Introduction
The growing prominence of the history and tradition test has raised questions about how the Supreme Court evaluates historical laws and practices that would be unconstitutional today.
These questions encompass both long-standing and more recent concerns in constitutional interpretation. Scholars have long criticized originalist reasoning for involving a fraught exercise in evaluating competing historical evidence.
In the context of history and tradition analysis, this Comment labels this issue the “opposing traditions problem.”
The history and tradition test leads the Court to identify opposing historical traditions but inherently requires it to resolve the conflict by affirming a “singular historical tradition.”
More recently, scholars have begun to describe how history and tradition cases also create a “hidden equality” problem.
Professor Reva Siegel has commented that history and tradition analysis “seem[s] to acknowledge” that legislation constituting a tradition “would have to rest on constitutional grounds.”
Professor Cary Franklin has further argued that after courts first “identify the relevant tradition,” they engage in a “second (often unarticulated) step” to “determine whether that tradition is compatible with current understandings of equality.”
Building on this scholarship, this Comment makes the novel argument that these two problems in history and tradition cases are connected: The Court has resolved the opposing traditions problem through hidden equal protection analysis.
In New York State Rifle & Pistol Ass’n v. Bruen
and Dobbs v. Jackson Women’s Health Organization,
the Court evaluated which conflicting historical traditions of guns and abortion should constitute this nation’s singular tradition.
This analysis raised equality concerns, which the Court addressed only implicitly—through “shadow” reasoning that resembled equal protection standards of review.
This Comment shows how Bruen and Dobbs applied this hidden equal protection analysis to create the illusion of a uniform historical tradition. Because the Court did not articulate a clear method for addressing these dual problems, the history and tradition test enabled the Court to quietly depart from modern sex equality precedent and undermine constitutional protections against sex-based discrimination.
Part I begins by laying out the opposing traditions and hidden equality problems. Extending the first analytical step of Professor Franklin’s framework (determining “the relevant tradition”),
Part I argues that Bruen and Dobbs each identified conflicting traditions but ultimately concluded that only one constituted “this Nation’s historical tradition.”
This opposing traditions problem implicated race-based equality concerns in Bruen and sex-based equality concerns in Dobbs. Scholars have also recognized a baseline assumption in history and tradition cases that “this Nation’s historical tradition” should not incorporate laws that would be deemed unconstitutional today.
Since historical regulations may be shaped by discriminatory ideas, the Court makes determinations about whether the traditions it identifies are consistent with equal protection.
These evaluations are often unacknowledged and made “implicitly, with little or no analysis or justification.”
This creates a hidden equality problem: The Court is hiding equality determinations in the shadow of history and tradition analysis.
Part II contributes to the newly developing literature on history and tradition cases by showing how the opposing traditions and hidden equality problems intersect.
Bruen and Dobbs identified opposing traditions of gun and abortion regulation that implicated the Equal Protection Clause through race- and sex-based classifications.
But in determining which of the conflicting historical traditions would constitute this nation’s singular tradition, the Court hid equality analysis behind its Second Amendment and Due Process Clause reasoning.
Professor Franklin has argued that judges use “a multitude of doctrinal mechanisms” when conducting hidden equality analysis in history and tradition cases.
Most notably, judges will “adjust the levels of generality at which they define the relevant historical tradition.”
This Comment offers a new framework to understand the Court’s implicit equality analysis in relation to its reasoning about opposing traditions. In Bruen, the Court struck past gun laws and practices out of this nation’s historical tradition by applying a hidden review of racial classifications that resembled strict scrutiny—labeled here “shadow strict scrutiny.” In Dobbs, the Court incorporated past abortion laws and practices into the historical tradition by applying a hidden review of sex-based classifications that resembled rational basis—labeled here “shadow rational basis.” These quiet determinations about equality enabled the Court to create the illusion of a uniform historical tradition.
This Comment reveals that Bruen and Dobbs failed to “adequately clarif[y]” how history and tradition cases should evaluate historical traditions that conflict or that raise equality concerns.
If history and tradition are here to stay,
courts need a clear framework for addressing these inevitable and intertwined problems. By not articulating guidance, the Court quietly freed its evaluation of historical laws from the constraints of its equal protection precedents.
