Gage A. Johnson (Vermont Law & Graduate School) has published The Fallacies of Originalism: Why Treating History and Tradition Alone as Dispositive Is Not Superior to the Tiers of Scrutiny, 74 Clev. St. L. Rev. 439 (2026). Here is the abstract:
The goal of this Article is to develop the current history and tradition standard. I argue that the Bruen use of history and tradition is not a more principled or better way of interpreting the Constitution than the infamous tiers of scrutiny. This argument is supported by analyzing the way the Court has used history and tradition in reviewing restrictions on the Second Amendment and the push for it to be used under the First Amendment. I argue that Justice Thomas’s rigid application of history and tradition is essentially an ends-justifying-the-means analysis that is no different than the so called “judicial policymaking” of the Warren Court. My solution to this problem is to apply a more flexible history and tradition standard that Justice Barrett has written about in the Court’s cases. Her approach places an emphasis on original meaning but in a way that is less confusing to lower courts and more faithful to the Constitution and the history of our Nation.
Recommended.
Johnson maps the Thomas–Barrett divide clearly and identifies the circuit court trajectory in Williams and Bianchi accurately. My concern is one of framing. The piece presents strict-analogue matching, Barrett’s principle-based approach, and the tiers of scrutiny as rival methods of constitutional interpretation. They are not. They are candidate implementing rules in the construction zone—doctrines that determine the legal effect of constitutional text whose communicative content underdetermines the outcome in particular cases. This relocation strengthens Johnson’s argument rather than weakening it. His charge that Thomas engages in ends-justifying-the-means reasoning, pitched at the interpretive level, either proves too much or begs the question: every construction doctrine requires judgments that the text alone does not dictate. Pitched at the construction level, the charge becomes an argument about which implementing rule best performs on construction-zone criteria—predictability, administrability, workability for lower courts, and fidelity to communicative content. On those criteria, Johnson’s own evidence is decisive: intra-Court disagreement in Rahimi over what counts as “relevantly similar,” and the migration of the Fourth and Sixth Circuits toward principle-based analogical reasoning, together suggest that strict-analogue matching is not doing the work a good construction doctrine should do.
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