Introduction
Law students are almost certain to encounter the phrase “history and tradition” in constitutional law. The phrase appears in cases about guns, abortion, and prayer at public high school football games. But what does “history and tradition” actually mean? Is history and tradition simply another name for originalism? Or is the turn to history and tradition part of a reconfiguration of constitutional pluralism by conservative justices? More radically, is there something genuinely new afoot: is traditionalism emerging as a distinctive approach to law?
It turns out that answering these questions is far from simple. We can begin with the remarkable spread of history-and-tradition tests across multiple areas of constitutional doctrine. Next, we examine an important methodological debate on the Supreme Court itself—between Justice Kavanaugh, the method’s most systematic judicial expositor, and Justice Barrett, who has pointedly observed that not all reliance on history is originalism. That debate opens onto a larger possibility: that we are witnessing the emergence of a new constitutional pluralism, in which text, precedent, and history and tradition function as the leading modalities of constitutional argument. Finally, we turn to theory, tracing traditionalism from Edmund Burke through Cass Sunstein’s Burkean minimalism to Marc DeGirolami’s traditionalism—the most fully developed account of history and tradition as a distinctive approach to constitutional law.
As always, this Lexicon entry provides an introduction to history and tradition in constitutional theory for law students, especially first-year law students, with an interest in legal theory.
The Doctrinal Turn to History and Tradition
The phrase “history and tradition” appears in Supreme Court opinions across multiple doctrinal areas, including substantive due process, the Second Amendment, the Establishment Clause, and beyond. But the role of history and tradition varies. There are history-and-tradition tests, but historical practice also functions as a modality of constitutional argument or a factor in constitutional reasoning.
Although the ubiquity of “history and tradition” might seem like something new, the Supreme Court’s use of the phrase goes back decades. The first appearance in the United States Reports was in Justice Powell’s plurality opinion in Moore v. City of East Cleveland (1977), in which he stated that “the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.” Powell’s use of the phrase was echoed in Washington v. Glucksberg (1997), in which the Court articulated the principle that the Due Process Clause protects only those unenumerated rights that are “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Glucksberg used the formula as a limiting device: because assisted suicide was not deeply rooted in historical practice, there was no fundamental right to it. A quarter century later, Dobbs v. Jackson Women’s Health Organization (2022) made the Glucksberg test the centerpiece of its analysis, concluding that a right to abortion was not deeply rooted in the nation’s history and tradition—and overruling Roe v. Wade on that basis. After Dobbs, the deeply-rooted formula is the governing test for the recognition of unenumerated rights.
Another domain in which “history and tradition” has become prominent is the Second Amendment. In New York State Rifle & Pistol Association v. Bruen (2022), the Court discarded the two-step framework that the courts of appeals had developed—a framework whose second step involved means-end scrutiny—and replaced it with a test keyed entirely to text and history: when the Second Amendment’s plain text covers an individual’s conduct, the government must justify its regulation by demonstrating that it is consistent with the nation’s historical tradition of firearm regulation. Under Bruen, the government carries its burden by identifying historical analogues—founding-era regulations relevantly similar to the modern law. United States v. Rahimi (2024) then clarified—and softened—the test: the question is whether the challenged regulation is consistent with the principles that underpin the historical tradition, not whether it has a historical twin. Most recently, Wolford v. Lopez (2026) struck down Hawaii’s ban on carrying firearms onto private property open to the public without the owner’s permission, holding that the state’s proffered historical analogues were not relevantly similar to the modern law.
Next, consider the role of “history and tradition” in the Supreme Court’s recent Establishment Clause cases. For decades, Establishment Clause doctrine was governed—at least nominally—by the three-part test of Lemon v. Kurtzman. But in Town of Greece v. Galloway (2014) and American Legion v. American Humanist Association (2019), the Court increasingly resolved cases by reference to historical practices, upholding legislative prayer and a longstanding memorial cross on the strength of tradition. Kennedy v. Bremerton School District (2022) made the transformation official: the Court announced that Lemon had been abandoned and that Establishment Clause claims must be resolved by “reference to historical practices and understandings.”