As a matter of equality, Bruen’s shadow analysis of these laws reached the proper result.
Racially discriminatory gun laws clearly contravene modern equality doctrine and should be removed from the American constitutional tradition.
But in Dobbs, the shadow analysis reached the wrong result. The Court departed from its modern precedents in order to affirm discriminatory abortion laws that should be excluded from this nation’s tradition.
Without a framework requiring the Court to explicitly address the opposing traditions and hidden equality problems, the history and tradition test threatens to create the false appearance of a singular historical tradition by quietly undermining modern equal protection doctrine and “entrench[ing] inequality.”
I. Dual Problems with the Court’s History and Tradition Test
The history and tradition test has developed gradually over several decades,
but today it focuses on determining which eighteenth- and nineteenth-century laws and practices comprise “this Nation’s historical tradition.”
In 2022, the Supreme Court embraced history and tradition as the key mode of constitutional interpretation in two landmark cases.
Bruen required that laws regulating the Second Amendment right to bear arms be “consistent with this Nation’s historical tradition.”
Applying this test, the Court struck down a New York concealed-carry law because the state failed to identify an American tradition justifying the law’s requirements.
Similarly, Dobbs adopted a test that required unenum-erated due process rights to be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”
Finding no tradition that supported a right to abortion, the Court overturned Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey.
The Court heralded the history and tradition test as an objective, neutral, and administrable means of interpretation.
While many scholars have critiqued this framing,
this Comment focuses narrowly on two issues raised in Bruen and Dobbs, which it labels the “opposing traditions problem” and the “hidden equality problem.” Neither problem is expressly acknowledged, but their resolutions critically shaped the Court’s reasoning. Sections I.A and I.B explore each problem in turn.
A. The Opposing Traditions Problem
In Bruen and Dobbs, the Court’s discussion of historical laws and practices revealed opposing traditions that raised equality concerns.
In Bruen, opposing traditions of gun regulation and public carry implicated racial discrimination.
In Dobbs, opposing traditions of criminalizing and permitting abortion implicated sex-based discrimination.
While the Court did not acknowledge these conflicts directly, the history and tradition test inherently demanded that the Court resolve them by identifying a “definitive, singular historical tradition”
—or, in Justice Thomas’s words, “this Nation’s historical tradition.”
The Court did so by affirming one of the opposing traditions it identified and striking out the other.
In Bruen, the Court held that New York’s concealed-carry licensing regime violated the Second Amendment and adopted a new test for evaluating firearm laws.
Justice Clarence Thomas’s majority opinion declared that the government must justify such laws by demonstrating that they are “consistent with this Nation’s historical tradition of firearm regulation.”
This requires the government to “identify a well-established and representative historical analogue” that is “relevantly similar” to a modern regulation.
While it did not acknowledge the conflict outright, Justice Thomas’s historical analysis identified both a tradition of regulating firearms and an opposing tradition of public carry. His “long journey through the Anglo-American history of public carry” included a discussion of historical laws implicating equality concerns related to Black Americans’ right to bear arms.
Justice Thomas acknowledged that “free blacks were often denied [this right] in antebellum America” and that “the exercise of this fundamental right by freed slaves was systematically thwarted” after the Civil War.
He framed this history of disarmament both in contrast to examples of Black people publicly carrying weapons for defense and as inspiration for legislative action extending gun rights to freedmen.
Justice Thomas described 1866 reports that indicated Black people “indeed carried arms publicly for their self-protection” and framed Congress’s 1868 extension of the Freedmen’s Bureau Act as “reaffirm[ing] that freedmen were entitled to the ‘full and equal benefit of all laws and proceedings concerning personal liberty [and] personal security . . . including the constitutional right to keep and bear arms.’”
He thus laid out opposing traditions of gun regulation for nineteenth-century Black Americans. However, the Court concluded that respondents had not identified a historical tradition of prohibiting public carry.
Bruen instead held that the Second Amendment “guarantee[s] to ‘all Americans’” a right to carry arms for self-defense inside and outside the home.
In Dobbs, the Court revived a narrow framing of history and tradition in order to overrule Roe and Casey.
