The Trouble with ‘Text, History, and Tradition’

Don't be evil.

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Hello, AO listeners! This episode is a little bit different. Your regular hosts, Sarah and David, are unavailable—Sarah on parental leave, David on the road—so I (David Lat) have conscripted my husband, lawyer and legal commentator Zachary Baron Shemtob, to serve as guest of a guest. Zach shares his (strong) opinions on two hot topics, the Trump gag order and AO listeners’ favorite subject, text/history/tradition. We also cover a noteworthy Sixth Circuit case about the retroactivity of the First Step Act and the big Google antitrust trial. We hope you enjoy this very special episode. Sarah and David will be back next week.

Show notes:

–Kevin and David French on Dispatch Live: Ask Me Anything

–United States v. Carpenter (6th Cir. on retroactivity of First Step Act):

–In Its First Monopoly Trial of Modern Internet Era, U.S. Sets Sights on Google:

–The Google Trial Is Going to Rewrite Our Future:

–David and Zach on Original Jurisdiction:

–Cruel and Unusual: A Podcast on Punishment

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Comments (81)
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  1. Avatar photo
    OK Steele

    This was a good and interesting conversation, was a good idea.

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  2. Jacqueline Cromwell

    Long time listener, first-time commenter (Couldn't help myself;). Ok, let me say upfront that I am not a lawyer, just like it, and was raised around it.

    If we have to miss David French and Sarah, I am grateful we have been able to hear David Latt & Zach!

    I have a unique thought on the domestic violence/ gun issue. I first agree that the civil nature of the restraining order is a big problem for me in Rahimi case. That said, maybe the thing that isn't being looked at properly is domestic violence. What we refer to as domestic violence is really an assault and battery with a special motivational circumstance. Back in the founding, would you be allowed to retain your gun possession rights if you were regularly, or accused of, beating your neighbor? Your boss? Your land-owning friend? Because what has really changed is the status of family members, not the status of domestic violence. We don't need to look at it as a society that now protects women as much as society has changed the definition/position of women.

    Am I crazy? If you think I am, be gentle;).

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    1. ZShemtob

      I don't think this is crazy at all! I think the problem for originalists/THT'ers is that it was clear the historical tradition/practice was that those who committed domestic violence were not barred from owning firearms, since the commission of such (tragically) was not considered a violent felony. As you do here, the defender of THT (who understandably doesn't want to concede the larger point) responds that similar instances of violence were felonies, and therefore domestic violence should fit into that bucket. But the problem for THT'ers, as I see it, is that this (1) again, ignores the actual historical practice at the time, which was crystal clear re: domestic violence, unfortunately, and (2) asks us to say, well, if those persons at the time really thought about it, they would have recognized, as do we, that domestic violence also fits into the violent felony category. But, as for (2), since we know it didn't fit into that category at the time, one has to abandon the actual historical tradition/practice and base their analysis on the principle of the thing (purposivism)/an evolving standards of violent felons test, which is anathema to originalism (see, for example, Scalia and Thomas on the 8th A, substantive due process, etc.).

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  3. Aaron H Frank

    What a great pod. Thanks to David for filling in for Sarah and for Zach for filling in for David! I will greatly miss David Latt's participation in the comment section.

    How is a judge locking someone up for contempt of court legal? This is a court-made rule with the effect of a law, then a judge accuses and convicts, and then the court locks the person up. Judges need some effective way to penalize people but doesn't citing someone for contempt combine all three branches of government into one.

    Lawyers in general and the hosts of this show in particular often talk about the ability to appeal a verdict as if there is no cost to it when there often is. How often does cost become a barrier to appeal, especially when you are arguing against an opponent that literally prints money and has virtually unlimited resources.

    Finally it was interesting to hear the Google anti-trust comparisons to Microsoft. I worked for Microsoft in the 90s during the anti-trust trial. There are several differences between now and then. I am an Android user and while Microsoft's browser was embedded as part of Windows it was still ultimately removable. Microsoft and its OEMs had to make changes and do significant testing to make it happen that none of us wanted to do because of the added costs but it could be done. And the PC press could come up with ways to take out IE and replace it with Netscape before Microsoft figured out how.