Kavanaugh and Barrett: A Methodological Debate
The rise of history and tradition has produced a revealing methodological debate within the Supreme Court itself. The debate’s leading figures are Justice Kavanaugh and Justice Barrett, who have articulated very different conceptions of the role that history and tradition should play in the Court’s reasoning.
Justice Kavanaugh has been the principal proponent of “history and tradition” in recent years. His concurrence in United States v. Rahimi is the fullest statement: constitutional interpretation, he argued, properly relies on text, pre-ratification history, post-ratification history, and precedent—and where the text is vague or broadly worded, history is a more legitimate and more determinate guide than judge-made balancing tests or judicial policymaking. On Kavanaugh’s account, the turn to history and tradition is a turn away from the tiers of scrutiny and interest-balancing that dominated late-twentieth-century constitutional law. History constrains; balancing empowers. A judge who follows historical practice is enforcing the law’s continuity; a judge who balances interests is legislating.
Justice Barrett has articulated a contrasting view of the role of history and tradition. In her Vidal v. Elster concurrence, and again in Rahimi, she pointedly observed that not all reliance on history is originalism. Original meaning, on her account, is fixed at ratification; evidence from before and shortly after ratification can illuminate that meaning. But post-ratification practice—“tradition”—is something different. When the Court treats a tradition of regulation as itself dispositive of constitutional meaning, without connecting that tradition to the original meaning of the text, it is no longer doing originalism. Tradition, she wrote in Vidal, is “not an end in itself.” A longstanding practice may be evidence of original meaning, or it may reflect nothing more than the accumulated inertia of unchallenged laws. For Barrett, the crucial question—one the Court has not squarely answered—is why tradition should matter: is it evidence of meaning, a form of liquidation, or an independent source of constitutional law?
The Kavanaugh–Barrett exchange may be more than a quarrel among originalists. It exposes a fault line that runs through the entire history-and-tradition enterprise. If tradition matters only as evidence of original meaning, then history and tradition is a tool of originalism—and post-ratification practice should yield whenever it conflicts with the text’s original meaning. But if tradition matters in its own right—if enduring practice has constitutional authority simply because it has endured—then something else is going on. That something else is the subject of the remainder of this entry.
A New Constitutional Pluralism?
Let’s step back from the details of the doctrine and the debate. Some constitutional theorists have argued that constitutional practice is pluralistic: courts and lawyers argue from multiple modalities—text, structure, history, precedent, consequences, and national ethos, in Philip Bobbitt’s famous catalog. No single modality governs; constitutional argument is a practice of deploying and reconciling several forms of argument. (For more on this topic, see Legal Theory Lexicon 100: Constitutional Pluralism.)
Here is one possibility: the history-and-tradition cases suggest that the Roberts Court may be developing a distinctive conservative version of constitutional pluralism. The modalities that now do the heavy lifting in the Court’s constitutional cases are three: text, precedent, and “history and tradition.” This version of constitutional pluralism is conservative in the following sense: it elevates the backward-looking modalities, and excises the forward-looking modes of constitutional argument.
If this reading is correct, the turn to history and tradition is neither originalism nor a wholly new method. It is a reweighting of the modalities of constitutional argument—a new configuration of constitutional pluralism in which “history and tradition” plays a decisive role. Whether this configuration is stable, and whether it can be justified, are questions that require a theory of why tradition should matter at all.
