Doing History After Dobbs: Applications, Implications, and Critiques of Dobbs's Historical Methodology
Lessons from Lawrence: How “History” Gave Us Dobbs—And How History Can Help Overrule It
Twenty years ago, in Lawrence v. Texas, the Supreme Court overruled Bowers v. Hardwick by correcting Bowers’s mistaken historical assertions. History, as they say, repeats itself: When a future Court reconsiders Dobbs v. Jackson Women’s Health Organization, it will find an opinion whose historical errors dwarf those in Bowers.
The History of History and Tradition: The Roots of Dobbs's Method (and Originalism) in the Defense of Segregation
In Dobbs, the Court reversed Roe, interpreting the Fourteenth Amendment by counting states that banned abortion in 1868, an interpretive method popularized in the defense of segregation. This Essay traces the method’s spread, evolution, and justifications through decades of debate about originalism, history and tradition, and “levels of generality.”
The History of Neutrality: Dobbs and the Social-Movement Politics of History and Tradition
By excavating the history around the history-and-tradition test used in Dobbs v. Jackson Women’s Health Organization and the alternative it pushes to the side, this Essay reconsiders the meaning—and plausibility—of neutrality claims turning on the Dobbs Court’s use of history and tradition.
History and Tradition’s Equality Problem
This Essay identifies a key feature of the Court’s new history-and-tradition doctrine that has not yet attracted significant attention: outcomes in history-and-tradition cases (involving guns, abortion, etc.) are often driven by hidden, contemporary judgments about equality—judgments whose implications may extend far beyond these cases.