Results, Then History: Choosing History and Tradition Based on Expected Case Outcomes
Open PDF in New TabARTICLE
Results, Then History: Choosing History and Tradition Based on Expected Case Outcomes
Joseph Blocher*
The most prominent arguments for history-and-tradition (HAT) tests in constitutional law have focused on the degree to which such tests either constrain judicial discretion1 or accurately reflect a binding original understanding.2 But those are not the only, nor even the most intuitive, normative reasons for favoring HAT. A third argument might be the straightforward consequentialist prediction that HAT will lead to desirable case outcomes, such as achieving a proper accommodation between a constitutional right and permissible regulation. And indeed, when advocates (and sometimes scholars or even judges) argue for or against HAT tests, they sometimes begin with whether such tests will generally set a desirable degree of protection for the rights they care about.
Continue reading in the print edition . . .
© 2026 Joseph Blocher. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.
* Lanty L. Smith ‘67 Distinguished Professor of Law, Duke University School of Law. Many thanks to the editors of the Notre Dame Law Review, to Marc DeGirolami, Rick Garnett, Christopher Green, and John Inazu for valuable comments and critiques, and to Andrew Touma for excellent research assistance.
1 See, e.g., United States v. Rahimi, 144 S. Ct. 1889, 1922 (2024) (Kavanaugh, J., concurring) (arguing for a “history-based methodology” on the basis that it “imposes a neutral and democratically infused constraint on judicial decisionmaking”); Reva B. Siegel, The Levels-of-Generality Game: “History and Tradition” in the Roberts Court, 47 HARV. J.L. & PUB. POL’Y 563, 579 (2024) (discussing argument for judicial constraint in Bruen).
2 Sherif Girgis, Unfinished Liberties, Inevitable Balancing, 125 COLUM. L. REV. 531, 542–43 (2025) (“Bruen warned that judges balancing might contradict a balance struck by the framers. . . . Every recent conservative Justice has embraced this point.”).