Abstract
The goal of this Article is to develop the current history and tradition standard. I argue that the Bruen use of history and tradition is not a more principled or better way of interpreting the Constitution than the infamous tiers of scrutiny. This argument is supported by analyzing the way the Court has used history and tradition in reviewing restrictions on the Second Amendment and the push for it to be used under the First Amendment. I argue that Justice Thomas’s rigid application of history and tradition is essentially an ends-justifying-the-means analysis that is no different than the so called “judicial policymaking” of the Warren Court. My solution to this problem is to apply a more flexible history and tradition standard that Justice Barrett has written about in the Court’s cases. Her approach places an emphasis on original meaning but in a way that is less confusing to lower courts and more faithful to the Constitution and the history of our Nation.
Recommended Citation
Gage A. Johnson,
The Fallacies of Originalism: Why Treating History and Tradition Alone as Dispositive Is Not Superior to the Tiers of Scrutiny,
74 Clev. St. L. Rev.
439
(2026)
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol74/iss2/7
Included in
Constitutional Law Commons, Courts Commons, First Amendment Commons, Second Amendment Commons