Supreme Court Turns to Historical Analogues to Reshape Constitutional Law
The Roberts Court’s latest term shows a growing reliance on a “history and tradition” test, using historical analogues to decide major cases on guns, abortion and other rights.
The latest Supreme Court term highlighted a shift toward framing its most consequential rulings as exercises in constitutional archaeology, employing a “history and tradition” test that asks whether a modern regulation mirrors practices from the nation’s founding era. Cases like Wolford v. Lopez, which struck down Hawaii’s gun restrictions, and Dobbs v. Jackson, which eliminated the constitutional right to abortion, illustrate how the Court has replaced conventional balancing tests with this historical inquiry.
Originating in the 1997 Glucksberg decision to limit substantive due-process claims, the test has migrated to Second Amendment and voting-rights jurisprudence, effectively becoming a tool for overturning progressive precedents. Scholars note that the methodology still requires judges to make discretionary choices about which historical period or analogues to consider, undermining its claim to objectivity. The analysis warns that if the test continues to expand, it could endanger a wide array of unenumerated rights and enable the Court to strike down federal and state statutes that conflict with its preferred outcomes.
Why it matters
The Court’s new historical test could reshape constitutional rights and overturn existing laws.
How the sides frame it
MODERATE AGREEMENTBoth camps criticize the Court’s new “history and tradition” test, but left-leaning coverage frames it as a weapon to strip away modern rights, while right-leaning coverage portrays it as a shift toward constitutional archaeology that overturns progressive precedents.
LEFT
Frames the test as a conservative weapon that abandons ordinary legal reasoning and threatens rights not rooted in early history.
RIGHT
Frames the test as a turn to constitutional archaeology that serves to overturn progressive precedents.
The left emphasises
- a "weapon against modern statutes"
- removes judicial judgment from the process
- could jeopardize rights such as contraceptive access, same-sex marriage, and the Voting Rights Act
The right emphasises
- a shift toward "constitutional archaeology"
- the test has become a tool for overturning progressive precedents
- originated in the 1997 Glucksberg decision and now reaches gun-rights and voting-rights cases
In this story