The U.S. Supreme Court has entered a new era of debate regarding the appropriate use of history and tradition in constitutional interpretation. Justices Thomas and Barrett established the initial terms of that debate in New York State Rifle & Pistol Association, Inc. v. Bruen (2022), framing the issues as whether courts should interpret individual rights provisions based on their meaning when the Bill of Rights was ratified in 1791 or when the Fourteenth Amendment was adopted in 1868, and what weight post-ratification practice should carry in determining original meaning. The exploration of these issues sparked broader discussions that appear to be culminating in a grand question: whether analogical reasoning based on historical precedent should replace judicial balancing tests in fundamental rights jurisprudence. This Article traces the contours of the debate to date, examining recent Supreme Court decisions that reflect points of consensus and divergence between the Justices. It analyzes their differing approaches to constitutional liquidation, the use of historical analogues, and the broader implications for the Court’s evolving methodology. As the Court increasingly privileges historical analysis over means-ends scrutiny, the resolution of these methodological questions will shape the future of constitutional adjudication.
Jason Buhi (Thu,) studied this question.