abstract. The Court has recently adopted history-and-tradition tests in several key areas of constitutional law. To determine the constitutionality of a gun regulation, courts must now look back to the Founding Era, to determine whether the regulation is consistent with historical forms of gun regulation. The Court recently overturned Roe v. Wade after finding that the right to abortion is not “deeply rooted in the Nation’s history and traditions.” Proponents argue that this tradition-oriented approach helps to ensure judges enforce the Constitution as it was written and ratified rather than interpreting the document in ways that reflect their own twenty-first-century values. Critics of the history-and-tradition approach used to overturn Roe have argued that it is far more subjective than proponents suggest: there is considerable judgment involved in interpreting the historical record and deciding how to define the relevant historical tradition.

This Essay builds on the critical literature by identifying a key feature of the Court’s new history-and-tradition test for substantive due process cases that has not yet attracted significant attention: outcomes in these cases delivered by this test are often actually, or additionally, driven by hidden, contemporary judgments about equality. The Court portrays history-and-tradition as a “one-step” test that requires judges to determine only whether a right or regulation is deeply rooted in history. But there is always a second (often unarticulated) step in history-and-tradition cases. After courts identify the relevant tradition, they must determine whether that tradition is compatible with current understandings of equality. Courts cannot simply identify how Americans regulated in the past and use that history to determine the permissibility of regulation today: too many eighteenth- and nineteenth-century regulatory traditions would now be viewed as abhorrent to adhere to the results of the history-and-tradition test consistently, without considering the compatibility of these results with modern notions of equality.

This gives rise to a nested set of problems. To admit that highly contested, modern, value-laden conceptions of equality often drive the outcome of substantive due process cases using a history-and-tradition approach would undermine the purported neutrality of this approach. Thus, judges in these history-and-tradition cases often conduct the equality analysis sub rosa and use various doctrinal mechanisms—such as ratcheting up or down the level of generality at which they define the relevant historical tradition—to bring the outcomes of these cases in line with their own understandings of equality. But making equality determinations in the dark frees judges from accountability for their decisions. It enables them to defer to past practice in cases involving groups and rights they disfavor, but to break from past practice in cases involving groups and rights they favor—while insisting in both contexts that they’re simply following the dictates of history. There is an even deeper problem: the Court is now making significant (generally unacknowledged) equality determinations in these history-and-tradition cases that in some instances substantially undermine contemporary equal protection doctrine. It can be hard to detect these threats to equality law because the Court often makes these determinations in cases in which the equality component is hidden. If this practice continues, it is possible the Court could dismantle a substantial amount of contemporary equality law in history-and-tradition cases without ever formally overruling a single equal protection decision.

Introduction

In the summer of 2022, the Supreme Court adopted history-and-tradition tests in three key areas of constitutional law. In New York State Rifle & Pistol Ass’n v. Bruen,1 the Court held that laws regulating guns are permissible under the Second Amendment only if those laws are “consistent with the Nation’s historical tradition of firearm regulation.”2 In Dobbs v. Jackson Women’s Health Organization,3 the Court held that substantive due process protects only rights that are “deeply rooted in the Nation’s history and tradition,”4 and that abortion does not satisfy this test. In Kennedy v. Bremerton School District,5 the Court held that the Establishment Clause must “be interpreted by reference to historical practices and understandings,”6 using an “analysis focused on original meaning and history.”7

These history-and-tradition decisions have sparked significant criticism. Some critics have argued that the Court got the history wrong.8 Others have argued that history-and-tradition tests are so malleable, it is hard to get the analysis “right” in any objective sort of way. Judges implementing these tests have observed that “there are frequently traditions that support each side of a constitutional controversy,” leaving judges “free to cherry-pick from those traditions to justify their preferred results.”9 Known and unknown gaps in the historical record often make it difficult to define our regulatory traditions with the degree of precision these tests demand10—as does judges’ lack of professional expertise in navigating eighteenth- and nineteenth-century history.11

Even in cases where the historical data is relatively clear, these tests remain highly malleable, because so much depends on the level of generality at which courts choose to define the relevant history and tradition.12 A court inclined to preserve a particular gun regulation under the Second Amendment may identify a broad tradition of, say, disarming “dangerous” people; this broad definition could permit new forms of regulation that did not exist at the time of the Founding. A court more skeptical of gun regulation may define regulatory traditions governing firearms with a greater degree of specificity and use that narrower definition to invalidate modern regulation. Likewise, a court may find that substantive due process protects a right to use contraception if it defines the relevant history and tradition at a relatively high level of generality (identifying a regulatory tradition protecting bodily autonomy and decisions regarding parenthood); another court may reach a different conclusion if it defines the relevant history more narrowly (asking if the Constitution was understood in 1868 to protect a fundamental right to use contraception). There is a growing body of scholarship demonstrating that selecting the appropriate level of generality in a history-and-tradition case is not an objective or value-neutral enterprise.13 Ratcheting levels of generality up and down enables courts in history-and-tradition cases to achieve preferred outcomes while claiming they are simply deferring to the past.

This Essay builds on this existing literature by identifying a critical feature of history-and-tradition doctrine that has not yet attracted significant attention: outcomes in the Court’s new history-and-tradition cases are often driven by hidden, twenty-first-century judgments about equality. Such judgments may never rise to the surface, but they are often the moving force driving judges to select particular levels of generality or make other outcome-determinative choices (such as what time period and which geographic locales to consider when trying to define a “tradition,” what texts or databases to consult, whose history counts, whether to apply stare decisis, and so on). I have referred to these choices in previous work as “shadow decision points,” or “generally unacknowledged, often outcome-determinative choices about how to interpret [the law] that are framed as methodological but that are typically fueled by substantive . . . concerns.”14 This Essay shows that equality is often the hidden substantive concern fueling apparently methodological decisions in history-and-tradition cases—especially the all-important decision of how broadly or narrowly to define the relevant historical tradition. Judges in history-and-tradition cases frequently adjust the levels of generality at which they define the relevant historical tradition in order to reach outcomes that accord with their own understandings of equality.

This practice is not confined to judges of any particular political persuasion. Despite claims that the history-and-tradition approach is far “more determinate and ‘much less subjective’” than other interpretive methodologies15 because it forces judges to abide by “the teachings of history,”16 even judges who embrace this approach are not actually willing to bind themselves to the distant past in any consistent sort of way. The United States is nearly two-and-a-half centuries old and there are many eighteenth- and nineteenth-century regulatory practices we now consider abhorrent because they contradict modern conceptions of equality. Very few, if any, judges on the bench today could stomach a consistent application of the history-and-tradition test—one that tried simply to identify how Americans regulated in the past and used that history to determine the permissibility of regulation today without any consideration of contemporary equality concerns. Thus, what we get in practice in history-and-tradition cases is partial, inconsistent, and spotty adherence to the past—an adherence to the past that is tempered by twenty-first-century social and political judgments.

There is nothing wrong with courts’ refusal to consistently abide by past practice in history-and-tradition cases. In fact, courts are constitutionally obligated not to uniformly adhere to the past. The Equal Protection Clause was ratified in 1868 to disrupt history and tradition. It was designed to be forward-looking, to put an end to the oppressive practices of the past and to effectuate a new promise of equal citizenship. The Constitution’s equal protection guarantee means that courts do not view the long history of segregated schools in this country as a reason to permit school segregation today. Bars on interracial marriage may be deeply rooted in our history and tradition, but that does not mean states in the twenty-first century can bar such marriages. The meaning of equal protection is not static; it evolves over time and admits of new understandings, which means that governments today cannot simply treat eighteenth- and nineteenth-century practices as a barometer for what is permissible today. There are legal barriers to reinstituting many practices that were widespread in the past. So it is good—indeed, constitutionally required—that courts in history-and-tradition cases do not abide by past practice consistently and instead implement history-and-tradition tests in ways that are inflected with modern conceptions of equality.

However, the fact that equal protection prevents courts in history-and-tradition cases from consistently following the relevant law circa 1791 or 1868, gives rise to a problem, or a nested set of problems. There is always a second (often unarticulated) step in history-and-tradition cases. After courts in history-and-tradition cases identify the relevant tradition, they must determine whether that tradition is consistent with equal protection. The first problem is that this unarticulated extra step is often a highly contested and value-laden enterprise that undermines the purported neutrality of the history-and-tradition test and the assertion that judges in these cases are bound by the past. Second, there is a deeper problem: the history-and-tradition cases in which the Court is making these equality determinations are not framed as equal protection cases. They are substantive due process cases, or First or Second Amendment cases. Thus, much of the time, courts are making equal protection determinations in these cases sub rosa; courts may not even acknowledge they are making these determinations. This means that significant constitutional determinations concerning equality may be made invisibly or implicitly, with little or no analysis or justification. This leads to the third and deepest problem, which is what is happening now. The Court has begun to silently gut or dismantle equal protection doctrine in history-and-tradition cases in ways that can be hard to detect because the Court is making these moves in cases in which the equality component is often hidden.