In his majority opinion, Justice Samuel Alito stated that the Due Process Clause only protects unenumerated rights that are “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”
The Court then undertook a discussion of historical abortion laws in which it found that “three-quarters of the States had made abortion a crime at any stage of pregnancy” when the Fourteenth Amendment was adopted.
In contrast, the Court also acknowledged that nine out of thirty-seven states allowed abortion at that time
and that “many States in the late 18th and early 19th century did not criminalize pre-quickening abortions.”
The Court thus recognized opposing traditions of criminalizing and permitting abortion. Despite this, the Court ignored the latter history and reached the “inescapable conclusion” that the right to abortion has “no basis” in the nation’s history and traditions.
Instead, the Court found an “unbroken tradition” of criminalizing abortion “from the earliest days of the common law until 1973.”
B. The Hidden Equality Problem
The second concern with history and tradition analysis is the Court’s failure to explain how it makes equality determinations about past laws. As Professors Reva Siegel and Aaron Tang have argued, the Court assumes that historical laws and practices must rest on constitutional grounds in order to constitute a tradition.
Analyzing this assumption, Professor Franklin has outlined three main equality concerns inherent in history and tradition cases. First, after courts identify a relevant tradition, they then engage in a second step, which is “often unarticulated” and “value-laden,” in order to determine “whether that tradition is consistent with Equal Protection.”
Second, because history and tradition are analyzed in cases about substantive due process, the First Amendment, or the Second Amendment—instead of equal protection—courts are making constitutional equality determinations “invisibly or implicitly, with little or no analysis or justification.”
Third, by hiding these equality determinations in history and tradition analysis, the Court has begun to silently “dismantle equal protection doctrine” in “ways that can be hard to detect.”
Building on Professor Franklin’s framework, Part II highlights passages in Bruen and Dobbs that reveal how the Court employed shadow equal protection analysis to construct the illusion of a uniform historical tradition.
II. Resolving Opposing Traditions Through Hidden Equal Protection Analysis
The opposing traditions and hidden equality problems intersect in Bruen and Dobbs. This Comment uncovers how the Court quietly reasoned through equal protection considerations to determine which of the opposing traditions it identified would constitute this nation’s singular historical tradition. Professor Franklin explained that the “history and tradition test incorporates a range of [doctrinal] mechanisms” to produce outcomes adhering to the Court’s modern understandings of equality.
One such mechanism is conducting hidden equality determinations by changing the level of generality.
Professor Franklin found that “the Justices will break with history and tradition when old practices violate their (twenty-first-century) notions of equality, but will hew closely to tradition in cases where they continue to find the old-style regulation tolerable from an equality standpoint.”
This Comment offers an alternative mechanism. It argues that the unarticulated reasoning Bruen and Dobbs used to “break with” or “hew closely to” history and tradition resembled equal protection analysis.
The Court broke with a historical tradition by applying a hidden review resembling strict scrutiny—labeled here “shadow strict scrutiny.” It hewed closely to a historical tradition by applying a hidden review resembling rational basis––“shadow rational basis.” The Court made these hidden equality determinations in order to evaluate which of the conflicting traditions it would strike out of or incorporate into this nation’s historical tradition. Thus, the Court resolved the opposing traditions problem through a hidden equal protection analysis.
Section II.A argues that Bruen’s analysis of gun traditions employed a shadow strict scrutiny review to historical regulations that discriminated on the basis of race.
This aligned with the evolution of race-based equality doctrine, which centers the original meaning of the Fourteenth Amendment as eliminating racial discrimination.
If Justice Thomas had made his historical equality analysis explicit, he would not have needed to depart from the Court’s modern precedents.
This analysis ultimately reached the proper result: Racially discriminatory disarmament laws are incompatible with equal protection doctrine and should not be incor-porated into America’s historical tradition.
Nevertheless, the Court’s failure to articulate a method for analyzing historical equality consid-erations freed other history and tradition cases to deviate from equal protection precedents.
Section II.B argues that Dobbs’s analysis of abortion traditions applied a shadow rational basis review to historical regulations that made sex-based classifications.
