The Supreme Court is destroying originalism in order to save it. In Trump v. Cook, Chief Justice John Roberts, a supposed originalist, bypassed the theory in favor of a five-year-old doctrine known as “history and tradition.” That allowed the court to preserve the independence of the Federal Reserve — even as, in a separate decision issued the same day, it invoked originalist principles to end the independence of all other federal agencies.
The whole point of originalism, as espoused by the late Justice Antonin Scalia and (in theory) the court’s current conservatives, is that the meaning of the Constitution depends on what the public thought its words meant when it was ratified. The history and tradition doctrine, in contrast, allows the justices to look at real-world practices adopted in the 240 years since. They can ascribe some abstract principle to explain and justify those practices, then enshrine the principle as the meaning of the Constitution.
The reason the history and tradition test destroys originalism is that it ignores the originalist claim that the Constitution is not a living document but is, in the words of Scalia, “dead, dead, dead.” The reason the history and tradition method saves originalism is that it enables the conservative justices to avoid the outlandish results that would follow from their originalist philosophy if it were allowed to take effect in the real world.
The Fed case is the most prominent example so far of how history and tradition destroy originalism to save it. Imagine that Justice Clarence Thomas’ originalist dissent in the Fed case had prevailed. The court would have applied the theory of the unitary executive, which the conservatives claim to be a product of originalism. The Fed would then have been treated exactly like the other independent agencies and suffered an immediate death by judicial strangulation.
The markets would have noticed that monetary policy was now in the hands of President Donald Trump and his successors, of whatever party or economic outlook. It’s hard to say precisely what the effects would have been, but conventional wisdom suggests there would have been both short-term market effects and a long-term undermining of confidence in the U.S. economy.
Then maybe the whole world — not just constitutional lawyers like me — would conclude that originalism is a terrible way to organize the affairs of a modern economy. It’s one thing to adhere to the abstract theory that a bunch of white men in the late-18th-century fixed the meaning of the Constitution for all time. It’s quite another to actually go around trying to apply that theory by reversing centuries of economic knowledge and acquired experience.
To put it bluntly, originalism itself might not have survived the disaster of abolishing Fed independence. History and tradition allowed Roberts to avoid it.
His reasoning, roughly, was that the First and Second Banks of the United States, which existed in the late 18th and early 19th centuries and were created by people of the framers’ generation (albeit after ratification), stood for the principle of the executive not making monetary policy. That abstract principle, he claimed, became a tradition that was renewed in the early 20th century by the creation of the Fed.
Never mind that the tradition was missing almost a century of our history. Never mind that the modern Fed operates very differently from its pre-modern predecessors. Once Roberts claimed the tradition justified the principle, he could reach the conclusion that, going forward, the Fed’s independence must be sacrosanct.
To get there, Roberts invoked what has become the slogan (if not the rallying cry) of the history and tradition approach: The Constitution must not be “trapped in amber.” Roberts knows that phrase well, because he wrote it. It comes from U.S. v. Rahimi, a gun-control case in which he led the conservatives in bypassing the consequences of Thomas’ sweeping Second Amendment opinion in a 2022 case, New York State Rifle and Pistol Association v. Bruen. The Bruen case made it sound like the only allowable gun regulations were those that had existed in the 18th century. The Rahimi decision saved Bruen’s originalism by reinterpreting it as a history and tradition principle that could be used to uphold a ban on domestic abusers owning guns.
You can think of this distinctive use of history and tradition in two very different ways. If (like me) you have always considered originalism a crazy way to apply the Constitution to the circumstances of the modern world, then history and tradition is kind of great. It saves America from the idiocy of applying originalism across the board, while also undermining originalism’s claimed intellectual credibility.
At the same time, if (also like me) you believe that justices should be judged by the consistency of their opinions with their constitutional philosophy, it’s hard not to be a little horrified by the hypocrisy of presenting history and tradition as if it were no different from originalism.
To be clear, I’m happy if history and tradition destroy originalism. In the long run, it heralds the death of that theory — and good riddance.
The deeper truth is that originalism is a dissenters’ philosophy, useful for berating the court’s majority when it creates new constitutional rights out of whole cloth or otherwise makes things up as it goes along. But originalism is a terrible theory for a majority, because you can’t run the country as a cosplay convention or a roadshow of Lin-Manuel Miranda’s “Hamilton.”
So two cheers for history and tradition. It saved the Fed. It may yet save the rest of us from originalism. But let’s not pretend that it is originalism.