Traditionalism as a General Framework: Burke, Sunstein, and DeGirolami
Why should tradition matter in constitutional law? One answer in the Anglo-American tradition comes from Edmund Burke, the eighteenth-century statesman and philosopher. Burke’s Reflections on the Revolution in France (1790) is the classic statement. Burke distrusted abstract reason as a guide to political life. The stock of reason in any single individual—or any single generation—is small, he argued, and individuals would do better to avail themselves of “the general bank and capital of nations, and of ages.” Long-standing institutions and practices embody the accumulated wisdom of many generations: they have been tested by experience, adjusted by trial and error, and refined in ways that no single mind could design or fully articulate. On the Burkean view, an enduring practice carries a presumption of wisdom precisely because it has endured—many generations have found it workable, and its latent functions may exceed what any participant can state. Tradition, for Burke, is the repository of accumulated wisdom—a deep well of practical reason.
Cass Sunstein brought Burke into contemporary constitutional theory. In his article Burkean Minimalism, Sunstein described a distinctive style of constitutional decision: Burkean minimalists favor small, incremental steps; they prefer rulings that are narrow rather than wide and shallow rather than deep; and—crucially—they treat long-standing practices and traditions, rather than abstract theories or moral readings of the Constitution, as the touchstone of constitutional legitimacy. Sunstein contrasted Burkean minimalism with rationalist alternatives on both left and right: with progressive perfectionism, which tests traditions against moral theory, but equally with ambitious forms of originalism, which are willing to overturn settled practice in the name of recovered original meaning. The Burkean minimalist is skeptical of both—of theories that would remake constitutional law from the top down, whatever their political valence.
Most recently, Marc DeGirolami has developed the most systematic account of tradition’s role in contemporary constitutional law—what he calls “traditionalism.” In First Amendment Traditionalism and Traditionalism Rising, DeGirolami identifies traditionalism as a distinct interpretive method with three characteristic commitments. First, the object of interpretation is concrete practices—enduring patterns of conduct and regulation—rather than abstract principles or semantic meanings. Second, practices qualify as constitutionally authoritative in virtue of their age, their longevity or endurance, and their density—the extent to which they have been widespread and consistently maintained across jurisdictions and over time. Third, endurance does normative work: the presumption of a practice’s constitutionality strengthens as the practice persists, before, at, and after ratification. On DeGirolami’s account, traditionalism is genuinely distinct from originalism: the originalist fixes constitutional meaning at ratification, while the traditionalist treats ratification as one moment in a longer continuity of practice. And traditionalism is distinct from Burkean minimalism too: where Sunstein’s Burkean prizes narrow, incompletely theorized rulings, the traditionalist is willing to announce broad, practice-based rules—Bruen and Kennedy are anything but minimalist. DeGirolami argues that traditionalism, not originalism, is the best description of what the Roberts Court is actually doing in its history-and-tradition cases—a descriptive claim with normative implications. DeGirolami’s theory of traditionalism raises the question whether tradition’s authority can be justified on its own terms and suggests the possibility that “history and tradition” might be the master principle of constitutional theory: one modality that rules them all.
Critiques
Traditionalism has critics on both the right and the left.
The first critique comes from originalists. If the constitutional text’s original public meaning is the law, then post-ratification practice has no independent authority: tradition is admissible only as evidence of original meaning, and it must yield whenever the two conflict. On this view—pressed by Justice Barrett within the Court and by originalist scholars outside it—traditionalism is not a refinement of originalism but a rival to it, and a dangerous one, because it substitutes the accumulated behavior of government actors for the ratified text. A long tradition of regulation may show nothing more than a long tradition of constitutional violation.
The second critique comes from progressive constitutional scholars, most prominently Reva Siegel. On this account, the Court’s history-and-tradition jurisprudence is selective: the justices choose which historical periods, which practices, and which levels of generality to consult, and those choices track conservative outcomes rather than neutral method. Siegel has argued that Dobbs’s claim to restore the democratic process concealed the decision’s roots in a decades-long political mobilization—and that history-and-tradition tests function to entrench the results of that mobilization in the language of judicial restraint. The charge, in short, is that “law office history” licenses motivated reasoning while disclaiming responsibility for present-day judgments.
