I've been giving a lot of thought to the Ten Commandments case that should be appealed to the Supreme Court this summer. Very few people alive today can remember a world before the Warren Court established the separation of church and state. Likewise, prior to Dobbs, very few women of reproductive age could remember a time before the Burger Court established a constitutional right to abortion. The Supreme Court often considers how longstanding a legal tradition is. But many of the traditions established by the Warren and Burger Court stretch back five, six, and even seven decades. In a new Civitas Outlook, essay, I explain that the relevant tradition is the tradition the people established, not the tradition the Court imposed.
Here is the introduction:
In recent years, the Supreme Court has followed a tripartite approach to originalism. First, the Court asks whether the plain text of the Constitution neatly resolves the case. Second, if textualism does not provide a clear answer, the Court considers the history that predated the adoption of the relevant text—what did people say and do before ratification. Third, if the dispute remains unresolved based on the text and history, the Court will consider how the people understood and implemented that text after ratification — the so-called tradition.
The third inquiry, however, faces a practical problem: the Warren and Burger Courts. Between the 1950s and 1980s, the Supreme Court actively and brazenly altered nearly every facet of our polity. Longstanding traditions were disregarded, and the justices instead imposed their modern sensibilities on the American people. The examples are legion. The Court completely rewrote how our society approaches speech, religion, sex, and more. Today, we are still living in the shadow of those Platonic guardians. Indeed, court-created "traditions" from those decisions now stretch nearly three-quarters of a century. As America celebrates its 250th birthday, the courts face a conflict. Which tradition prevails: the first 175 years when the people were allowed to govern themselves, or the last 75 years when we lived under judicial rule?
