Tradition and Feminism in Constitutional Rights Adjudication

*Associate Professor of Law, University of Virginia School of Law. For comments, thanks to Alice Abrokwa, Payvand Ahdout, Stephanie Barclay, Charles Barzun, Mitchell Berman, Philip Bobbitt, Peter Bozzo, Sam Bray, Anne Coughlin, Marc DeGirolami, Ryan Doerfler, Ben Eidelson, Jim Fleming, Kim Forde-Mazrui, Dov Fox, Michael Francus, Debbie Hellman, Julia Mahoney, Serena Mayeri, Linda McClain, Darrell Miller, Douglas NeJaime, Richard Re, Kim Roosevelt, Larry Sager, Tom Schmidt, Micah Schwartzman, Kate Shaw, Reva Siegel, Larry Solum, Julie Suk, Meng Jia Yang, and audiences at Yale Law School, Harvard Law School, the University of Chicago Law School, Columbia Law School, the University of Virginia School of Law, the University of Pennsylvania Law School, the National Conference of Constitutional Law Scholars, Georgetown University Law Center, the University of Maryland School of Law, and Duke University School of Law. For terrific research assistance, thanks to Shamus Hogan, Chloe Metz, and Hannah Shapiro.Show More

In recent years, “tradition” has been influentially invoked in constitutional rights adjudication and legal scholarship. The Supreme Court, in contexts ranging from abortion to the Second Amendment to freedom of speech, has looked to tradition to illuminate the contours of constitutional rights and the boundaries of permissible government regulation. Some legal theorists have defended “traditionalism” as a way to tether constitutional rulings to the people’s customs instead of judges’ moral views.

From a feminist perspective, the rise of tradition may be cause for concern, if not alarm. Why integrate into constitutional rights adjudication the practices and understandings of eras in which women were subject to severe political, economic, and social subordination? Yet the relationship between feminism and traditionalism depends on the form that traditionalism takes: what it is, how it is justified, and how it responds to moral critique.

This Article unpacks the idea of tradition, and it investigates the interaction between tradition and women’s rights in constitutional law. I argue that a concern for tradition, properly understood, contains resources to guide an approach toward constitutional adjudication that can be conducive to, rather than hostile to, women’s rights. For example, traditionalists often seek to glean insight from concrete experience rather than relying on abstract principles; they should therefore examine a range of experiences, including those of women. And the traditionalist interest in continuity supports acceptance of the last century’s advancements in women’s rights rather than attempts to “roll back the clock.”

Thus, values integral to traditionalism can support positions favorable to women’s rights. I apply this view of tradition to several constitutional questions, including the right to contraception, the permissibility of public single-sex education, pregnancy discrimination, and the scope of the Equal Protection Clause. I also engage in broader reflection about the determinacy of traditionalist analysis and the relationship between traditionalist reasoning and moral evaluation.

Introduction

“Tradition” has become a notable category in constitutional rights adjudication and scholarship. The Supreme Court stated in the abortion case Dobbs that “an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973,”¹ 1.Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2253–54 (2022).Show More and in the Second Amendment case Bruen that to regulate firearms, “the government must demonstrate that the regulation is consistent with this Nation’s historical tradition.”² 2.N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2126 (2022). For other recent Supreme Court invocations of tradition, see, e.g., Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2431 (2022) (Establishment Clause); Vidal v. Elster, 144 S. Ct. 1507, 1518–19 (2024) (speech).Show More Beyond the pages of the U.S. Reports, some legal scholars have defended “traditions”—understood, in one proponent’s words, in terms of “political and cultural practices of substantial duration”³ 3.Marc O. DeGirolami, The Traditions of American Constitutional Law, 95 Notre Dame L. Rev. 1123,1125 (2020).Show More—as valuable sources of constitutional insight.⁴ 4.See, e.g., Marc O. DeGirolami, Traditionalism Rising, 24 J. Contemp. Legal Issues 9, 54–56 (2023); Michael W. McConnell, The Right to Die and the Jurisprudence of Tradition, 1997 Utah L. Rev. 665,681–90; see also Sherif Girgis, Living Traditionalism, 98 N.Y.U. L. Rev. 1477, 1554–55 (2023) (referring to “living traditionalism” as “ineliminable, spreading, and increasingly deliberate,” though also voicing concerns with the methodology).Show More

From a feminist perspective, the rise of tradition may be cause for concern, if not alarm. Why turn to tradition in constitutional rights adjudication, especially in cases implicating women’s rights issues, when many relevant traditions emerged from periods in which women faced severe political, economic, and social subordination? Tradition may seem starkly at odds with regard for women’s equal citizenship stature.

