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“Text, History, and Tradition” as a Three-Part Test

By on March 11, 2020 Categories: , ,

Is “text, history, and tradition” (THT) an example of what linguists would call a “hendriatris,” referring to a single jurisprudential/decisional approach, or do each of the three words have semantic significance?

Sam Bray has an excellent article about hendiadys in the Constitution; a hendiadys is a word couplet with unitary semantic meaning, while a hendiatris is a triplet.  Bray’s constitutional examples are “necessary and proper” and “cruel and unusual.” English legal writing is full of these, such as “cease and desist,” and “metes and bounds.”

Peter M. Tiersma, in his classic text Legal Language, explained that many of the verbal couplets in legal English are inherited from earlier eras – vestiges either of pre-Norman Old English alliteration and consonants (think pairs of words starting with the same letter, like “aid and abet” or “to have and to hold”) that aided with memorization in a pre-literate society, or are vestiges of the two-language problem after the Norman Conquest, when (for four centuries) official documents used legal (Norman) French, but the people governed by the contracts or laws spoke the Germanic-based Old or Middle English.  Many of our legal couplets, therefore, represent the Norman French word and the Anglo-Saxon word for the same thing, such as “devise and bequeath,” “will and testament,” “free and clear,” “acknowledge and confess,” or “good and just consideration.”

Outside of the legal context, English has other binomials – e.g., “short and sweet,” “down and out,” “peace and quiet,” and “safe and sound,” “loud and clear,” and “wear and tear” – that often occur together, in an irreversibly-fixed order. Binomials are not necessarily hendiadys, since the linguistic convention of joining the words a certain way does not necessarily remove the distinct meaning of each.

It seems like the advocates of the THT approach in Second Amendment cases are using it as a hendriatris, and as a rival approach to tiers of scrutiny.  But even were the Supreme Court to adopt THT as the mandatory analysis rubric for Second Amendment cases (rejecting tiers of scrutiny), the lower courts, over time, could start treating this as a three-part test, assuming formalism is the tendency of institutional path dependence.

Jake Charles discussed here that “text, history, and tradition” (THT) is an approach that gun rights advocates have urged courts to adopt instead of the two-part framework of intermediate scrutiny that is now the consensus view among the federal circuit courts.  Jake also observed that Paul Clement advocated THT during oral arguments last December in NYSRPA, as did Jeff Wall (arguing for the government), and the amicus briefs by the NRA and other gun rights groups propounded THT as a centerpiece of their argument.

THT is commonly attributed to Justice Kavanaugh, though he did not invent the phrase.  While still a judge on the DC Circuit, Kavanaugh argued in a lengthy dissent in Heller II that courts should use “text, history, and tradition” as the analytical rule for Second Amendment cases. He acknowledged, “To be sure, the Court never said something as succinct as ‘Courts should not apply strict or intermediate scrutiny but should instead look to text, history, and tradition to define the scope of the right and assess gun bans and regulations,’”  but explained that it was the “clear message” implied by the Supreme Court in Heller I and McDonald. Kavanaugh explained that the phrases like “historical tradition,” “historical justifications,” and “historical understanding” in the Supreme Court’s Heller decision referred to what the original adopters of the Second Amendment subjectively understood it to mean, especially regarding types of weapons protected.

For the “tradition” prong of THT, Kavanaugh offers a parenthetical definition: “that is, post-ratification history,” followed by a quote from Heller’s language that this means an “examination of a variety of legal and other sources to determine the public understanding of a legal text in the period after its enactment or ratification.”

He never defines “text,” that is, whether “text” is the final adopted verbiage of the Second Amendment itself, or if it includes wording from earlier drafts (like the “religiously scrupulous” clause that dropped out, discussed at length by both the majority and dissent in Heller), or the text of the law being challenged. Kavanaugh’s dissent uses the triplet “text, history, and tradition” twenty times and the couplet “history and tradition” (minus “text”) fourteen times, seemingly interchangeably, and raising the question of whether he is using “text, history, and tradition” to refer to a two-part analytical framework of “history” and “tradition,” as he defines these two terms and uses the couplet (not as a hendiadys) numerous times. Second Amendment scholar Nelson Lund has recently criticized Kavanaugh’s reading of Heller, and refers to the THT alternative as “an unusual jurisprudential approach” that invites “covert judicial policymaking” (i.e., cloaking the judge’s policy preferences in a shroud of speculative or dubious historical arguments.

Where did then-Judge Kavanaugh get the phrase “text, history, and tradition” that he used as a constant refrain in his dissent?  As far as I can tell, the THT phrase as a triplet first appeared in federal court opinions in a concurrence by Justice Thomas in the 1996 case Lewis v. Casey (“In lieu of constitutional text, history, or tradition, Bounds turned primarily to precedent in recognizing the right to state assistance in the researching and filing of prisoner claims.”).  I believe Judge Kavanaugh borrowed the phrase from Justice Thomas.