This analysis departed from the modern development of sex-based equality doctrine under United States v. Virginia
and Nevada Department of Human Resources v. Hibbs.
These cases repudiated the nation’s “long and unfortunate history of sex discrimination,”
superseded the reasoning in Geduldig v. Aiello,
and established that heightened scrutiny applies to laws that regulate pregnancy.
However, in determining that abortion regulations do not make sex-based class-ifications, Justice Alito quietly swept Virginia and Hibbs under the rug.
Because this equality analysis was mostly implicit, he provided no expla-nation for this departure. Therein lies the danger of the opposing traditions and hidden equality problems. To create the illusion of a uniform historical tradition, the Court makes necessary equality determinations about historical laws without explicit reasoning. While those determinations aligned with race-based equal protection doctrine in Bruen, they under-mined sex-based equal protection doctrine in Dobbs.
A. Shadow Strict Scrutiny Review of Racially Discriminatory Gun Laws
In Bruen, Justice Thomas’s account of the history of public carry in America exposed opposing traditions of a right to public carry and reg-ulations of that right. These opposing traditions were particularly clear in Justice Thomas’s discussion of race in the antebellum and Reconstruction eras.
Similar to his McDonald v. City of Chicago concurrence,
Justice Thomas acknowledged the substantial history of nineteenth-century disarmament laws that expressly discriminated on the basis of race.
However, he did not frame these laws as contributing to this nation’s historical tradition. Rather, he contrasted them with an opposing tradition constructed from the practices of Black people carrying firearms in public for self-defense and laws repudiating race-based disarmament.
Justice Thomas concluded that respondents had failed to identify a tradition of prohibiting public carry.
He thus struck out the history of racially discriminatory disarmament laws without a clear explanation.
Implicit in his resolution of these opposing traditions was a hidden equal protection analysis. This reasoning resembled a fatal, strict scrutiny review of his-torical race-based classifications, mirroring that which the Court applies to equal protection cases today.
The following three passages from Bruen highlight this shadow analysis.
First, discussing the postbellum period, Justice Thomas referenced the history of “Southern abuses violating blacks’ right to keep and bear arms,” as described in McDonald.
For example, Justice Thomas stated that local enforcement of nineteenth-century concealed-carry laws in Florida “discriminated against blacks” and quoted an official’s statement: “Why is this poor fellow fined for an offence which is committed hourly by every other white man I meet in the streets?”
Here, Justice Thomas explicitly acknowledged that Florida’s law discriminated on the basis of race. He explained that this prohibition on concealed carry was not “applied equally, even when under federal scrutiny.”
In doing so, Justice Thomas expressed clearly, though not explicitly, that this law would fail modern equal protection review. This provides a strong example of Justice Thomas’s application of shadow strict scrutiny to historical racial classifications.
Second, Justice Thomas’s discussion of South Carolina’s Black Codes, which “prohibited firearm possession by blacks,” also suggested a fatal-in-fact strict scrutiny.
Justice Thomas presented a historical law—the Black Codes—that he defined as racially discriminatory. He seemed to acknowledge the law’s apparent unconstitutionality by stating it was “pre-empt[ed]” by an 1866 decree issued by General Sickles.
He then doubled down on the impermissibility of this classification by quoting Sickles: “The constitutional rights of all loyal and well-disposed inhabitants to bear arms will not be infringed . . . .”
Affirming the Sickles decree, Justice Thomas struck the Black Codes out of this nation’s historical tradition and, instead, affirmed an opposing tradition that rejected these racist laws.
Third, Justice Thomas emphasized quotations from a Black-owned newspaper that called attention to the racially discriminatory nature of historical gun laws.
He quoted the paper’s editors in stating that Black people had “the same right to own and carry fire arms that other citizens have.”
This comparison highlighted racial classifications in gun laws between Black people and “other citizens.”
He further quoted the editors, who, borrowing from the Freedmen’s Bureau, stated, “‘[a]ny person, white or black, may be disarmed if convicted of making an improper or dangerous use of weapons,’ even though ‘no military or civil officer has the right or authority to disarm any class of people.’”