    On my phone there is a whole bunch of Google code that if firmware. Sure I can add Duck Duck go or Edge or Firefox but I cannot remove Chrome. I cannot remove Youtube or Youtube TV. I cannot remove NowPlaying and replace it with Shazam. I wish I could yank these pieces of software of my phone.

    One last huge difference is the massive amount of data your Android phone collects about you even if your turn in off. Windows never even came close.

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    1. Davidbenjaminlat

      Thanks for the kind words and interesting perspective on the Google versus Microsoft cases! That's interesting about the inability to remove Google-owned apps like Chrome and YouTube from your Android phone. If Google is held liable, I could see it being ordered to do something about that (assuming there isn't a breakup of the company into various parts).

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  4. Max Marshall

    David, I’m not a lawyer, but just as a matter of a priori logic, why couldn’t an originalist make the following argument regarding domestic violence and the 2nd amendment:
    Historically, there were laws barring violent criminals from possessing weapons. While it’s true that domestic abusers may not have always been considered “violent criminals,” that was ultimately because in the past, women were (wrongly) considered to be the property of their husbands, at least in some sense. Today, we reject as logically and morally flawed the premise that a person can be property in any sense, and therefore—even without specific legislation outlawing domestic violence—the assault of a spouse would inevitably fall under existing laws criminalizing assault. So, the order of operations should be:
    1) Is there a history of laws prohibiting violent criminals from owning weapons?
    2) If so, is the plaintiff a violent criminal?

    Setting aside the Rahimi case and all the issues surrounding due process, etc., it seems that someone convicted of felony domestic violence would satisfy both parts of the test. If a convicted domestic abuser doesn’t meet the criteria because (ultimately) domestic partners were considered property, would a Klansman convicted for assaulting a black person be exempted because black people had few if any rights when the 2nd Amendment was ratified?

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    1. ZShemtob

      This is a sound interpretive framework. But, again, it’s not originalism; it’s purposivism.

      The crux of originalism is what a person at the time of a law’s enactment would have understood that law to mean. As you acknowledge, we know that domestic violence was not considered a violent offense at the time of the 2A’s enactment (partly, as you make clear, because women were wrongly considered the property of their husbands), and such actions thus would not have prevented such persons from owning firearms. I think this was horrible, but it’s a historical fact.

      And it’s simply not originalism to counter that, well, the people at the time really meant otherwise because convicted violent criminals were prevented from owning weapons. You’re then relying, as Justices Kennedy and Ronald Dworkin did, on the principle of the thing, not the actual understanding at the time. An originalist does not look at what is “logically and morally flawed” today to interpret language, they simply look at past understanding for fear of doing just that—imposing today’s contemporary/ever-shifting values on fixed historical meanings and practices.

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      1. Max Marshall

        I disagree with your view of originalism. It seems a bit narrow, perhaps a bit too rigid. I think there is more room for nuance. You wrote, “The crux of originalism is what a person at the time of a law’s enactment would have understood that law to mean.”

        I won’t dispute that, but as it’s been said repeatedly on this podcast, there are many ways to apply that basic principle. For instance, I could argue that in my example, the original meaning of the second amendment would have been understood to allow for exceptions for violent felons. To say that since women were quasi-property back then, domestic abusers weren’t violent felons and can’t have their 2A rights limited as such would be like saying that since black people weren’t considered citizens at the time, none of the rights granted by the bill of rights extend to black people apart from the 14th amendment. And while the 14th amendment may have been necessary for practical purposes at the time it was ratified, I don’t know of any prominent originalists who would make the claim that black Americans would lose access to the bill of rights if the 14th amendment were to magically disappear later today. Or for another example, wouldn’t the very literal version of originalism you describe mean that IP laws shouldn’t apply to artwork published online simply because the laws may have been enacted prior to the advent of the internet? I don’t think you have to accept these absurdities in order to practice originalism.

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        1. ZShemtob

          I think your response is the best defense of originalism/THT one can make in this context, but I don't think it works. It calls for an evolving standards of violent felons analysis ("the people" covered by the text of the 2A), rather than basing itself on the actual historical traditions/practices at the time. It's good purposivism (as in the case of the Court's "evolving standards" 8th Amendment test), but I don't see how it's originalism.