Part I of this Essay focuses primarily on the hiddenness problem—the fact that courts are making determinations about equality in history-and-tradition cases without acknowledging they are doing so. Part I uses United States v. Rahimi,17 the Second Amendment case currently before the Court, as a case study. Rahimi concerns the constitutionality of a federal law that prohibits individuals subject to domestic-violence restraining orders from possessing firearms. To pass constitutional muster after Bruen, contemporary gun regulations must be “consistent with the Nation’s historical tradition of firearm regulation.”18 There were no laws stripping perpetrators of domestic violence of their guns at the time the Second Amendment was ratified. So, if the Court chooses to define tradition narrowly, the government will lose this case, as it did in the Fifth Circuit. But Bruen’s history-and-tradition test is highly malleable. If the Court wants to uphold the law, it can easily find a way to do so—including by raising the level of generality at which it defines our regulatory traditions so this law can be characterized as fitting within those traditions.

Part I focuses in particular on the covert role conceptions of equality play in Rahimi. The Fifth Circuit did not see any problem with hewing closely to the history in this case; it held that because there were no laws like today’s “domestic violence prohibitor” in 1791, this law is not permissible today. In reaching this conclusion, the Fifth Circuit implicitly determined that new ways of thinking about domestic violence and women’s status in family—and the fact that more than half of the women killed by current or former intimate partners are now killed with firearms19—should not prevent us from abiding by the regulatory practices of our forefathers in this context. But judging by the public outcry and the tenor of the oral argument at the Supreme Court in Rahimi, this view seems unlikely to prevail. Traditional ideas about women’s equality and men’s familial prerogatives have changed too much in the intervening centuries for most Americans to tolerate the idea that the government may not disarm people subject to domestic-violence restraining orders.

If the Court decides that adhering to history and tradition too closely in Rahimi would produce abhorrent results, there are a multitude of doctrinal mechanisms it can employ to avoid such results. Part I discusses these mechanisms. But whatever route the Court takes—even if it employs one of these escape valves—it will almost certainly insist that its decision is rooted in eighteenth-century history and that it is simply hewing to that history, properly understood. Pretending that history compels the outcome in this case will enable the Court to avoid accountability for its decision; the Court will not have to provide a full account of why it chose to depart from the specifics of history in this case but not others; it will avoid the problems that would rise to the surface if it admitted that it was influenced by twenty-first-century understandings of equality in this case but refused to honor those understandings in other cases.

Part II shows how the hidden equality determinations the Court makes in history-and-tradition cases may cross doctrinal lines and impact equal protection law itself. Part II shifts the focus from guns to abortion, to show how the Court’s implementation of the history-and-tradition test in Dobbs threatens equality law. The Dobbs Court defined the relevant tradition with a very high degree of specificity and found that our distant forefathers did not view abortion as a fundamental right.20 Part II does not address the accuracy of this history (there is a growing body of literature that does21). It focuses instead on the way the Court in its substantive due process decisions picks and chooses when it is going to hew closely to past practice and when it is going to instead raise the level of generality at which it defines our regulatory traditions to produce outcomes more in line with contemporary understandings of equality. The history-and-tradition approach enables the Court to defer to past practice in cases involving groups and rights the Court disfavors, but to break from past practice in cases involving groups and rights the Court favors—while insisting in both contexts that it is simply following the dictates of history.

Part II shows that the hidden equality-based determinations the Court makes in history-and-tradition cases not only yield different results for different groups, these equality determinations may also have spill-over effects outside the confines of history-and-tradition cases. Dobbs is a case in point. When the Court decided to hew closely to (its account of) past practice in the context of abortion, it suggested that laws banning abortion raise no equality concerns. This suggestion disregards half a century of legal development in the context of equal protection and the construction of an equality-based body of law limiting how the state may regulate pregnancy. Dobbs did not formally overrule this body of law. But its failure to acknowledge the existence of this body of law—its suggestion that the revival of nineteenth-century abortion bans raises no equality concerns—covertly undermines decades of legal precedent. If this practice continues, it is possible the Court could dismantle a substantial amount of contemporary equality law in history-and-tradition cases without ever formally overruling a single equal protection decision.

I. interpreting the second amendment in the shadow of equal protection

A few years ago, when Bruen was pending at the Supreme Court, Adam Winkler published an essay entitled Racist Gun Laws and the Second Amendment.22 At the time Winkler published his essay, the Court had not yet adopted a history-and-tradition test in the Second Amendment context, but a number of the Roberts Court’s newest Justices had championed such a test when they sat on the U.S. Court of Appeals23 and the momentum at the Court seemed to be in favor of more expansive gun rights. “History and tradition” was being pitched as a more Second Amendment-friendly approach,24 one that would bar the government from regulating firearms unless it could identify an “appropriate”25 eighteenth- or nineteenth-century analogue to its current regulation. Winkler noted a complication with this emergent test: “For much of American history, gun rights did not extend to Black people and gun control was often enacted to limit access to guns by people of color.”26 Many of the historical traditions proponents of “history and tradition” wanted to treat as the sole determinant of the Second Amendment’s meaning “bore the ugly taint of racism.”27 Winkler observed that “the history of racist gun laws w[ould] complicate”28 the application of the history-and-tradition approach in the Second Amendment context.

It was a prescient observation. There is already another gun case at the Court,29 and this new case—Rahimi—presents the very kinds of interpretive challenges Winkler identified in his essay (although, in Rahimi, the problems have more to do with gender than with race). How deep does the taint of discrimination need to be before courts break with tradition? Which parts of our regulatory tradition look so rotten, from a twenty-first-century standpoint, that courts will or should balk at abiding by them?

Bruen did not acknowledge these challenges or provide any guidance to judges about what to do when confronted with eighteenth- and nineteenth-century regulatory traditions shaped by outmoded ideas. As post-Bruen gun cases have made their way through the courts, judges have adopted different approaches to the problem. One approach is simply to ignore the discriminatory taint: to identify the relevant history and tradition and use it to judge the constitutionality of current regulation, equality concerns notwithstanding. But that is not the only possible approach. This Part shows that Bruen’s history-and-tradition test provides the Supreme Court with considerable leeway if it wants to avoid the conclusions the Fifth Circuit reached in Rahimi. If the Justices are hesitant about adhering too closely to regulatory traditions based on antiquated ideas about domestic violence and guns, the history-and-tradition test incorporates a range of mechanisms capable of producing outcomes more in line with twenty-first-century understandings.

If the Court avails itself of one of these mechanisms, that would be an understandable, even laudable, choice. It would be brutally inegalitarian and exclusionary if twenty-first-century legislation and jurisprudence were actually tethered to the distant past in all instances. But it is a problem that the history-and-tradition test does not allow the Court to admit that it’s engaged in such updating. If the Court is influenced by egalitarian concerns in Rahimi, it is going to have to effectuate those concerns sub rosa, under the cover of doctrinal moves that obscure the substantive, value-laden choices the Justices are making. This doctrinal framework accords the Justices a lot of power while substantially relieving them of accountability for their decisions. It enables the very kind of “free-wheeling policymaking”30 that the history-and-tradition approach purports to curtail. This Part shows that the history-and-tradition approach does not curb judicial discretion, it pushes it underground, exacerbating rather than solving the problem of judges “legislating from the bench.”

A. A “Straightforward” and “Focused” Approach to History and Tradition

The Court’s decision in Bruen—which was widely interpreted as a signal of the Court’s interest in expanding gun rights—sparked a wave of Second Amendment challenges. One of the laws that came under fire after Bruen was 18 U.S.C. § 922(g)(8), a federal law that prohibits individuals subject to domestic-violence restraining orders from possessing firearms.31 The Supreme Court recently heard oral argument32 in a case challenging the constitutionality of § 922(g)(8) brought by a man named Zackey Rahimi, who was convicted under this law after police found two guns in his possession alongside a copy of the restraining order he was under.33

In the past, litigants have had no luck challenging § 922(g)(8)’s constitutionality under the Second Amendment. Indeed, when Rahimi originally filed his claim in a federal district court in Texas, there was recent Fifth Circuit precedent upholding § 922(g)(8) under the Second Amendment: in 2020, the Fifth Circuit rejected a claim nearly identical to Rahimi’s in a case called United States v. McGinnis.34 The court in McGinnis applied the “two-step framework” courts adopted in the years after District of Columbia v. Heller35 and upheld § 922(g)(8) after finding that “reducing domestic gun abuse is . . . a compelling [government interest]” and that the law “is reasonably adapted to that interest.”36 That is typically how it went in these cases prior to Bruen. The federal district court and the Fifth Circuit panel that initially heard Rahimi’s claim rejected his contention that § 922(g)(8) violated the Second Amendment, approvingly citing McGinnis37and endorsing the idea that the government has a powerful interest in disarming individuals in the context of domestic violence.