By evoking equal protection treatment of racial classifications, Justice Thomas framed the expansion of gun rights to Black people as arising from the repudiation of racial discrimination. This, too, created an equal protection basis for silently striking racially discriminatory gun laws out of America’s historical tradition.
Justice Thomas ultimately held that this nation has no “tradition of broadly prohibiting the public carry of commonly used firearms for self-defense.”
He reached this conclusion by reasoning about equal protection in the shadows of history and tradition.
Justice Thomas excluded a tradition of racially discriminatory gun laws and affirmed an opposing tradition that rejected them.
This shadow strict scrutiny review of racially discriminatory gun laws is, of course, consistent with the modern evolution of the equal protection doctrine.
The Court’s treatment of racial discrimination today is based on an originalist reading of the Equal Protection Clause that rejects race-based state action except in the most extraordinary cases.
The danger of Bruen’s hidden equal protection analysis, therefore, is not in departing from the Court’s well-established jurisprudence on race.
Rather, by not explicitly articulating a framework to address these historical equality decisions in Bruen, the Court preserved for itself the ability to deviate from equal protection precedent in other history and tradition cases.
B. Shadow Rational Basis Review of Discriminatory Anti-Abortion Laws
In Dobbs, the Court’s hidden equality analysis departed from modern equal protection doctrine in order to create the illusion of a singular historical tradition.
The Court’s discussion of historical abortion laws revealed opposing traditions of criminalizing and permitting abortion.
After considering these competing traditions, the Court ultimately concluded that the right to abortion “has no basis . . . in our Nation’s history” and instead affirmed an “unbroken tradition” of criminal abortion prohibitions.
The Court’s reasoning suggests that it resolved the opposing traditions problem through a hidden equal protection analysis. The Court applied a shadow rational basis review to sex-based classifications in order to incorporate laws criminalizing abortion into the nation’s historical tradition.
In dicta, Dobbs tersely rejected the theory that the Equal Protection Clause protects the right to abortion—calling it “squarely foreclosed by [the Court’s] precedents.”
The Court asserted that the regulation of abortion is “not a sex-based classification” and thus does not trigger the “‘heightened scrutiny’ that applies to such classifications.”
Citing Geduldig v. Aiello, the Court suggested that heightened scrutiny would only apply if an abortion regulation was motivated by “invidious discrimination against members of one sex.”
But, the Court clarified, the “‘goal of preventing abortion’ does not constitute ‘[such] animus’ against women.”
The Court further stated that “laws regulating or prohibiting abortion . . . are governed by the same standard of review as other health and safety measures.”
The Court was not direct about this standard of review. Rather, in footnote eighteen, the Court pointed to part VI of the opinion, in which it clarified that “rational-basis review is the appropriate standard for such challenges.”
In sum, the Court declared that abortion regulations do not discriminate against women and, thus, are subject to rational basis review under the Equal Protection Clause.
While dicta, this paragraph evinced an unmistakable refusal to engage with the construction of modern sex equality law over the past half century.
By reviving Geduldig, Justice Alito ignored later cases—United States v. Virginia
and Nevada Department of Human Resources v. Hibbs
—that many scholars believed had superseded Geduldig and rendered it a “constitutional relic.”
Justice Alito’s invocation of the Court’s 1974 opinion in Geduldig also suggested an intent to return equal protection doctrine to a time before the Court began formally subjecting sex-based state action to heightened scrutiny.
Because this equality analysis is mostly implicit, it remains to be seen whether this represented his openness to lowering the standard of review for all sex-based discrimination—a position which would be in accord with Justice Antonin Scalia’s dissent in Virginia.
While this opening salvo is not a binding holding,
it nonetheless established the spirit of the due process analysis to follow and implicitly freed the Court to evaluate history and tradition without regard to modern equality doctrine.
To avoid addressing the potentially discriminatory basis for historical laws criminalizing abortion, the Court silently applied a shadow rational basis review.
The Court’s hidden equality analysis primarily occurred in its discussion of the amicus brief filed by the American Historical Association and Organization of American Historians (“Historians’ Brief”).
According to Justice Alito, the Historians’ Brief suggested that criminal abortion statutes in effect when the Fourteenth Amendment was ratified were “enacted for illegitimate reasons.”