But Justice Thomas may have been borrowing this trinomial from earlier legal sources.  The phrase entered our legal language in a pair of judicial opinions a decade earlier in a pair of 1986 superior court opinions from Connecticut (same judge)Doe v. Maher (see footnote 29) (“The plaintiffs raise only state constitutional grounds to invalidate the regulation. In making these determinations, the court must interpret our state constitution independently of the United States constitution when required by its text, history, tradition and intent.”); and Williams v. Coppola, (see footnote 1: “In making a determination under the state constitution, the court must interpret that constitution independent of the United States constitution when required to do so by its text, history, tradition and intent.”).  Both opinions are by Judge Robert I. Berdon from the same term.

Also predating Justice Thomas’ use of the phrase is its first appearance in law reviews in a 1988  article by Daniel Farber, Legal Pragmatism and the Constitution, (“For a pragmatist the analysis must start—but not finish—with an examination of our constitutional text, history, and traditions.”).  This was followed in a 1991 article by Mary Ann Glendon and Raul F. Yanes, Structural Free Exercise (“With little or no support from text, history, or tradition, the members of the Everson Court braided into the Religion Clause the notions that the establishment provision was meant to create a ‘wall of separation’ between religion and the government, that it was to be broadly construed to prohibit all government aid to religion, and that government was required to be strictly neutral as between religion and nonreligion.”); then followed by Paul Brest in Interpretation and Interest (1992) (“Second, our texts, histories, and traditions are seldom univocal, but often include competing and conflicting values.”).

After that, the three-part phrase showed up in some New Jersey judicial opinions: State v. Tucker (N.J. 1994) (“. . .[We] support our conclusion that greater protection is appropriate on the basis of constitutional text, legislative history, state traditions, or other factors.”); and State v. A.G.D. (N.J. 2003) (quoting an excerpt from Tucker decision).

The New Jersey opinions, which still predate the usage in Second Amendment contexts, modify each word, making it seem that these are distinct questions: text (the relevant constitution’s wording itself), history (meaning either legislative history of the statute, or of the constitutional clause), and traditions (meaning that jurisdiction’s local traditions, not necessarily the entire Anglo-American common law).  Daniel Farber used this phrase to refer to three distinct questions as well.

In any case, it seems like the phrase was in use before anyone started applying it to Second Amendment questions.  And in pre-Heller usage, these are three distinct things, and if applied in Second Amendment cases, this should operate as a three-prong test (note these are three prongs of a test, not three sequential steps).  If so, like many multi-prong tests, the answers could weigh against or offset each other: the history (say, the Convention debates about the Second Amendment) may suggest different answers than the post-ratification “tradition” (laws, regulations, and court decisions).  Courts will have to decide which prong deserves the most weight.

Joseph Blocher and Eric Ruben have written that the Supreme Court could, in one scenario, make the drastic move of using NYSRPA to supplant the consensus view (the two-part test) with the THT view; they argue convincingly that this would be a mistake – disrupting thousands of cases over a decade of precedent, and dropping an eminently workable judicial test with one that is largely untested and fraught with indeterminacy.  As Joseph and Eric explain, “The 27 words of the amendment are silent on many questions, and history and tradition don’t speak with one voice—there were and are significant regional differences in approaches to gun regulation, as well as divisions between urban and rural areas.”  They are correct that there are multiple voices speaking within the history, as well as within the post-enactment tradition of laws and court decisions.

Moreover, as Darrell Miller explained here, 1) the intermediate-scrutiny two-part framework “does not reject text, history, and tradition; it incorporates it at step one (and perhaps at step two as well),” and 2) analogies will run out or wear thin between Founding-Era weapons/regulations and modern weapons/regulations. Eric Ruben joined Joseph and Darrell in a thoughtful amicus brief in the NYSRPA case, setting forth a compelling argument for the Court to maintain the two-part balancing test that has become the consensus view, and to reject the murky THT alternative advocated by the petitioners and other amici in the case.

I agree with the position taken by Joseph, Darrell, and Eric in their amicus brief: the two-tiered approach adopted by circuit courts is working well, and it has the appeal of now being well-established and widely accepted.  Moreover, I worry that the judges and advocates using the phrase “text, history, and tradition” in the Second Amendment context are using it in a vague, undefined way, mixing originalist methodological commitments with a sense of cultural nostalgia.  From a legal pragmatist view, I worry that the “text, history, and tradition” trope is merely a firewall against any new or innovative firearm regulations, such as the innovative but promising laws providing for extreme risk protection orders, microstamping requirements, or one-per-month purchase limits.