The History Test

Fascinating article about how conservative and liberal Justices use history to win legal arguments, or how do we make society progress and justice protect more open families.


The legal battle for equal protection means that judges have to decide what rights fall under the definition of due process and equal protection. The 2 possibilities are: precedent and reasonable judgment.

History, in one fashion or another, has a place in most constitutional arguments […] Generally, appeals to tradition provide little relief for people who, historically, have been treated unfairly by the law.

The “History test” term comes from a 1934 opinion that proposed a

standard for measuring the weight of tradition in fundamental-rights cases, a standard sometimes known as the history test.

It has been used, in recent decades, to help determine the constitutionality of everything from assisted suicide to deportation, by the unlikely route of judicial decisions about sex.

Some books are even written “for the sake of court battles to come”.

Liberals began applying the history test to fundamental-rights cases at the very moment that women and minorities were entering the historical profession and writing history that liberal-minded judges might be able to cite.


I was enlightened to learn that some rights are written down (eg. freedom of religion); and some aren’t (eg. right to marry) which doesn’t mean that they’re less fundamental. And that the Constitution, as originally drafted, did not include a bill of rights (The Bill of Rights was ratified in 1791).

In some cases, the constitutional interpretation reaches back to the dawn of time v the narrow originalism, a new historical method coined in 1980, which asks judges to read only the books on a single shelf in the library (the writings of delegates to the Constitutional Convention and the ratifying conventions, the Federalist Papers) and a handful of other newspapers and pamphlets published between 1787 and 1791.

eg. on same-sex marriage, Justice Kennedy reached back almost to the earliest written records of human societies. […while…] Justice Scalia mostly confined himself to the past century and a half.

As crazy as it sounds to limit an argument to interpretation or laws from 200 years ago, I love Chemerinsky’s conclusion from 1993:

“The constant use of history to justify conservative results leads to the cynical conclusion that the country has a seventeenth century Court as it enters the twenty-first century,”