in 2022 held that “long settled and established practice” determined that elected bodies do not violate their members’ freedom of speech when they censure one of their members.
For some critics, the invocation of “tradition” sets off alarm bells. After all, our country looks very different today, demographically and otherwise, than it did hundreds of years ago, when political power was held by relatively few and denied to others for illegitimate reasons. These critics ask how well traditionalism deals with the contemporary realities of American democracy.
The answer to this legitimate question is: Compared to what? Consider again originalism and living constitutionalism. These approaches, different as they are from each other, are both suited to elite actors working at the nerve centers of legal and political power. Both depend on the preferences and findings of the legal professional class. Originalism privileges the centuries-old writings of illustrious figures of the founding or Reconstruction era as determined by today’s most brilliant legal historians and theorists. Living constitutionalism privileges the high ideals of today’s most prominent academics and judges.