This governmental interest analysis was explicitly influenced by contemporary understandings of domestic violence and the government’s interest in preventing it. Section 922(g)(8) was enacted in 1994 after a multi-year effort in Congress to address the government’s longstanding resistance to taking domestic violence seriously. “Between 1990 and 1991, Congress held four hearings that documented the crisis of violence against women in the United States” and the state’s traditional failure to police this violence.38 Section 922(g)(8) was designed specifically to address the historical absence of gun regulation in the context of domestic violence. The bipartisan proponents of § 922(g)(8) cited a plethora of studies documenting the harms domestic violence inflicted on women, particularly when guns were involved.39 In light of this evidence, it is not surprising that courts uniformly upheld § 922(g)(8) pre-Bruen, when Second Amendment doctrine took governmental interest into account.

But not everybody in those years approved of courts’ use of a balancing test under the Second Amendment. A growing number of conservative judges began to argue that the two-step framework “permitted judges to interest-balance away the Second Amendment guarantee.”40 These judges argued that the two-step “approach was nothing more than a judicial sleight-of-hand . . . feign[ing] respect to the right to keep and bear arms but never enforcing its protection.”41 In fact, they asserted, this framework “treat[ed] the Second Amendment as a ‘second-class right.’”42 One judge complained that the Second Amendment post-Heller still “looked like an abandoned cabin in the woods. A knot of vines, weeds, and roots, left unkempt for decades, crawling up the cabin’s sides as if pulling it under the earth.”43

The Supreme Court responded to these concerns in Bruen by replacing the two-step framework that took government interest into account with a “one-step”44 test that turns solely on history and tradition. This new test purports to accord no weight to twenty-first-century concerns about gun violence and women’s status in society. The constitutional analysis after Bruen turns solely on whether the government can “identify a well-established and representative historical analogue”45 to its regulation. (The historical analogue need not be a “twin” or “a dead ringer,” but it does have to be “analogous enough [to the current law] to pass constitutional muster.”46) Proponents of this test portray it as a more “straightforward”47 and “focused”48 approach to interpreting the Second Amendment. The prior balancing test invited judges to make present-day policy determinations about the government’s interest in gun regulation. Bruen’s test constrains judicial discretion by cutting out modern-day concerns and limiting judges’ ability to “stray” from the document’s “original meaning.”49

After Bruen came down, the Fifth Circuit withdrew its opinion in Rahimi upholding § 922(g)(8).50 A few months later, the court issued a new opinion that opened by observing: “The question presented in [Rahimi] is not whether prohibiting the possession of firearms by someone subject to a domestic-violence restraining order is a laudable policy goal. The question is whether 18 U.S.C. § 922(g)(8) . . . is constitutional under the Second Amendment . . . .”51 Post-Bruen, the Second Amendment analysis in Rahimi does not turn on statistics about gun violence by domestic abusers or the toll such violence takes on women. The analysis turns on whether the government can adduce a historical analogue sufficiently similar to § 922(g)(8) to satisfy the history-and-tradition test.

The government in Rahimi presented the Fifth Circuit with several historical analogues to § 922(g)(8).52 It argued there were numerous laws in England and the U.S. in centuries past that disarmed people considered dangerous, and that these laws could serve as historical analogies to § 922(g)(8). The Fifth Circuit rejected this claim. It found that the English Militia Law of 1662—which the government cited as an example of a law permitting the disarmament of dangerous people—was used by English kings to disarm their political opponents, and that the Second Amendment was part of a regulatory tradition designed to protect against this kind of disarmament.53 Similarly, the court found that early American laws disarming slaves, Native Americans, and disloyal people were inapt analogies for the new “domestic violence prohibitor” “because . . . why they disarmed people was different. The purpose of laws disarming ‘disloyal’ or ‘unacceptable’ groups was ostensibly the preservation of political and social order, not the protection of an identified person from the threat of ‘domestic gun abuse . . . .’”54 The court rejected laws that barred “going armed to terrify the King’s subjects” as apt analogies for the same reason: those “laws appear to have been aimed at curbing terroristic or riotous behavior, i.e., disarming those who had been adjudicated to be a threat to society generally, rather than to identified individuals.”55 The court rejected other possible historical analogies proffered by the government after finding that they did not actually disarm people;56 they were never adopted;57 they were outliers,58 etc.

This analysis closely resembled that of another federal court that reached the same conclusion about § 922(g)(8)’s constitutionality, post-Bruen, in a case called United States v. Perez-Gallan.59 The court in Perez-Gallan emphasized that Bruen required a “straightforward historical inquiry,”60 and it noted that Bruen provided some useful and relevant guidance for conducting this inquiry. Bruen explained that “when a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment.”61 “Likewise,” Bruen noted, “if earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional.”62 The court in Perez-Gallan observed that Americans at the Founding were aware of domestic violence, but never addressed it by disarming perpetrators.63 Moreover, the government itself adduced evidence that eighteenth-century Americans sometimes visited different, non-gun-related punishments on perpetrators of domestic abuse. The court found that, by showing that Americans traditionally addressed this age-old phenomenon “through materially different means,” the government substantially undercut its argument that § 922(g)(8) is constitutional.64

The court in Perez-Gallan acknowledged that Americans today take domestic violence more seriously than our predecessors did in the Founding Era; the idea that this kind of violence is predominantly a private family matter has fallen out of favor.65 The women’s movement of the mid-to-late twentieth century revolutionized the way we think about women’s standing in society, and men’s and women’s roles and prerogatives in the family. But the court in Perez-Gallan characterized these new ways of thinking as contemporary “public policy concerns”66—precisely the sort of concerns Bruen meant to exclude from the analysis of a gun regulation’s constitutionality under the Second Amendment. The court repeatedly observed that § 922(g)(8) is a new law, that its “history started in 1994—less than 30 years ago,” making it younger than “the company Amazon.”67 Americans today may approve of this law, but “Bruen’s mandate is that a gun regulation’s constitutionality hinge solely on the historical inquiry.”68 Thus, the court concluded, under a “straightforward history inquiry” into this nation’s regulatory traditions, § 922(g)(8) is clearly unconstitutional.69

B. Equality-Informed Mechanisms for Avoiding this Outcome in Rahimi

These decisions, finding § 922(g)(8) unconstitutional under the Second Amendment, provoked a substantial public outcry70—which is understandable, given how out-of-step they are with current social, political, and constitutional understandings. Commentators accused the Fifth Circuit of “gender bias” and of “put[ting] many women’s lives in danger.”71 They argued that the “revanchisis[t]”72 decision to strike § 922(g)(8) reflected the values of “[t]he early American republic . . . a far more sexist place than America in 2023.”73 They argued that the invalidation of § 922(g)(8) took us back to a time when women were second-class citizens, disenfranchised and subject to the rules of coverture.74 The commentators were not wrong about this; the whole point of these decisions was to root Second Amendment jurisprudence in understandings that prevailed in 1791.

But, this Section shows, the history-and-tradition test that now governs the adjudication of Second Amendment cases does not yield the kind of definitive answers the federal courts in these gun cases claimed to have reached. Bruen’s history-and-tradition test leaves plenty of leeway for courts to incorporate twenty-first-century concerns into their analysis—they just cannot do so openly, as they could in the prior “two-step” framework. That framework explicitly took governmental interest into account; in deciding whether a regulation was constitutional under the Second Amendment, courts explicitly considered the strength of the present-day justifications behind the government’s regulation. Bruen purported to exclude all consideration of such present-day concerns. But it did not actually do so. History-and-tradition doctrine affords courts numerous escape valves—ways of abstracting out from the particulars of historical practice to reach outcomes that accord with contemporary ideas about equality and the state’s role in safeguarding it. The Court is not bound to perpetuate inegalitarian regulatory traditions in Rahimi any more than it was in Brown v. Board of Education75 or Loving v. Virginia.76 The main difference between Rahimi and the earlier cases is that the Court will now have to assert that its conclusions are perfectly originalist and that they follow directly and inescapably from pre-twentieth-century understandings.