Justice Alito’s language here relegated a necessary equality determination about past sex-based discrimination to the shadows. His framing of “illegitimate reasons” hid what the brief, in fact, described as “[d]iscriminatory” and “[c]onstitutionally [i]mpermissible [m]otives.”
Justice Alito further claimed that the historians made this argument to “tr[y] to dismiss the significance” of the criminal abortion laws.
In doing so, he subtly acknowledged the need to determine whether these laws would be constitutionally permissible and, thus, whether they could be incorporated into this nation’s historical tradition.
Justice Alito then called attention to two motivations for these criminal abortion laws presented in the Historians’ Brief: “the fear that Catholic immigrants were having more babies than Protestants and that the availability of abortion was leading White Protestant women to ‘shir[k their] maternal duties.’”
Under modern equal protection standards, this invocation of sex-role stereotyping would trigger heightened scrutiny.
While Justice Alito did not expressly acknowledge an equal protection problem with these laws, the motivations posed by the Historians’ Brief gave him reason to further evaluate the (obvious) equality implications.
Justice Alito first rejected the discriminatory motive argument and then implicitly accepted a rational basis justifying these laws. He began by attacking the discriminatory legislative motives put forward by the Historians’ Brief—though he never addressed the historians’ use of the word “discriminatory.”
Expressing incredulity, he posed the question: “Are we to believe that the hundreds of lawmakers whose votes were needed to enact these laws were motivated by hostility to Catholics and women?”
With the clear implication being “no,” this rhetorical question represented an unequivocal dismissal of the idea that sex-based discrimination was at play in the enactment of these laws.
By rejecting the notion that historical abortion bans were motivated by sexism, Justice Alito ruled out any “‘invidiously discriminatory animus’ against women” that he earlier suggested would be cause for heightened equal protection review.
Building from the equal protection dicta, he then implied that rational basis would be the appropriate review for these historical laws and offered an ostensibly legitimate government interest: “[T]he passage of these laws was instead spurred by a sincere belief that abortion kills a human being.”
He supported this rational basis by citing several late-nineteenth- and early-twentieth-century judicial decisions.
Justice Alito then concluded this section by stating, “[W]e see no reason to discount the significance of the state laws in question based on these amici’s suggestions about legislative motive.”
In other words, because he found the discriminatory motive arguments insufficient to warrant heightened equal protection review, he affirmed the constitutionality of these historical laws by merely applying a shadow rational basis review.
This passage suggests that Dobbs employed a hidden equal protection analysis to evaluate a tradition of abortion regulations that discriminated on the basis of sex. The Court implicitly determined that criminal abortion laws at the time of the Fourteenth Amendment’s adoption would not be subjected to heightened scrutiny and, instead, accepted a rational basis for their passage. The Court did so in order to incorporate these laws into the nation’s historical tradition of abortion regulation. By departing from the Court’s modern sex-based equality precedents, Dobbs manifested the danger of the history and tradition test’s opposing traditions and hidden equality problems.
The test allowed the Court to quietly undermine equal protection doctrine and revive sex-based status inequality in order to create the false appearance of a singular historical tradition.
Conclusion
In Bruen and Dobbs, the Court’s adoption of the history and tradition test required a historical analysis of gun and abortion regulations that produced two unacknowledged problems. First, history and tradition analysis revealed opposing historical traditions but required the Court to affirm a singular tradition. Second, because these traditions implicated equality concerns and because historical tradition should not rest on unconstitutional grounds, the Court engaged in hidden equality determinations. The Court’s reasoning suggests that it resolved the opposing traditions problem through hidden equal protection analysis. The Court implicitly struck past laws and practices out of this nation’s historical tradition by applying a shadow strict scrutiny review, and it implicitly incorporated past laws and practices into the historical tradition by applying a shadow rational basis review. In creating the illusion of a uniform historical tradition, the Court’s hidden equality analysis aligned with race-based equal protection doctrine but undermined sex-based equal protection doctrine. To prevent the further erosion of modern understandings of equality, the history and tradition test needs a clear framework for evaluating the opposing traditions and hidden equality problems.