Yet the relationship between tradition and women’s status depends on the nature of tradition—what tradition involves, how tradition affects constitutional rights claims, and how moral critiques of tradition are addressed. This Article interrogates the idea of tradition, and it examines the relationship between tradition and women’s rights in constitutional adjudication.

I argue that a concern for tradition, properly understood, contains resources to guide an approach toward constitutional adjudication that can be conducive to, rather than hostile to, women’s rights. Here are a couple of illustrations. Traditions often embody insights gleaned from concrete experience. Instead of reasoning about topics like contraception and sexual harassment in the abstract, therefore, one should seek to understand the experiences of women whose voices may not be fully captured by dominant narratives. Moreover, traditionalists value continuity rather than avulsive change. This favors acceptance of the last century’s advancements in women’s rights rather than attempts to “roll back the clock.” Accordingly, one should reject readings of the Fourteenth Amendment’s Equal Protection Clause that would, in excluding sex discrimination, destabilize decades of prior interpretations. There are doubtless tensions between feminism and certain forms of traditionalist reasoning. But tradition also has egalitarian potential, which this Article seeks to unlock.

To capture the approach to tradition advocated here, I use the term “dialectical traditionalism.” At a high level, this view underscores the possibility of productive dialogue between past and present, with the prospect of transforming the past without eliminating its instructive power. Traditions can, indeed must, change over time to ensure continuity in different circumstances. But they can change in ways that preserve a link to the past and reflect openness to the insight to be derived from longstanding practices.

How? Dialectical traditionalists, in addition to drawing on a diverse range of traditions and emphasizing legal continuity (as just proposed), can pursue several other avenues. One is to recognize that practices with troubling roots can evolve over time. For instance, single-sex education may not today reflect detrimental assessments of women in the way it did historically, and this militates against a ruling that the practice is unconstitutional. A second avenue is to critique certain strands of tradition in light of other customs or collective values—by contending, say, that sex stereotyping in the workplace runs contrary to American meritocratic ideals. A third is to identify resources within traditional views for advancement of women’s rights. For instance, the traditional association between pregnancy and gender could undermine the Supreme Court’s ruling (in Geduldig v. Aiello)⁵ 5.417 U.S. 484, 494–97 (1974).Show More that sex-based discrimination does not necessarily encompass pregnancy discrimination. A fourth is to reason in a traditionalist fashion even while breaking with the past. For example, the Supreme Court’s Virginia Military Institute (“VMI”) decision, which held that VMI could not exclude women,⁶ 6.United States v. Virginia, 518 U.S. 515, 558 (1996).Show More included approving descriptions of VMI’s traditional “adversative method.”⁷ 7.Id. at 520.Show More Overall, dialectical traditionalism takes longstanding practices seriously while recognizing that their perpetuation in the current day requires reflection and sometimes critique.