Here is one way the Court could do that. The Fifth Circuit in Rahimi and the district court in Perez-Gallan accorded enormous weight to the fact that there were no gun laws in 1791 barring domestic abusers from owning guns. But historians have observed that the absence of such laws is not surprising because guns in the eighteenth century were very different from guns today: “Founding-Era firearms were cumbersome, slow, and inaccurate—not what one could quickly and impulsively use for violence typically committed in the heat of the moment.”77 For this reason, “‘[f]amily and household homicides—most of which were caused by abuse or simple assaults that got out of control—were committed almost exclusively with weapons that were close at hand,’ which were not loaded guns but rather ‘whips, sticks, hoes, shovels, axes, knives, feet, or fists.’”78 This evidence casts the absence of laws like § 922(g)(8) in 1791 in a new light: regulators in that era would have had no reason to ban perpetrators of domestic violence from owning guns because domestic gun violence was not a widespread social problem back then. The historical picture becomes even more complicated in light of the fact that there was some statutory and common law regulation of domestic violence in the late eighteenth century.79 These regulations did not systematically disarm perpetrators of domestic violence, for the reasons just mentioned, and they co-existed with social norms that granted men considerable authority over family members. But the fact that there were regulations in this period designed to curb domestic abuse—although they did not target guns because guns were not relevant to this issue back then—makes it harder to argue that § 922(g)(8) is clearly foreign to our regulatory traditions.80

Bruen itself provides a doctrinal pathway for this sort of argument. The Second Amendment Scholars brief in Rahimi notes that the Court in Bruen (and Heller) explicitly condoned raising the level of generality at which we define our regulatory traditions in certain instances to reflect current circumstances.81 For example, the Court acknowledged in Bruen that the Second Amendment was originally understood to protect the right to possess and use weapons that were “in common use at the time.”82 There is some evidence that “colonial laws prohibited the carrying of handguns because they were considered ‘dangerous and unusual weapons’”83 at the time—a practice that would arguably deprive handguns of Second Amendment protection today. But, the Court asserted, historical prohibitions on handguns “provide no justification for laws restricting the public carry of weapons that are unquestionably in common use today.”84 The Court explained that, “even though the Second Amendment’s definition of ‘arms’ is fixed according to its historical understanding, that general definition covers modern instruments that facilitate armed self-defense.”85 The Second Amendment Scholars argued in Rahimi that, under this reasoning, the Court ought to uphold the constitutionality of § 922(g)(8), because “historical analogues to modern firearms regulations [must] be evaluated at a level of generality commensurate with that used to define the scope of the Second Amendment right.”86 If the Court is prepared to raise the level of generality at which it defines traditional Second Amendment rights to extend protection to new (or newly popular) weapons, it must also raise the level of generality to allow the government to regulate new gun-related threats.

The Solicitor General presented the Court in Rahimi with yet another doctrinally plausible theory of the case. In her brief and at oral argument, she surveyed gun regulations before, during, and after the ratification of the Second Amendment and argued that these regulations revealed an unbroken, widely-held understanding that the government was permitted to enact laws disarming dangerous people.87 She argued that “the conception of what regulations that [historical principle] permits today is not controlled by Founding-era applications of the principle.”88 Indeed, she argued that courts should not adhere to eighteenth-century conceptions of dangerousness in this context because historical reticence to apply this label to domestic abusers “reflected the now-discredited belief that public authorities should not intervene to prevent domestic violence because doing so could undermine marital harmony.”89 She argued that the Court regularly identifies historical principles in constitutional law but raises the level of generality when applying those principles today to avoid perpetuating outmoded understandings.90 In keeping with this practice, she argued, the Court should uphold § 922(g)(8) as the kind of regulation the framers of the Second Amendment would have viewed as permissible even if Americans in the eighteenth century did not enact laws exactly like this one.

This Essay will be published before the Court issues its decision in Rahimi. It is not clear what the Court will hold. But it is useful to see, before the Court decides which direction to take, the various possibilities that lie before it. The Justices who have instituted the history-and-tradition test in the context of the Second Amendment have asserted that this test protects constitutional adjudication from the influence of contemporary ideologies by requiring judges to abide by historical understandings and regulatory traditions. But the historical record does not provide a definitive answer to the question of § 922(g)(8)’s constitutionality, in part because there is no single, neutral, objective standpoint from which to view the history. The federal courts that invalidated § 922(g)(8) claimed that they were interpreting the history objectively, that the absence of regulations like § 922(g)(8) in the historical record makes this a relatively easy case. But it is not true that the more closely one hews to past practice the more neutral one is: Bruen makes clear that the history-and-tradition test demands “historical analogues” not “historical twins.”91 It directs courts to engage in a certain amount of analogizing, and the Court in Bruen and Heller made clear that in some cases fidelity to tradition requires that we update our traditions so they make sense in the twenty-first century. Refusing to do so in the context of § 922(g)(8), which is designed to counteract the devastating modern epidemic of domestic gun violence, is not a value-neutral decision.

Most Court-watchers believe the Court will overturn the Fifth Circuit in Rahimi92—that it will find a way to generalize out from historical tradition at least enough to deny constitutional protection to the plaintiff in this case. That appears to be the only plausible outcome. To invalidate § 922(g)(8) would be egregiously out of step with current egalitarian commitments and difficult to justify given the Court’s willingness to abstract out from the details of historical practice in other contexts in which the history-and-tradition test applies, even other contexts within the Second Amendment. What will be more interesting to see is how the Court accounts for the modernizing inherent in deciding that a law stripping people under domestic-violence restraining orders of their guns fits within our historical tradition. The Court could explain, as it did in cases like Lawrence v. Texas93 and Obergefell v. Hodges94 that history is the jumping-off point, that we must abide by principles deeply rooted in our history and tradition but that our understanding of how those principles apply changes over time, particularly as we come to recognize the exclusionary ways we applied those principles in the past. If the Court opts for this approach, it could lay out some much-needed guidelines for how courts should engage in the practice of generalizing out from tradition in future cases. But the Court could also use the history-and-tradition test to avoid this obligation. Whatever outcome the Court reaches, it could insist that it is simply abiding by historical tradition and that its opinion follows inexorably from eighteenth-century understandings. Framing Rahimi that way would camouflage the value-laden choices involved in resolving this case, and it would leave more room for the Court to raise and lower levels of generality as it sees fit in future cases.

C. Now You See It, Now You Don’t: Adjusting Levels of Generality at the Roberts Court

It seems likely that the Court will ratchet up the level of generality at which it defines our regulatory traditions in Rahimi high enough to allow § 922(g)(8) to survive, at least in part. But if the Justices likely to engage in this ratcheting are hoping to accomplish this task without anyone noticing, they appear to be out of luck. Justice Jackson and Justice Kagan repeatedly called attention to this issue at oral argument in Rahimi with a series of questions designed to expose the fact that history-and-tradition doctrine does not actually bind courts to the past in any meaningful way.

Justice Kagan observed that, two centuries ago, “the problem of domestic violence was conceived very differently. People had a different understanding of the harm. People had a different understanding of the right of government to try to prevent the harm. People had different understandings with respect to pretty much every aspect of the problem.”95 Justice Jackson suggested there was evidence in “the historical record that domestic violence was not considered dangerousness back in the day[.]”96

The Fifth Circuit in Rahimi and the district court in Perez-Gallan cited this evidence regarding eighteenth-century conceptions of domestic violence as a central reason for invalidating § 922(g)(8), finding that the law was inconsistent with Founding Era beliefs about who could be rightfully disarmed. But Justices Jackson and Kagan did not cite this evidence to argue that § 922(g)(8) is unconstitutional. They cited this evidence to expose the fact that judges in history-and-tradition cases are not meaningfully constrained by history and tradition. Justice Kagan argued that the Court simply could not stomach adhering to historical understandings in this case—nobody in the courtroom “[could] stand . . . the consequences”97 of saying the government could not strip domestic abusers of their guns. Her point, and Justice Jackson’s as well, was that the “historical framing”98 does not do much analytical work in these cases. When history points in unappealing directions, even traditionalist judges raise levels of generality to bring constitutional outcomes in line with “modern sensibilities”99 and to avoid results that strike them as “untenable”100 today.

In light of the very obvious way in which courts generalize out from historical tradition to bring their decisions in line with modern sensibilities, Justice Jackson asked during oral argument, “what’s the point of going to the founding era?” Why frame the test as historical if history does not actually determine the outcomes in these cases?

Framing these cases in this way does serve a function, and not just an aesthetic or rhetorical function. If the Court insists that it is bound to adhere to history and tradition in every case, that means that in some cases, when it chooses, the Court really can adhere to historical practices—without offering any additional justification for its embrace of potentially outmoded ideas in these contexts. You can see this dynamic if you set Rahimi alongside cases like Lawrence and Obergefell. The Solicitor General argued in Rahimi that there is a long tradition in the United States of disarming “dangerous” people. Americans in 1791 may not have understood that perpetrators of domestic violence are “dangerous.” But we now understand that they are, and we’re not breaking with traditional principles by including them in this category; we are simply updating the applications of those principles in light of new understandings of the dangerousness of domestic violence.

This is precisely the kind of reasoning that fueled the Court’s holdings in Lawrence and Obergefell that people have a right to engage in same-sex intimacy and that same-sex couples have a right to marry. In both of those cases, the Court identified longstanding constitutional principles (protecting the liberty of consenting adult sexual relationships and the right to marry) and updated the applications of those principles in light of new understandings of the humanity of LGBTQ+ people and the negative consequences of stigmatizing their relationships and families. It is very possible, perhaps even likely, that the Court in Rahimi will find a way to preserve § 922(g)(8) by abstracting out from the actual practices and understandings of eighteenth-century Americans and finding that their core principles regarding dangerousness are broad enough to include perpetrators of domestic violence. But many of the Justices who may follow this path in Rahimi dissented in Obergefell. In the gay rights case, they were quite insistent that the Court was constitutionally bound to adhere very closely to the practices of our distant ancestors, and they harshly condemned the Court for raising the level of generality at which it defined our historical traditions to bring LGBTQ+ people into the fold.

