The maker of any good con is that the thing offered sounds too good to be true. The same goes for judicial theories. Originalism sounds fair and reasonable until a closer look shows it is just another way for the United States Supreme Court to take rights away from Americans.
The Supreme Court’s Archaeology of Authority (The Bulwark)
The idea that constitutional questions can—and should be—answered via historical analysis is simple enough (and echoes the conservative movement’s longstanding embrace of originalism). According to this view, judges should not impose their own values on the Constitution or decide cases according to their own moral or political commitments. They should instead look backward: asking whether a right or interpretation of a law is deeply rooted in the nation’s historical practices, language, and traditions.
History, in other words, promises to do what judicial philosophy long has not: remove judgment from judging.
The term just finished reminds us once again how central appeals to “history and tradition” have become to the Roberts Court’s constitutional project. Rather than promoting judicial restraint, however, key cases reveal how the “history and tradition test” has been weaponized to enable one of the most radical revisions to this nation’s constitutional order since the New Deal. It has been used not only to overturn previous decisions and precedent, but also to fundamentally shift the way the Court engages in judicial review.
Take the Court’s Second Amendment decisions as an example. On June 25, 2026, the Court issued its opinion in Wolford v. Lopez, striking down Hawaii’s restrictions on carrying firearms on private property that is open to the public.
Typically, when considering the validity of the Hawaii law, the Court would ask a familiar set of questions. For starters, does the state have a rational basis for regulating the issue in question (the basic question in the rational basis scrutiny test applied to all law)? Taking things a step forward, the Court often then asks whether there is a fundamental right at issue. And, if so, whether the law in question served a compelling government interest (national security, for example) and whether the law was narrowly tailored in service of that interest. This framework of tests does not eliminate judicial judgment, but it does make that judgment explicit. Courts weigh interests, assess evidence, and openly confront competing constitutional values.
In Wolford, however, the Court opted to adopt its new preferred methodology. Under the historical methodology announced in the 2022 decision New York State Rifle & Pistol Association v. Bruen, Hawaii’s law stood or fell on an entirely different basis: whether the state could identify sufficiently analogous restrictions from the nation’s historical tradition of firearm regulation.
To put that in plain language: The question was not whether the law served a compelling governmental (or public) interest. It was whether a sufficiently similar law existed at some point during the nation’s founding.
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