          As for your examples, (1) your take on the 14th amendment renders it superfluous both textually and historically, and (2) it only makes sense to invoke historical analogies when a given historical tradition/practice didn't exist at the time of a provision's enactment (such as would be the case with IP law published online, thermal imaging, etc.). But, in this case, we have crystal clear evidence of a historical practice/tradition.

          Again, if you use THT to abstract away from the actual historical practice until we get to the larger principle of the thing (that is, what we now understand a violent felony to be/who "the people" are to be covered by the 2A, regardless of what persons at the time thought), I don't see how that's not a form of purpovism (a la Kennedy, Dworkin), to which Scalia and Thomas (despite certain separate methodological differences) would be opposed. (And apologies that I'm repeating myself from below, but this to me is the heart of the matter so I just wanted to reemphasize that point.)

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          1. Max Marshall

            Had to dig to find this thread, but I just had to gloat that Elizabeth Prelogar essentially made a brilliant and much more refined version of the argument I made here, essentially that you need to go up one level of generality to the principle level (the principle being, dangerous people could be disqualified from 2A protections), rather than saying you need a historical doppelgänger for any new law to past THT muster.

            But also, your argument seemed to be similar to the one driving Justice Jackson’s line of questioning. Ie, her suggesting that black peoples’ lack of rights at the founding shows why THT is unworkable.

            P.s. I really enjoyed this discussion, clearly there is disagreement but it’s respectful (my gloating aside). It’s comments-sections like these that remind me why I’m a Dispatch Member.

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        2. Greg C

          Yes, it probably depends on which school one subscribes to, Scalia or Thomas.

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    2. Nordic_man

      Well that's the rub right? There are an infinite number of ways one can look at that tradition and history. You can choose to prioritize the violent offenders were disarmed part of that history, or the people who committed [list of crimes] were disarmed. Both are equally valid. As a liberal I am somewhat more ok with outcome oriented jurisprudence, but the sheer hippocracy coming from the "judges don't make law they just call balls and strikes" crowd here is quite noticeable.

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  5. Rob

    This episode is great because it solidifies that for the past 4 weeks David Lat has been the host of Advisory Opinions and French had just been the frequent guest.

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  6. NotTheEditor

    Thank you, David (Lat) for this interesting episode, and for participating with David (French) for the last little bit; I have really enjoyed these episodes. Likewise thanks for inviting Zach on for another good conversation.

    I am no fan of the THT test, for the reasons David (French) articulated. But in particular here I have to admit that I was surprised to hear a defense of it of a sort without any mention of an obvious example of where I think THT would have caused a very different outcome: gay marriage. If THT becomes a more widely used new standard by SCOTUS and other courts, it seems to me that decisions like the one that legalized gay marriage would be significantly less likely. While there is no Constitutional text about it, an Alito-and-Thomas infused Roman Catholicism-based "history and tradition" view (perhaps with Barrett or Kavanaugh, too) would resist these kinds of civil liberties. Even the tangential debates around Dobbs about whether this line of judicial "reasoning" could affect the Griswold decision on contraception demonstrates the potential impact. And while the history or tradition under consideration isn't /necessarily/ rooted in that specific faith, it seems evident to me that it's sources that support those views that, say, Alito reaches for in these situations.

    I won't belabor the point, but I was surprised that this obvious (to me) example didn't come up, given that y'all are married. A right I support, by the way, in case that isn't clear.

    Thanks!

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    1. Davidbenjaminlat

      This is probably heresy (and I'd never say something like this on Twitter—er, X), but there's a non-frivolous argument that Obergefell wasn't rightly decided as a matter of constitutional law. I pride myself on being someone who doesn't let his policy preferences dictate his views on con-law issues. So even though I obviously support marriage equality as a policy matter, I wouldn't let that preference control my view of whether the federal constitution requires marriage equality, which is an entirely separate question.

      A few things I'll add:

      1. Personally speaking, and regardless of my views on the con-law issue, let's just say that I wasn't upset about Obergefell. In fact, we got married a few months after Obergefell, and one of our readings was from Justice Kennedy's opinion.

      2. I also believe in stare decisis, so I don't think Obergefell should be revisited, regardless of whether it was rightly decided in the first instance.