Thus, regardless of the outcome in Rahimi—even if the Court upholds the law—there is something pernicious about what is happening here. Whatever happens in Rahimi, the case has brought into sharp focus the inegalitarian functioning of the history-and-tradition test and the broad discretion this test gives the Justices to make covert determinations about the weight of constitutional equality concerns. The Justices currently in the majority on the Roberts Court seem very willing to raise the level of generality at which they define our historical traditions when doing so will result in the punishment of perpetrators of domestic violence or increase the number of weapons protected under the Second Amendment. But when doing so would extend constitutional protections to LGBTQ+ people, they take a very different view of ratcheting up levels of generality; in the LGBTQ+ cases, they insist we must abide very closely by the practices and understandings of our great, great, great grandfathers.

Part II continues this discussion of the Court’s uneven willingness to define historical traditions in capacious ways and to bring twenty-first-century understandings to bear on its analysis in history-and-tradition cases. LGBTQ+ rights is not the only context in which the Court balks at abstracting out from the particulars of our historical traditions; the Court does so in the context of reproductive rights as well. Part II shows that the problem extends beyond partiality, the Court’s willingness to raise levels of generality to protect some groups and rights and not others. When the Court holds in certain cases that it is constitutionally compelled to hew very closely to past practice and adopt the particular understandings of our forefathers, it may need to ignore or disregard equal protection precedents that stand in the way of implementing those old understandings today. Part II shows that this is already happening in the context of reproductive rights—and that the attacks on equality that occur sub rosa in the Court’s history-and-tradition cases may actually cross doctrinal lines and have a tangible effect in the context of equal protection.

II. dobbs and the dismantling of modern equal protection law

The day after the Court adopted its new history-and-tradition test in the context of the Second Amendment in Bruen, it adopted a similar history-and-tradition test in the context of abortion in Dobbs. The Court held in Dobbs that substantive due process protects only those rights that are “deeply rooted in this Nation’s history and tradition,” and it explained that judges applying this test must hew very closely to historical traditions to avoid “confus[ing] what th[e Fourteenth] Amendment protects with our own ardent views about the liberty that Americans should enjoy.”101 The question in Dobbs was whether the right to abortion satisfied this test. The Court held that it did not.

There is much to say about the Court’s characterization of the history of abortion regulation in Dobbs. For instance, there was considerable evidence before the Court in Dobbs that Americans in the nineteenth century did view abortion as a fundamental right prior to the quickening of the fetus, and that even states that purported to ban abortion did not do so in practice, in part because the public would not accept the abrogation of this right.102 But even if we accept the Dobbs Court’s conclusion that abortion was not viewed as a fundamental right prior to the twentieth century—that it was not “deeply rooted in history and tradition”—we are still left with the problem this Essay addresses. The Court in Dobbs claimed it was bound by history to reject the right to abortion, case closed. But there are many other cases in which the Court has raised the level of generality at which it defines historical tradition in order to bring its decisions in line with modern equal protection principles.. It seems poised to do so in Rahimi; it has done so in the past in cases such as Obergefell, Lawrence, Loving, Griswold v. Connecticut,103 Brown v. Board of Education,104 and Bolling v. Sharpe.105 This variability in the Court’s approach to history means we cannot look solely to the past to explain the outcome in Dobbs. There are many canonical cases in which the Court does not abide by “history and tradition,” defined “carefully.” The past is not determining the different outcomes in these cases. The outcomes in these cases are being driven by contemporary judgments—not about history, but about equality, and about the compatibility of particular forms of regulation with modern understandings of equal citizenship.

Section II.A shows how the history-and-tradition frame hides the modern, value-laden judgments about equality that often drive the Court’s decision-making in these cases. This Section shows that history is not driving the outcomes in these cases. In fact, the Court in history-and-tradition cases often shapes history to suit its needs. “History and tradition” is a tool for reaching preferred outcomes. It is not a constant and objective metric by which the Court gauges the constitutionality of twenty-first-century regulation.

Section II.B shows that the problem with the Court’s history-and-tradition jurisprudence goes beyond a lack of candor and concerns about inconsistency and partiality. When the Court turns to equality to help it transcend constitutionally suspect historical traditions—either explicitly, by invoking equal protection law, or more covertly, by ratcheting up the level of generality at which it defines the relevant tradition—it may reinforce modern understandings of equality. But when the Court chooses not to invoke equality principles, in cases where they may be relevant, it can undermine equal protection, without acknowledging that it is doing so. This Section argues that that is what is happening in Dobbs. What the Dobbs Court frames as a straightforward reading of the historical record is actually a covert attack on sex-based equal protection law.

A. The Malleability and Uneven Application of “History and Tradition”

Justice Alito prefaced his discussion of the history of abortion regulation in Dobbs with a discussion of the importance of courts hewing very closely to history and tradition in deciding substantive due process cases. If they do not, he asserted, “the liberty protected by the Due Process Clause” could “be subtly transformed into the policy preferences of the Members of this Court.”106 Alito argued that “when the Court has ignored the [a]ppropriate limits imposed by respect for the teachings of history, it has fallen into the freewheeling judicial policymaking that characterized discredited decisions such as Lochner v. New York.”107 He warned that “[t]he Court must not fall prey to such an unprincipled approach”108 again. He claimed that the only way to avoid the incursion of contemporary politics into substantive due process cases is to determine with a very high degree of specificity the contours of our regulatory traditions and to adhere to those specific contours.109

One problem with this set of claims is that we, twenty-first-century Americans, cannot consistently bind ourselves to history and tradition, defined at the level of granularity this doctrine requires. We have repudiated too many regulatory traditions from the eighteenth and nineteenth centuries to feel comfortable hewing to those traditions now—particularly in cases involving historically subordinated racial and ethnic groups, women, immigrants, non-Protestants, people with disabilities, and various kinds of sexual and reproductive rights. Justice Ginsburg once observed that “[a] prime part of the history of our Constitution . . . is the story of the extension of constitutional rights and protections to people once ignored or excluded.”110 A major part of this process has involved jettisoning regulatory traditions we now recognize as inegalitarian and exclusionary. Courts have repeatedly concluded that such jettisoning is constitutionally required.

Justice Scalia often framed judicial disagreement in culturally contested areas as a conflict between progressives, who sought to update the Constitution by interpreting it in accordance with their own enlightened political views, and conservatives, who honored the Constitution—“the old one,” written by “our ancestors.”111 But the phenomenon described in the previous paragraph is one that cuts across political and ideological lines. The United States was founded hundreds of years ago; more than a century and a half has passed since the ratification of the Fourteenth Amendment. The country has experienced staggering cultural and political change in the intervening years. Progressives and conservatives today disagree about many things. One thing we share is an unwillingness to abide by many of the specific regulatory traditions of the eighteenth and nineteenth centuries.

Roberts Court Justices have called attention, in recent years, to numerous historical practices and traditions they now view as abhorrent. In Ramos v. Louisiana, Justice Gorsuch opened his majority opinion with a discussion of the racist origins of laws permitting nonunanimous juries to convict defendants of serious crimes.112 This practice may be facially race-neutral, but, Gorsuch observed, it developed in the Jim Crow era and it reinforced racial inequality, in part by “ensur[ing] that African-American juror service would be meaningless.”113 In Obergefell, Justice Thomas made similar observations about antimiscegenation laws; he described the “sordid history”114 of those laws and the way they reinforced “white supremacy”115 in the aftermath of the Civil War. In McDonald and Bruen, Thomas wrote at some length about the racism that pervaded gun regulation in the eighteenth and nineteenth centuries.116 He suggested that allowing such tainted regulation to persist into the present day would violate equal protection.

