Daniel B. Rice (University of North Carolina School of Law) has posted Tradition without Text? (75 Duke Law Journal Online __ (forthcoming 2026)) on SSRN. Here is the abstract:
It is no secret that the Dobbs framework dooms virtually all liberty claims brought under the ambit of due process. Yet for all their devotion to “historical understandings of ordered liberty,” the Justices show little interest in exploring actual historical beliefs about the bounds of acceptable coercion. Dobbs takes no account of the underlying dynamics that caused only a tiny fraction of those beliefs to be reduced to writing. As a result, constitutional safeguards become less reliable as state intrusions become more intensely tyrannical. And Dobbs overlooked the concept of civic obligation, whose modern erasure thwarts any serious effort to grasp the historical content of ordered liberty. The Justices’ avowed preference for constraint thus ends up subverting the normative case for heeding past guidance. Dobbs’s “history and tradition” is a legalistic concoction that badly misrepresents early Americans’ lived experiences.