      3. I think there's a strong stare-decisis argument that if you accept some of the cases in that line of authority (like Windsor), then Obergefell flowed from them. Justice Scalia warned about this in some of his dissents in those earlier cases, if I recall correctly. So if you accept Windsor (or Lawrence or Romer) under stare-decisis grounds, that logic arguably gives you Obergefell.

      4. Saying that there's no federal constitutional right to marriage equality doesn't mean it can't happen; it just means it has to happen on a state-by-state basis. We were married in Massachusetts, which had marriage equality thanks to a state constitutional decision, and at the time we lived in New York, which had marriage equality thanks to legislative action. So even without Obergefell, I'd say that a majority of Americans would probably live in jurisdictions with marriage equality. (I realize this is easy for me to say as someone who lives in the blue state of New Jersey, where my marriage would be safe—but this is what federalism and the right to travel are all about.)

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      1. Aaron H Frank

        David,

        Thanks. How should the justices decide when to use stare decisis and when to ignore it. According to stare decisis and even THT Brown was wrongly decided but is there anyone today arguing that "separate but equal" should be legal?

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      2. NotTheEditor

        David, thank you for such an honest and thoughtful reply! And I understand and appreciate your perspective here, along with the distinction between policy outcomes and the best decision based on interpretation of the Constitution. Safe to say, I think, that I have similar feelings with respect to a lot of gun regulation, and there are no doubt other situations too where the state-by-state basis is the right approach to resolving this kind of conundrum. In any case, it’s been a pleasure — and you’ve earned another fan. So thank you again!

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  7. Mike Nelson

    Sorry to hijack the comments, but I wanted to say hello to guest-of-guest Zach. We went to law school and served on the GLJ at the same time. I'm glad to hear that you're doing well!

    I loathe podcasts so I can't comment on the conversation. But I occasionally read the comments and look at the linked articles. I am glad I did.

    P.S. for David, the quality at ATL seems to have deteriorated since you left. It always had a whiff of gossip rag to it. Now it whiffs just as much, but also reminds me of a HS newspaper.

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    1. Davidbenjaminlat

      Thanks for the comment, Mike! I left Above the Law quite some time ago (2019), but feel free to check out my new venture, Original Jurisdiction. It’s occasionally gossipy but not excessively so, more sober (and admittedly less entertaining) than ATL.

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      1. Mike Nelson

        2019 was only 4 years ago. Doesn't seem long, but maybe I'm just old. And I didn't mean to imply that you were responsible for the decline at ATL.

        I've been to your new site, but I'm not a subscriber. I'm not so much interested in law school shenanigans, but enjoy the occasional decision analysis that I can read there. And I've seen your name here and there, so you're definitely building the brand. Congrats!

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  8. MathewA

    I agree that a proper originalist reading would make removing gun rights for domestic violence would probably be unconstitutional UNLESS you get a felony conviction. Then it would be a felony for violence, and it would make perfect sense to remove gun rights.

    That's the problem with the Rahemee (sp?) case, they are trying to remove core civil liberties without a felony conviction.

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  9. ErrantThoughts

    The problem with ‘Text, History, and Tradition’ is that it is judicial Calvinball, you get to make up the rules as you go along and change them at will.

    Judges and Justices can cherry pick the history and traditions they use to contextualize the law and they get to pick the resources, dictionaries, etc. they use to define the meaning of the "text" as it was understood at the time of framing to best translate it into a modern parlance that suits them.

    Sometimes Justices even use grammar rules to a level of rigor that the framers almost certainly didn't use to reach their goals. There has been one case where grammar rules were used, or abused, to rationalize ignoring ~40% of an Amendment's text to make it mean what they wanted it to mean.

    ‘Text, History, and Tradition’ is the equivalent to the creationists rebranding religious creationism as "Intelligent Design" to sneak it in to schools after being rejected by the courts. ‘Text, History, and Tradition’ is often little more than a method to rationalizing a decision you wanted to reach that you otherwise couldn't.

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    1. Nordic_man

      Fundamentally the problem is that the constitution is essentially unconstitutionally vague except for the fact it is the constitution.

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  10. Avatar photo
    Jonmckny

    Such a great episode! Although I feel really under accomplished after hearing Zach’s intro.

    I would love to hear a Sarah, David, David, and Zach episode or maybe since a HOP and Nancy episode.

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