Justice Alito has expressed similar concerns about the history of gun regulation. He spent several pages in his majority opinion in McDonald discussing the racism that undergirded gun regulation prior to (and well into) the twentieth century.117 At the oral argument in Bruen, he suggested “that a major reason for the enactment of” New York’s law restricting concealed carry “was the belief that certain disfavored groups, members of labor unions, Blacks, and Italians, were carrying guns and they were dangerous people.”118

In Espinoza v. Montana Department of Revenue,119 Justice Alito engaged in a lengthy and impassioned disquisition on the bigotry that motivated the regulation of religious schools in the second half of the nineteenth century. He described the “virulent prejudice against immigrants, particularly Catholic immigrants,”120 that pervaded American politics and lawmaking in this period. He discussed the major wave of immigration that occurred in the mid-nineteenth century and the “nativist fears” this new influx of people triggered. He noted that “[a]n entire political party, the Know Nothings, formed in the 1850s ‘to decrease the political influence of immigrants and Catholics,’ gaining hundreds of seats in Federal and State Government.” He observed that, even beyond the Know Nothings, many state and federal legislators in the second half of the nineteenth century were deeply biased against Catholics and that this bias routinely infected their lawmaking.121 Indeed, Alito argued that lawmaking in this period was so saturated with anti-Catholic bigotry its taint persists even today, and courts must be extra-vigilant to ensure current laws do not perpetuate such outmoded views.122

Now, let us turn to Dobbs. The American Historical Association, the world’s largest professional organization devoted to the study of history, and the Organization of American Historians, the largest professional organization devoted to the study of U.S. history, submitted an amicus brief in Dobbs that reaffirmed Justice Alito’s description of the second half of the nineteenth century as a period awash in anti-immigrant, particularly anti-Catholic, sentiment.123 The historians’ brief showed how “consternation over immigrant Catholics out-reproducing native white Protestants”124 fueled anti-abortion lawmaking in this period. The brief described the success of the “physicians’ campaign,” started by Horatio Storer in 1857, in persuading many state legislatures to enact new bans on abortion.125 The brief showed that this campaign was motivated not only by concerns that Catholic immigrants were producing more children than Protestants, but also by concerns that married women were “shunning their proper roles as mothers by choosing abortion.”126 This was the period in which Justice Bradley famously opined that it was constitutional to bar women from the practice of law because “[t]he paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother.”127 Lawmakers in these years routinely voiced this sentiment and legislated accordingly.

In Dobbs, however, Justice Alito rejects the idea that anti-Catholic sentiment could have influenced the regulation of abortion in this period. He responds to the historians’ brief by asking, incredulously: “Are we to believe that the hundreds of lawmakers whose votes were needed to enact [laws restricting abortion] were motivated by hostility to Catholics and women?”128 It is hard to square Alito’s incredulity in Dobbs at the suggestion that anti-Catholic sentiment influenced abortion-related lawmaking in the mid-nineteenth century with his lengthy account of the widespread anti-Catholicism of legislators in this same period in Espinoza. It is even harder to understand his incredulity at the suggestion that nineteenth-century lawmakers could have legislated in ways that reflected hostility to women. Lawmakers in this period denied women the right to vote, the right to serve on juries, the right to attend many schools, and the right to pursue many professions; they generally failed to regulate domestic violence; they routinely questioned women’s physical and mental capabilities and insisted that women’s primary purpose was to care for their families. Perhaps Alito is getting tripped up on the word “hostility” (his word—not one the historians used). Because it is not in the least bit difficult to believe that nineteenth-century legislators passed laws that forced women into traditional sex and family roles (which is what the historians argued about abortion laws). Nineteenth-century legislators did that all the time.

After expressing incredulity at the suggestion that the lawmakers who enacted abortion bans in the second half of the nineteenth century might have been motivated by prejudiced views of Catholics and women, Justice Alito argued that these bans were “instead spurred by a sincere belief that abortion kills a human being.”129 But believing that abortion kills a human being and worrying about the decline of the native population and women’s wavering commitment to traditional sex roles are not mutually exclusive. In fact, the historians’ brief shows that the nineteenth-century campaign against abortion was motivated by all these concerns.130

In other cases—not involving abortion—Justice Alito and his colleagues in the Dobbs majority have been perfectly capable of recognizing mixed legislative motives. The existence of genuine concerns about the dangers presented by guns did not prevent the Justices from recognizing the racism underlying some forms of gun regulation. Legitimate concerns about protecting funding for public schools and avoiding excessive entanglement between church and state did not prevent Justice Alito from detecting the taint of anti-Catholicism in laws withholding state funding from religious schools. But in Dobbs, the Court applies a different filter. In cases like McDonald, Bruen, Ramos, and Espinoza, the Court is on high alert, keeping an eye out for discriminatory views that might have informed regulatory traditions in the past and scrutinizing current laws to ensure they do not carry with them even the smallest taint of those old views. In Dobbs, the Court takes the opposite approach, suggesting it is ludicrous to be suspicious of the motivations of nineteenth-century lawmakers and dismissing any concerns about the role of outmoded views in shaping regulatory traditions governing pregnancy and reproduction.

This gives the lie to the idea that the Court’s new history-and-tradition tests constrain judges, or enable them to discern what the law really is, in ways that living constitutionalist modes of interpretation do not. Judges who advocate these tests often concede that “[h]istorical analysis can be difficult; it sometimes requires resolving threshold questions, and making nuanced judgments about which evidence to consult and how to interpret it.”131 But, they insist, the history-and-tradition test is much “more determinate and ‘much less subjective’ because ‘it depends upon a body of evidence susceptible of reasoned analysis.’”132 As a result, they argue, “the range of potential answers will be far more focused under an approach based on text, history, and tradition.”133

This is not true. It is not true because there are a thousand and one “shadow decision points”134 involved in applying history-and-tradition tests. In some cases, courts accord deference to professional historians. In Dobbs, the Court dismisses the historians’ brief and draws much of its historical analysis from the work of a retired Villanova law professor who is not a professional historian.135 There is no debate that the period in which many states adopted abortion bans was one of intense nativism and widespread concern about the growth of the Catholic population. There is no debate that women in this period were treated as second-class citizens and generally bound by law to conform to traditional sex and family roles. Yet the Court treats it not only as wrong but as laughable when the nation’s leading organizations of historians assert that anti-immigrant and gender-inegalitarian views influenced the passage of laws regulating pregnancy and reproduction in this period.136

This is not the approach the Court takes when it looks to see if outmoded views influenced the historical regulation of guns or religious schools. In those contexts, the Court portrays late-nineteenth-century legislators as white supremacists who were fervently hostile to Catholics. When it comes to abortion, the Court insists their motivations were as pure as the driven snow. When one compares the Court’s account of mid-to-late nineteenth-century lawmakers in Dobbs with its account of those very same lawmakers in other cases (cases in which the Justices in the Dobbs majority are less sympathetic to governmental regulation), there seems to be more at work than historical analysis.

This same variability in the Court’s characterization of the past is evident in its determinations about which substantive due process precedents satisfy the history-and-tradition test and which do not. The Court announces in Dobbs that the Fourteenth Amendment protects only those rights that are deeply rooted in “history and tradition.” It holds in Dobbs that abortion fails this test, and it acknowledges that this test raises concerns about the fate of LGBTQ+ rights and other reproductive rights, such as the right to contraception.137 But it makes no mention of other substantive due process decisions that also appear to fail this test. Bolling v. Sharpe138—the 1954 case in which the Court interpreted the Due Process Clause of the Fifth Amendment to bar racial segregation in D.C. schools—clearly fails Dobbs’s test. It is hard to argue that the right of Black children to attend integrated schools was deeply rooted in this nation’s historical traditions in 1791. Loving’s due process holding139 fails the test as well; the right to interracial marriage was not deeply rooted in this nation’s history in 1868. Justice Scalia argued that Meyer v. Nebraska,140 a 1923 case protecting the substantive due process right of parents to have their children educated in a foreign language, also failed this test.141 The Court in Meyer certainly did not establish that this right was viewed as fundamental in 1868.142 Justice Stevens argued that the history-and-tradition test would also “vaporize” 143 Pierce v. Society of Sisters144—a 1925 decision protecting the fundamental right of parents to send their children to Catholic school. Yet when Justice Alito and Justice Thomas discuss cases that may fail to satisfy Dobbs’s history-and-tradition test, they cite only cases involving LGBTQ+ and reproductive rights.

All of which is to say, there is clearly something other than history and tradition driving the analysis here. The due process rights recognized in Bolling and Loving were no more deeply rooted in this nation’s history and traditions circa 1791 or 1868 than those recognized in Griswold, Roe, Lawrence, and Obergefell. We need to look elsewhere—at something other than history and tradition—to understand the Court’s differential treatment of these cases.

The factor that is actually driving the Court’s analysis is equality. The Justices in the majority in Dobbs put Bolling, Loving, Meyer, and Pierce on one side of a dividing line, and Griswold, Roe, Lawrence, and Obergefell on the other side of that line. But that line has little to do with history and tradition or the practices of Americans in the eighteenth and nineteenth centuries. If Bolling, Loving, Meyer, and Pierce survive after Dobbs, it will not be because the rights recognized in those cases were deeply rooted in history and tradition, defined at a high level of specificity. They will survive because the Court, motivated by contemporary understandings of equality, will override the results of the history-and-tradition test in those cases.