The third critique asks: whose traditions? The historical practices that history-and-tradition tests consult were formed when women could not vote, Black Americans were enslaved or disenfranchised, and other groups were excluded from the political community altogether. To give those practices constitutional authority, the critique runs, is to entrench the exclusions under which they were made. A method that measures rights by “deeply rooted” traditions will systematically disadvantage those whose interests the tradition-makers ignored—a point pressed forcefully in the Dobbs dissent and in the scholarly literature on the gendered and racialized character of the historical record.
Conclusion
Return to the questions with which we began. Is history and tradition simply another name for originalism? The Kavanaugh–Barrett debate suggests that the answer is no—or at least, not necessarily. Tradition can serve as evidence of original meaning, but the Court’s history-and-tradition cases frequently treat enduring practice as authoritative in its own right, and that is something originalism cannot easily explain. Is the turn to history and tradition a reconfiguration of constitutional pluralism? Quite possibly: text, precedent, and history and tradition now function as the leading modalities of the Roberts Court’s constitutional jurisprudence—a conservative pluralism that elevates the backward-looking forms of argument and excises the forward-looking ones. And is there something genuinely new afoot? DeGirolami’s traditionalism makes the case that there is: a distinctive interpretive method, with Burkean roots, that treats concrete, enduring, dense practices as the very substance of constitutional law.
Whether traditionalism can bear the weight now being placed upon it remains to be seen. The critiques are serious: originalists deny that tradition has independent authority; progressives charge that the method is selective; and the whose-traditions objection asks why practices formed under conditions of exclusion should govern an inclusive republic. But whatever one’s verdict, the phenomenon itself is undeniable. History and tradition is no longer a phrase confined to a single doctrinal formula. It is a method—perhaps a theory—on the rise. Law students who master it will understand a great deal about the constitutional law of the present moment; and they will be well equipped to evaluate the constitutional law that is coming.
Related Lexicon Entries
Legal Theory Lexicon 019: Originalism
Legal Theory Lexicon 030: Textualism
Legal Theory Lexicon 100: Constitutional Pluralism
Legal Theory Lexicon 109: History and Conceptual Translation
Legal Theory Lexicon 117: Constitutional Theory
Bibliography
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Baude, William. Constitutional Liquidation, 71 Stan. L. Rev. 1 (2019).
Bobbitt, Philip. Constitutional Fate: Theory of the Constitution. New York: Oxford University Press, 1982.
Burke, Edmund. Reflections on the Revolution in France (1790). Oxford World’s Classics ed. (L.G. Mitchell ed.). Oxford: Oxford University Press, 2009.
DeGirolami, Marc O. First Amendment Traditionalism, 97 Wash. U. L. Rev. 1653 (2020).
DeGirolami, Marc O. Traditionalism Rising, 24 J. Contemp. Legal Issues 9 (2023).
Girgis, Sherif. Living Traditionalism, 98 N.Y.U. L. Rev. 1477 (2023).
McConnell, Michael W. Tradition and Constitutionalism Before the Constitution, 1998 U. Ill. L. Rev. 173.
Siegel, Reva B. Memory Games: Dobbs’s Originalism as Anti-Democratic Living Constitutionalism—and Some Pathways for Resistance, 101 Tex. L. Rev. 1127 (2023).
Siegel, Reva B. The History of History and Tradition: The Roots of Dobbs’s Method (and Originalism) in the Defense of Segregation, 133 Yale L.J. Forum 99 (2023).
Strauss, David A. Common Law Constitutional Interpretation, 63 U. Chi. L. Rev. 877 (1996).
Sunstein, Cass R. Burkean Minimalism, 105 Mich. L. Rev. 353 (2006).
Link to the Most Recent Version of this Lexicon Entry
Legal Theory Lexicon 120: History and Tradition in Constitutional Theory
Created July 19, 2026.
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