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Abbe Gluck abbe.gluck at yale.edu
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Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
It is not often that the Supreme Court ratifies an entirely new form of judicial argument. But that may be what happened this past term. Historical arguments about the social and political origins of legislation used to be, except in rare cases, treated as irrelevant to their constitutional validity. Now such histories—which we might call “genealogies”—may be relevant to constitutional analysis as a matter of law. (Put differently, what could have been before plausibly characterized as an anti-modality of constitutional argument may now be a legitimate modality.)
The change came about in two decisions from this past term. First, in Ramos v. LA, the Court declared unconstitutional statutes in Louisiana and Oregon that had authorized criminal convictions based on non-unanimous jury verdicts. Writing for the Court, Justice Gorsuch began his opinion by looking to the history of the non-unanimity requirements in both states. That history revealed that the initial adoption of both statutes was the product of white-supremacist ideology.
In dissent, Justice Alito regretted the Court’s resort to “ad hominem” rhetoric, which he defined as an attack on “the character or motives of the argument’s proponents.” He acknowledged that the facts about the origins of the statutes the Court had revealed were, if true, “deplorable,” but he insisted that they were irrelevant to the constitutional question the Court faced.
But two months later, Justice Alito made exactly the same kind of argument. In Espinoza v. MT Dept. of Revenue, the Court considered the application of the Montana Constitution’s “no-aid provision” to a Montana tuition-assistance program for parents who sought to send their children to private schools. Implementation of the program would result in scholarships being used in religiously affiliated schools, but the no-aid provision prohibited any aid to “sectarian schools.” For that reason, the Montana Supreme Court had concluded that the provision rendered the program invalid. But the US Supreme Court held that enforcing the no-aid provision in this way violated the free exercise clause.
In his opinion for the Court, Justice Roberts noted that the history of the no-aid provision had a “checkered tradition” and that the failed Blaine Amendment of the 1870s, on which it had been modeled, had been the product of anti-Catholic bigotry. (I should say “allegedly” modeled—the facts have been disputed). Justice Alito then devoted his entire concurrence to elaborating on this point. He explained in some detail the way in which the push for the Blaine Amendment and similar statutes was motivated by “virulent prejudice against immigrants, particularly Catholic immigrants.”
Justice Alito was aware of the apparent contradiction with his dissent in Ramos. But he easily explained his volte face on the relevance of such histories: “I lost, and Ramos is now precedent. If the original motivation for the laws mattered there, it certainly matters here.”
But why do the original motivations matter? Neither opinion offers much explanation on that front, and the answer is far from obvious. One possibility is that the presence of religious or racial animus as a motivating reason is itself sufficient to render an official action illegitimate and unconstitutional. But in both Ramos and Espinoza, the relevant legal provisions had been re-adopted many years later after the historical facts discussed, and (presumably in part for that reason) in neither case were the provisions challenged on an animus theory.
Another problem is that genealogical arguments may be fallacious. Justice Alito himself called them “ad hominem” rhetoric. And when Justice Thomas last year offered a similar kind of genealogy, in which he sought to tie today’s pro-choice movement to the early 20th Century eugenics movement, historians and legal scholars attacked him for engaging in “guilt by association.” Such arguments commit the “genetic fallacy.”
Nevertheless, as I have repeatedlyargued, such genealogical arguments are, at least sometimes, relevant to legal analysis. The reason is that law is an authoritative discipline, and when you reason by authority, the character and motivations of the person or institution promulgating a directive is relevant to one’s decision about how to treat that authority’s directives.
Some simple examples demonstrate the point. When your doctor prescribes you an expensive experimental medicine, you want to know whether she is being paid by the drug manufacturer. You want to know for the same reason that lawyers seek to “impeach” both lay and expert witnesses by revealing their biases and motives to deceive. When your reasoning depends on the assumption that a person is telling the truth, you want to know if there are reasons why they may not be doing so.
Something analogous is true in legal reasoning. Concepts like “bias” and “prejudice” are, after all, epistemic concepts, in addition to moral ones. They distort vision and judgment. What the Justices’ are essentially alleging in their historical genealogies is that the authors of the legal provisions under scrutiny do not deserve the presumption of constitutional fidelity that typically forms the Court’s starting point. The reason is that the histories suggest that the lawmakers’ judgment was distorted or warped—perhaps in ways they themselves did not even realize since the source of that distortion often preceded by decades the actual promulgation of the laws.
In some ways, it’s ironic that recently it has been the conservatives on the Court who have deployed genealogical arguments. Such arguments tend to undermine current arrangements, and so have more often been associated with progressive and leftist critiques of the status quo. See, e.g., the New York Times’s 1619 Project. Or the entire subfield of Critical Legal history.
At the same time, however, as I’ve argued on this blog, such arguments fit naturally with constitutional originalism—at least one that leaves room for constitutional development or “construction” over time. One must look to the whole history of the United States to see whether and when fidelity to constitutional principles has lapsed between the founding and today.
In short, genealogy is just the flipside of tradition.
Of course, one might object that such arguments are indeterminate. There are no “right answers” when it comes to what the best historical explanation is of some law, doctrine, or practice.
Maybe not. But do moral arguments sounding in abstract principles like “liberty” and “equality” yield more determinate results when applied to the kinds of cases that get to the Supreme Court? Do they in Espinoza?
In any case, such historical arguments may get closer to what these cases are really about. One need look no further than the recent debates over historical monuments to see that the culture wars are about identity and that identity is wrapped up with history. If so, then perhaps that’s another point in genealogy’s favor.
Charles Barzun is the Horace W. Goldsmith Research Professor of Law at the University of Virginia. You can reach him by e-mail at cbarzun at law.virginia.edu