This overriding could take many forms: the Justices could cite stare decisis; they could rely explicitly on the Equal Protection Clause or the First Amendment; they could bump up the level of generality at which they define the relevant historical tradition. But one way or another, the Justices will ensure the outcomes in these cases comport with twenty-first-century notions of equality. When it comes to reproductive and LGBTQ+ rights, however, the Justices in the majority in Dobbs have signaled they will not deploy equality to save decisions that fail their new test. In other words, 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 means that attempting to identify which rights and regulatory traditions were “deeply rooted” in 1791 or 1868 will not generate reliable information about the likely outcome of a history-and-tradition case. The conservative Justices’ views about equality are a far more reliable predictor than our nation’s history and traditions of which rights and regulations will survive under the Court’s new history-and-tradition test. And when judges make equality determinations in history-and-tradition cases, they are not relying on the judgments of our ancestors about what equal protection entails. They are relying on their own, frequently unvoiced, judgments about what counts as inegalitarian—judgments that may or may not match the perceptions of the American public (at any point in our history). To call this fidelity to the past is a smokescreen. It obscures what is actually happening in these cases.

B. The Dark Side of Doing Equal Protection in the Dark

Thus far, this Essay has focused on the malleability and rule-of-law problems associated with making equality determinations behind the screen of “history and tradition.” It is difficult to predict the outcomes of cases using the history-focused doctrine the Court says it is employing because the real work is happening elsewhere. The fact that this often outcome-determinative equality work happens out of sight enables the unequal treatment of rights and groups. Judges can be tougher on eighteenth- and nineteenth-century lawmakers when they want to countermand what those lawmakers did (say with respect to guns or religious schools) and easier on them when they want to preserve historical forms of lawmaking (say with respect to reproductive or LGBTQ+ rights). They can override or depart from the particular regulatory practices of those lawmakers in cases like Rahimi, in which they can no longer abide eighteenth- and nineteenth-century views about women, and overlook those views in cases like Dobbs, in which they are more comfortable with the regulatory practices at issue.

This Section focuses on a related but distinct problem with the Court’s history-and-tradition jurisprudence. History-and-tradition cases do not occur in a vacuum. When the Court makes major (often unstated) determinations about equality in these cases, those determinations are not hermetically sealed off from the rest of the law. The Court’s (stated or, mostly, unstated) reasoning about equality in history-and-tradition cases bleeds into and affects other areas of the law. This is particularly true in the context of the Court’s substantive due process cases. Constitutional scholars have long recognized that substantive due process and equal protection are tightly interconnected—like a double helix.145 In some circumstances, this synergy has led to an expansion of rights, as when the Court’s substantive due process decisions in Lawrence and Obergefell fortified equality-based LGBTQ+ rights claims. When the Court contracts substantive due process rights, however, this synergy can lead to a contraction of equal protection. This Section examines the potential implications of Dobbs—and all of the stated and unstated equality judgments embedded in the Dobbs Court’s history-and-tradition analysis—for sex-based equal protection law.

As the preceding Section showed, the Dobbs Court rejected historical accounts of the role of gender stereotyping in the restriction of abortion in the nineteenth century. But amicus briefs in the case raised a host of other equality concerns as well. Numerous briefs focused on the deleterious consequences for women and other people capable of pregnancy when states criminalize reproductive healthcare.146 These briefs argued that states have many nonpunitive, noncoercive tools for nurturing life and encouraging people to continue their pregnancies. Lack of financial resources is among the most cited reasons people give for obtaining abortions.147 States could address those concerns, and promote life and health, through various noncarceral approaches that respect the agency of pregnant people, including: instituting evidence-based sex education programs that help to reduce unplanned pregnancies, which are far more likely than planned pregnancies to result in abortion; making contraception widely available and mandating its coverage in health insurance plans; expanding Medicaid to ensure people receive essential pre- and post-natal care; providing pregnant people with nutrition and housing support and access to drug and alcohol treatment programs; guaranteeing high-quality childcare and paid parental leave; and passing laws that protect pregnant workers.148

When states eschew such measures and opt instead to institute criminal bans that threaten the wellbeing of pregnant women and others, and deprive them of agency and authority over their own lives, this raises concerns about whether the state is treating women and people capable of pregnancy with equal regard. Briefs in Dobbs argued that there is special cause for concern from an equality standpoint because punitive approaches to abortion take their harshest toll on Black women, women of color, and poor women, who have always been targeted by, and suffered disproportionately as a result of, governmental efforts aimed at controlling reproduction.149 Briefs argued that overturning Roe would exact a particularly terrible toll on these women.150 But, numerous briefs observed, no pregnant person can escape the threat posed by criminal abortion laws, because abortions are required in all sorts of circumstances in which the fetus is compromised and the pregnant person’s life and health are at risk.151

When states enacted criminal abortion laws in the second half of the nineteenth century, women were second-class citizens under the law. They were deprived of basic rights and viewed as inferior to men. They were often denied agency and autonomy and forced to conform to traditional sex and family roles. Lawmakers in this period regularly opined that motherhood was women’s highest calling, and they restricted women’s rights in various ways to ensure women pursued this calling. The Dobbs Court concluded that laws forcing women to continue their pregnancies were an exception to this general dynamic. But the Court did not—could not—dispute that, in the period in which abortion bans were originally enacted, women were legally relegated to second-class status.

This raises the question: Is it constitutionally permissible to revive a nineteenth-century regulatory tradition—a regulatory tradition that restricted women’s rights in a period in which the state routinely denied women rights—today, in the twenty-first century, when we have a very different understanding of women’s constitutional status? Constitutional law now requires the state to respect women’s equal citizenship; it bars the state from regulating in ways that reflect and reinforce traditional understandings of women’s sex and family roles. Can governments today reinstitute (and enact even harsher) criminal abortion laws, given all the legal development that has occurred with respect to women’s equality in the century and a half since those laws were passed?

The Dobbs Court claimed it was bound by history: Americans in the eighteenth and nineteenth centuries did not protect the right to abortion, so courts today cannot protect that right either. But courts are not actually bound in this way; they regularly override or depart from history and tradition when they decide that old regulatory traditions are inconsistent with modern conceptions of equality. That is what the Court did in Bolling and Loving, and Lawrence and Obergefell; it may soon do the same in Rahimi. The Court’s insistence in Dobbs that its hands are tied by history is flatly contradicted by the cases in which the Court decides it is not bound by the past. The Dobbs Court affirmatively decided to allow traditional abortion regulation to be revived today, despite what we know about the history of laws regulating pregnant women in this country and the deleterious effects of carceral approaches to abortion on women and pregnant people.

This is how history-and-tradition decisions, even when they purport to turn solely on historical analysis, may undermine contemporary understandings of equal protection. When the Court draws on modern notions of equality to block some regulatory traditions, but not others, it makes determinations not just about the shape of substantive due process, but also about the content and scope of equal protection law. In many of the cases cited in this Essay, the Court makes these determinations in the dark. The fact that judges make these determinations in the dark means they are not particularly constrained by equal protection precedents; they can follow or ignore those precedents as they see fit because the equality work in history-and-tradition cases takes place completely out of view. It is not hard to see how equal protection law could be silently undermined in this way. If judges choose not to draw on equality principles to depart from histories and traditions that conflict with modern equal protection law, they may erode that law without ever mentioning the word equality.

Somewhat unusually—and maybe because the equality argument was so pressing in this case—the Court did not remain entirely silent on the subject of equality in Dobbs. It reached out, in a few lines of dicta, to address the equality question explicitly.152 The Court asserted in Dobbs that concerns about equality have no place in the context of abortion regulation; equal protection simply does not extend to this form of regulation.153

The Court supported this pronouncement on the scope of equal protection law by citing a fifty-year-old case called Geduldig v. Aiello.154 Geduldig held that a pregnancy classification was not a sex classification for the purposes of equal protection. This decision has not been formally overruled. But that is the best one can say about Geduldig. In concluding that pregnancy discrimination is not sex discrimination, Geduldig relied on the same sort of formalistic contortion of logic courts used earlier in the twentieth century to hold that antimiscegenation laws did not discriminate on the basis of race because they barred everyone from marrying across racial lines.155 In Geduldig, the Court held that pregnancy discrimination was not sex discrimination because pregnancy was an “objectively identifiable physical condition” affecting only a subset of women—so there was no sex-based line being drawn.156 This is not precisely the same logical contortion courts relied on to insulate antimiscegenation laws from equal protection scrutiny. What links these analyses is that they are completely denuded of any social context. When Geduldig reached the Court in the early 1970s,the Court had just recognized that antimiscegenation laws perpetuated racial subordination. But it could not yet recognize how the regulation of pregnant women might reenforce sex-based hierarchies and it could not yet conceive of applying constitutional equality protections across biological difference.

It is not hard to fathom why the Justices cordoned off the regulation of pregnancy from equal protection scrutiny the way they did in Geduldig. Five of the six Justices in the majority were born before women in the U.S. obtained the right to vote (the sixth, Justice William Rehnquist, was born just after, in 1924). These men “came of age in an era in which the exclusion of pregnant women and mothers from the public sphere was viewed as entirely natural, an outgrowth of biological difference and a benign reflection of the fact that women’s primary calling is to have children and care for their families.”157 Geduldig predated the construction of modern sex-based equal protection law. It arrived on the Justices’ desks before the Court had even adopted a framework for analyzing sex-based state action.