The motivations for undertaking this project are twofold. One aim is to encourage the development of traditionalism in a direction conducive to claims involving women’s rights. Tradition is currently a salient form of argument in constitutional rights adjudication, employed by Justices with a range of jurisprudential and ideological views and increasingly discussed in legal scholarship.⁸ 8.See, e.g., City of Austin v. Reagan Nat’l Advert. of Austin, LLC, 142 S. Ct. 1464, 1475 (2022) (Sotomayor, J.) (placing weight on “unbroken tradition” of regulating “on-premises” signs differently from “off-premises” signs in a First Amendment case); Timbs v. Indiana, 586 U.S. 146, 149 (2019) (Ginsburg, J.) (explaining that Eighth Amendment protection against excessive fines has “deep roots in our history and tradition” (alterations omitted) (quoting McDonald v. City of Chicago, 561 U.S. 742, 767 (2010))); Washington v. Glucksberg, 521 U.S. 702, 723 (1997) (Rehnquist, C.J.) (inquiring into whether the asserted right to physician-assisted suicide “has any place in our Nation’s traditions”); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 589 (1980) (Brennan, J., concurring in the judgment) (explaining that the First Amendment right of access to trial proceedings “has special force when drawn from an enduring and vital tradition”); Fisher v. United States, 425 U.S. 391, 431 (1976) (Marshall, J., concurring in the judgment) (critiquing the Court for an approach “contrary to the history and traditions of the privilege against self-incrimination both in this country and in England”). For an overview of recent scholarship on tradition, see infra notes 12–14 and accompanying text.Show More From a feminist perspective, it is worth drawing attention to lines of traditionalist reasoning that can provide support for women’s rights. It may be argued that judicial or scholarly invocations of tradition are unlikely to change. One might, for instance, view current Justices’ references to tradition simply as vehicles for promoting certain ideologies. In that case, however, alternative traditionalist perspectives can serve as the basis for critique of existing applications of traditionalist methodology—demonstrating that those applications are not necessary positions for those concerned about tradition to take.

A second motivation emerges from the conviction that a concern for tradition in constitutional rights adjudication is independently valuable. Decision-makers in numerous social and political settings place weight on prior practice and custom. This is true of judicial decision-making as well, and for good reasons. Among these reasons: The values of reliance and settled expectations, familiar from defenses of stare decisis,⁹ 9.See, e.g., Frederick Schauer, Precedent, 39 Stan. L. Rev. 571,597–98 (1987).Show More are both integral to traditionalism and significant to the judicial task. Traditionalism’s emphasis on concrete experience permits judges to learn from real-world applications of rights rather than opining in the abstract.¹⁰ 10.SeeinfraSection III.A.Show More Adhering to tradition helps to constitute and maintain a national polity.¹¹ 11.Seeinfra Section III.D.Show More Accordingly, appeals to tradition are difficult to reject outright. But women’s rights are also significant, and analysis of tradition in constitutional rights adjudication ought to grapple with the challenge posed by sexist traditions.

This Article thus takes a deep dive into tradition and its interaction with feminism, highlighting several dimensions of this interaction: tradition’s value; the weighty difficulties with traditionalism posed by a concern with women’s rights; and the possibility of marshaling tradition’s resources in a feminist direction. In bringing together these inquiries—especially in light of very recent Supreme Court decisions—the Article breaks new ground. At the same time, it builds on three main strands of scholarship on tradition.

