History Versus Policy? Does History and Tradition Really Limit Judicial Discretion?

Vincent Phillip Muñoz*

This Essay contends that the judicial distinction between history and policy may not be quite as sharp as Justice Kavanaugh suggests.⁶ In some areas of constitutional law, history does not provide a singular view or doctrine. Indeed, history may allow or even require a judge to adopt a preferred policy under the guise of following history.⁷ I make this argument via commenting on the three Symposium articles addressing the First Amendment’s Religion Clauses. In her paper, Nicole Garnett raises difficulties with applying history and tradition in the context of religion cases pertaining to public schools.⁸ Since public schools did not exist at the time of the adoption of the Bill of Rights, which history and which time periods can a judge consult?⁹ Annika Barkdull, while exploring the historical origins of denominational neutrality, indirectly points to a different though related difficulty: which history should a judge invoke when multiple histories exist?¹⁰ Michael Helfand seeks to map the terrain of post-Carson Free Exercise Clause jurisprudence and how Carson could reshape church-state constitutional law.¹¹ His speculations help us see that history may not be as constraining as Justice Kavanaugh’s history-or-policy dichotomy suggests.¹² If one attempts to apply history and tradition to the Religion Clauses, significant shortcomings and difficulties of the approach emerge, especially if it is defended in terms of limiting judicial discretion. At least in matters of church-state law, a turn to “history and tradition” likely will not prevent judges from devising policy.

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© 2026 Vincent Phillip Muñoz. 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.

* Tocqueville Professor of Political Science and Concurrent Professor of Law, University of Notre Dame.

6 Let me note that I do not here consider whether history and policy exhaust the alternatives. One possible alternative would be to turn to the underlying natural rights political philosophy that animated the Constitution as a whole and various provisions in particular.

7 For an earlier statement making this argument, which this Essay complements, see generally Vincent Phillip Muñoz, History and Tradition in the Trump Justices’ Church-State Jurisprudence, 713 ANNALS AM. ACAD. OF POL. & SOC. SCI. 183 (2024). See also Reva B. Siegel, The Levels-of-Generality Game: “History and Tradition” in the Roberts Court, 47 HARV. J.L. & PUB. POL’Y 563, 584 (2024) (“[T]he Justices engaged in history-and-tradition modes of decision making have more discretion than their own self-accounting suggests.”).

8 Nicole Stelle Garnett, The Original Understanding of the First Amendment in Public Schools, 101 NOTRE DAME L. REV. 1271 (2026).

9 Id. at 1273–74.

10 Annika Barkdull, The Historic Origins of Denominational Neutrality, 101 NOTRE DAME L. REV. 1471 (2026).

11 Michael A. Helfand, Mapping Carson: New Frontiers of Religious Exclusion in Government Programs, 101 NOTRE DAME L. REV. 1283 (2026).

12 See id. at 1286–87.