Few areas of law have evolved more in the past half century than sex-based equal protection law. This evolution has turned Geduldig into a constitutional relic. Its burial began soon after it was decided. In 1978, Congress repudiated the Court’s efforts to import Geduldig’s reasoning into federal employment-discrimination law by enacting the Pregnancy Discrimination Act (PDA), which defines discrimination on the basis of pregnancy as discrimination on the basis of sex for purposes of Title VII of the 1964 Civil Rights Act.158 Soon after the PDA’s enactment, the Court began issuing major rulings enforcing the law’s prohibitions on pregnancy discrimination.159 Once the Court began enforcing the PDA, it stopped invoking Geduldig in equal protection cases. The Court has not issued a single majority opinion (aside from Dobbs) invoking Geduldig to interpret the Equal Protection Clause since it began enforcing the PDA in the late 1970s.

In more recent equal protection decisions, the Court has explicitly repudiated Geduldig’s reasoning. In 1996, in United States v. Virginia,160 the Court explained that it had come to understand that women are entitled to be treated as men’s equals notwithstanding “[i]nherent differences”161 between the sexes. The Court explained that laws that classify on the basis of sex “may be used to compensate women ‘for particular economic disabilities [they have] suffered,’ to ‘promot[e] equal employment opportunity,’ [and] to ‘advance full development of the talent and capacities of our Nation’s people.’”162 But, the Court warned, “such classifications may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women.”163

The Court made clear that pregnancy is the main “inherent difference” involved in this analysis by citing a state law governing pregnancy (a maternity leave benefit, upheld under the PDA in California Federal Savings & Loan Ass’n v. Guerra164) as a paradigmatic example of a sex classification that is constitutional because it advances women’s equality.165 The Court explained in this passage in Virginia that equal protection does not require the state to ignore the physical reality of pregnancy, but that laws regulating pregnancy must be designed to promote equal opportunity and may not perpetuate women’s subordination. Eschewing Geduldig’s formalism, the Court in Virginia reasons about laws regulating pregnancy in a way that takes account of social context, asking whether the regulation promotes equal opportunity or perpetuates the inferiority of women.

The Court echoed and expanded on these principles in 2003, in Nevada Department of Human Resources v. Hibbs.166 The Court held in Hibbs that Congress could enforce the Equal Protection Clause by enacting the family leave provisions of the Family and Medical Leave Act to redress the stereotyping and exclusion of pregnant workers. Chief Justice Rehnquist held that Congress’s provision of family leave was an appropriate means of enforcing equal protection because many states’ maternity leave policies were “not attributable to any differential physical needs of men and women, but rather to the pervasive sex-role stereotype that caring for family members is women’s work.”167 The Hibbs Court echoed Congress’s observation that, “[h]istorically, denial or curtailment of women’s employment opportunities has been traceable directly to the pervasive presumption that women are mothers first, and workers second,” and that “[t]his prevailing ideology about women’s roles has in turn justified discrimination against women when they are mothers or mothers-to-be.”168 This reasoning—about the central role the regulation of pregnancy has played in the deprivation of equal protection for women—rejects the logical contortions the Court engaged in half a century ago to exclude laws regulating pregnancy from constitutional review. Hibbs emphasized not only that laws regulating pregnant women may constitute sex discrimination, but that redress of such discrimination is a core concern of sex-based equal protection law.

How does Dobbs grapple with these legal developments? It doesn’t. In the passage in Dobbs addressing the applicability of equal protection doctrine to abortion regulation, Justice Alito steadfastly avoids any mention of Virginia or Hibbs. Instead, he reaches back to Geduldig—a case decided fifty years ago, before the development of modern sex-based equal protection law—and insists that that old case “squarely foreclose[s]”169 the application of equality doctrine to abortion. It is an aggressive move, this erasure of the two most important constitutional sex discrimination cases of the last thirty years. One of the reasons it’s aggressive is that erasing Virginia and Hibbs not only undermines the right at issue in Dobbs, it threatens to reverse decades of development in sex-based equal protection law.

The Court’s discussion of equal protection in Dobbs is dicta—but there are consequences to this kind of revisionism. Already the Sixth Circuit has relied on this dicta in breaking with other federal courts and upholding two state bans on gender-affirming medical treatments for transgender minors.170 Chief Judge Jeffrey Sutton repeatedly cites Dobbs and Geduldig in his majority opinion for the proposition that sex-based equal protection law “does not apply in the context of medical procedures unique to one sex or the other.”171 He very tellingly observes that the Supreme Court has articulated this approach to “real differences” twice: “One year ago [in Dobbs], and nearly fifty years ago [in Geduldig].”172 Like the Court in Dobbs, he omits any mention of the legal developments that occurred in the intervening half-century—at the Supreme Court and in his own Circuit. Sutton posits that laws banning transgender girls from taking estrogen and transgender boys from taking testosterone are akin to laws regulating pregnant women: all these laws regulate medical procedures unique to one sex and thus raise no equal protection concerns. These are precisely the kind of logic games, stripped of any social context, Dobbs encouraged when it revived Geduldig and disregarded critical developments in sex-based equal protection law over the last fifty years.

The central aim of this Essay is to show that there is a considerable amount of equality-related work occurring in the Court’s new history-and-tradition cases. Sometimes, as in Rahimi, that work is buried within the Court’s historical analysis; sometimes, as in Dobbs, it rises to the surface. Much of this Essay is devoted to showing that reasoning about equality—whether buried or on the surface—can and often does affect the outcome of history-and-tradition cases. The Court frames its analysis in terms of history, but in many cases, conceptions of equality are what actually determine whether a right gets protected or a regulation stands.

This final Section shows that this process is a two-way street. Judicial conceptions of equality influence the outcome of history-and-tradition cases. But the equality work that occurs in history-and-tradition cases can also boomerang back and influence equal protection law itself. As Dobbs illustrates, the Court need not issue any formally precedential statements about equality to work a change in equal protection law. Change can also occur through a kind of erosion, a subtle undermining of the foundation. When the Court next takes up an actual equal protection case—particularly if that case involves gender or sexuality—we may find the protections in these areas are not as robust as they once seemed.

Conclusion

There is a substantial (and still growing) literature that criticizes originalist and traditionalist methods of interpretation for insisting that the Constitution’s meaning can be determined only by consulting the dominant views of the slave-owning, patriarchal society the United States used to be.173 Racial minorities, immigrants, women, and many other people now viewed as equal members of American society were not equally represented at the time our Constitution was written and our eighteenth- and nineteenth-century regulatory traditions were constructed. These people did not have an equal say in shaping the “original public meaning” of our laws (and our methods for determining “original public meaning” are not good at picking up their voices). To locate the Constitution’s meaning solely in the distant past is to perpetuate this exclusion. It is not value-neutral to turn to a white supremacist, patriarchal society to determine the rights of people of color and women today.

This Essay adds another dimension to this critique by showing that, in fact, even the most traditionalist courts do not actually adhere to history and tradition with any degree of consistency. American society has changed too much in the centuries since the Constitution was drafted for that to be possible. The Constitution’s framers and ratifiers engaged in too many practices and had too many views we now consider abhorrent for history-and-tradition doctrine to function in the way the Court suggests. Justice Kagan accused Zackey Rahimi’s lawyer of running away from the implications of history-and-tradition doctrine.174 But we are all like that lawyer. None of us can consistently abide the implications of this doctrine.

That is generally a cause for celebration—a significant marker of social progress. But it presents a substantial problem for history-and-tradition doctrine. Courts applying this doctrine need to figure out how to move with the times without admitting that they are doing so. The result is a lot of maneuvering in the dark—adjusting levels of generality and characterizing historical traditions in ways that silently incorporate (or fail to incorporate) current understandings of equality, while pretending to defer to our ancestors. This practice transfers an enormous amount of power from the people and their elected representatives to the courts. It enables judges to shape the law to suit their own conceptions of liberty and equality without having to provide reasons for their differential handling of historical traditions or to justify their differential treatment of various rights and groups.

Justice Scalia once criticized judicial practitioners of living constitutionalism for openly departing from history and tradition and explicitly stating their reasons for doing so. He claimed that the fact that “such usurpation is effected unabashedly, with ‘the judge’s cards . . . laid on the table,’—makes it even worse.”175 He argued that, “[i]n a vibrant democracy, usurpation should have to be accomplished in the dark.”176 The ascendance of history-and-tradition doctrine has enabled such usurpation to be accomplished in the dark. But it is far from clear that this is a positive indicator of the health of our democracy.

McDonald/Wright Chair of Law, UCLA School of Law. Thank you to Joey Fishkin and Reva Siegel for their extremely insightful comments on earlier drafts of this Essay. Thanks to Kalina Kasmierczak for outstanding research assistance. And a very big thank you to the editors of the Yale Law Journal, especially Alex Johnson, for their editorial assistance and for bringing this Collection into being.