William Baude is a law professor at the University of Chicago.
The court finds itself using history for both legal and practical reasons. History is inextricably connected to law. Our Constitution and statutes were enacted in the past, and amended in the past, and so understanding their content is an inherently historical endeavor. History, practiced properly, also can supply objectivity, giving the justices a basis for deciding beyond their personal views and the controversies of the day.
These uses of history, ironically, provide support for powerful legal change. If the court is to overturn nearly 50 years of precedent, as it did in Dobbs v. Jackson Women’s Health Organization, it points to something even older and more deeply rooted than Roe v. Wade itself — the history and tradition surrounding the Constitution. So, too, if the court is to second-guess the gun-control legislation of modern jurisdictions, as it did in New York State Rifle & Pistol Association v. Bruen, it does so by pointing to the Constitution’s text and history.
The use of constitutional history has been challenged as inherently regressive. Why should today’s public policy decisions owe anything to past eras when women or people of color were excluded from power? This argument misses the point. In cases like Dobbs, the court seeks to free government from constitutional constraint, arguing that today’s governing majorities are entitled to make their own choices about abortion policy, no matter what dead White men in wigs may have thought. In cases like Bruen, the court relies on historical arguments that the right to keep and bear arms was especially vital to newly freed African Americans in the wake of the Civil War. And in other cases, the court has used history to vindicate the rights of criminal defendants and other unpopular groups.
Another critique is that judges cannot do history well, and that their judgments will inevitably be results-oriented. The justices went to law school, not graduate programs in history, and only a few of their law clerks have such training. Historians frequently condemn the court’s historical claims as oversimplified, overconfident and twisted to reach the desired outcome. This, too, misses the point. What the Supreme Court is ultimately deciding is law, not history for its own sake. It turns to the historical record to better understand the text that it is entrusted with interpreting, and uses legal procedures to do it — a traditional performance of the craft of judging.
That the court is doing law, not just history, also responds to accusations that the court is inconsistent in which historical periods it emphasizes. The ultimate question is what our most fundamental law provides, which means focusing primarily on the periods when the Constitution was written and amended, and only secondarily on subsequent interpretations. The court is not trying to provide a broader history of our society’s attitudes toward guns, sex or anything else. Indeed, that is not its role.
The real issue is not whether the court should be using history but whether there are legally relevant pieces of history that it is missing. There is reason to worry about that in both Dobbs and Bruen. In Dobbs, the court makes it hard to recognize rights that are not explicitly enumerated in the Constitution. But another clause of the Constitution, which the court relegates to a footnote, protects the “privileges or immunities of citizens of the United States” against state abridgment. History suggests that these privileges or immunities include unenumerated rights of citizens, maybe even rights that are recognized over time. If so, Dobbs’s analysis is incomplete.
Meanwhile, in Bruen, the court refused to allow any kind of “interest balancing” of gun rights against public safety. But deeper historical research might support such balancing after all. At the Founding and during Reconstruction, many constitutional rights were subject to regulation in the name of the public good. Such arguments could support more regulation of Second Amendment rights than the court suggests.
These historical problems do not necessarily mean that Dobbs or Bruen reached the wrong result. But they could make a big difference to the scope of those decisions in coming decades.
This brings us to the broader lesson. In recent years, many critics of the court — including some dissenting justices — have ceded the initiative. They have tried to shield themselves behind precedents or to poke holes in the majority’s arguments without advancing a competing constitutional theory.
That is true even of recent dissents that engaged superficially on historical grounds. That will not be enough. The court’s increasing reliance on history creates an opportunity for those critics to provide their own rigorous account of our law and constitutional tradition. To seize that opportunity, they will have to make the best use of history, not try to escape it.