The Territories Under Text, History, and Tradition

Authors

Andrew Willinger, Duke Law SchoolFollow

Document Type

Article

Publication Date

2023

Abstract

In two of its major decisions in the 2021–2022 Term, New York State Rifle & Pistol Ass’n v. Bruen and Dobbs v. Jackson Women’s Health Organization, the Court continued solidifying its originalist method of constitutional interpretation by looking increasingly to historical regulatory practice to construe how the Constitution protects individual rights. The Court is focused not only on the original public meaning of constitutional provisions, but also on historical practice. Historical laws and practices are now key to understanding how those who lived at the relevant time thought a constitutional provision might be applied and what regulatory approaches were consistent with that provision. Bruen and Dobbs both considered laws passed by governments in the Western territories prior to statehood in the nineteenth century, but with polar opposite results. One day the Court suggested that territorial laws and practices were exceptional improvisations irrelevant to the search for a national tradition; the very next day, the Court implied that territorial laws can be valuable tools for constitutional interpretation. This Article searches for a more satisfying and consistent theory of how to utilize territorial history in constitutional cases.

Part I critically analyzes the decision in Bruen and the Court’s determination that territorial public-carry bans could not serve as analogues to support New York’s modern gun-licensing law. Part II explains the history of continental territories, examines Dobbs and other decisions invoking territorial laws and practices, and identifies relevant principles from legal scholarship regarding the Court’s reliance on non-federal sources to interpret provisions of the U.S. Constitution. Part III argues that the Supreme Court’s use of territorial history in Bruen was inconsistent with its past practice, that territorial history is especially likely to reflect federal constitutional meaning because the territories were subject to the federal Bill of Rights long before those rights were incorporated against state governments, and that a text, history, and tradition methodology should accord territorial laws and practices a meaningful role.

Citation

Andrew Willinger, The Territories Under Text, History, and Tradition, 101 Washington University Law Review 1-68 (2023)