First, some scholars including Marc DeGirolami and Michael McConnell have advocated for traditionalism as a method of constitutional interpretation that, in DeGirolami’s words, “signals the presumptive influence of political and cultural practices of substantial duration for informing constitutional meaning.”¹² 12.DeGirolami, supra note 3, at 1125; McConnell, supra note 4, at 681. For other contributions favorable to tradition, see, e.g., Anthony T. Kronman, Precedent and Tradition, 99 Yale L.J. 1029, 1047–55 (1990); Ernest Young, Rediscovering Conservatism: Burkean Political Theory and Constitutional Interpretation, 72 N.C. L. Rev. 619,697–715 (1994); see also id. at 703 (emphasizing resources for change from within tradition). Much of the literature on traditionalism in the past few years emanates from those concerned with the relationship between originalism and tradition. See, e.g.,Randy E. Barnett & Lawrence B. Solum, Originalism after Dobbs, Bruen, and Kennedy: The Role of History and Tradition, 118 Nw. U. L. Rev. 433 (2023); Jud Campbell, Tradition, Originalism, and General Fundamental Law, 47 Harv. J.L. & Pub. Pol’y 635 (2024); Girgis, supra note 4, at 1487–96.Show More Second, some scholars such as Reva Siegel, Melissa Murray, and Cary Franklin have critiqued the current Supreme Court’s emphasis on tradition in constitutional rights adjudication from an equality perspective, contending that the Court is elevating traditions that disadvantage women (among others).¹³ 13.See, e.g., Cary Franklin, History and Tradition’s Equality Problem, 133 Yale L.J.F. 946, 950–51 (2024);Serena Mayeri, The Critical Role of History after Dobbs, 2 J. Am. Const. Hist. 171, 190 (2024); Joy Milligan & Bertrall L. Ross II, We (Who Are Not) the People: Interpreting the Undemocratic Constitution, 102 Tex. L. Rev. 305, 339–55 (2023);Melissa Murray, Children of Men: The Roberts Court’s Jurisprudence of Masculinity, 60 Hou. L. Rev. 799 (2023);Melissa Murray & Katherine Shaw, Dobbs andDemocracy,137 Harv. L. Rev. 728, 772–74 (2024); Reva B. Siegel, How “History and Tradition” Perpetuates Inequality: Dobbs on Abortion’s Nineteenth-Century Criminalization, 60 Hou. L. Rev. 901, 932–33 (2023).Show More Third, some scholars—notably Jack Balkin, Katharine Bartlett, Felipe Jiménez, and Dov Fox and Mary Ziegler—have argued in favor of more flexible or “evolving” forms of traditionalism.¹⁴ 14.Jiménez distinguishes between “conservative” and “flexible” traditionalism and draws attention to “legal traditions” that characterize the practice of judicial decision-making. Felipe Jiménez, Tradition in Constitutional Adjudication, 36 Yale J.L. & Humans. 1, 23–30, 44–45 (2025). Fox and Ziegler propose an “[e]volving traditionalism” that “anchors itself in the most recent among those lasting social practices that go back at least decades.” Dov Fox & Mary Ziegler, The Lost History of “History and Tradition,” 98 S. Cal. L. Rev. 1, 47 (2024). Although I share these authors’ interest in appeals to tradition that accommodate criticism of past practices, I do not adopt their particular versions of traditionalism, and I focus on the relationship between traditionalism and women’s rights jurisprudence. Jack Balkin has underscored the heterogeneity and complexity of traditions and has urged an “expansion of constitutional memory” to include those not involved in the formal process of constitutional ratification. Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation 204, 219 (2024). While I draw on various aspects of Balkin’s work—and I share his use of the term “dialectical” to describe tradition, see infra note 135—I devote more specific attention to traditionalism as a method of constitutional interpretation. Further, unlike Balkin, I do not advocate on behalf of any kind of originalism, and I concentrate on feminist challenges to traditionalism. Bartlett, for her part, presents an “integrative view” of tradition that seeks an alternative to either relying wholly on the past or ignoring it. Katharine T. Bartlett, Tradition as Past and Present in Substantive Due Process Analysis, 62 Duke L.J. 535, 572 (2012) [hereinafter Bartlett, Tradition in Substantive Due Process]; see also Katharine T. Bartlett, Tradition, Change, and the Idea of Progress in Feminist Legal Thought, 1995 Wis. L. Rev. 303, 304 [hereinafter Bartlett, Idea of Progress] (arguing that feminists should not adopt an “oppositional stance” toward tradition). Though I share much of Bartlett’s general orientation, my account focuses on the implications of traditionalism’s underlying rationales and analyzes tradition in light of the recent swell of jurisprudence on “history and tradition” in constitutional law.Show More This Article draws on insights from all of these scholars while carrying out its distinctive examination of tradition and its relationship to women’s rights claims.¹⁵ 15.Although this Article focuses on constitutional rights rather than structure, tradition and related concepts have also been employed in separation-of-powers disputes, seeCurtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. 411 (2012), and in federal courts law, see Ernest A. Young, Our Prescriptive Judicial Power: Constitutive and Entrenchment Effects of Historical Practice in Federal Courts Law, 58 Wm. & Mary L. Rev. 535 (2016). For discussion of the distinction between practice-based arguments in the structural and individual rights contexts, see Leah M. Litman, Debunking Antinovelty, 66 Duke L.J. 1407,1413–14 (2017).Show More

Part I lays the groundwork by examining the role played by tradition in case law on constitutional rights. This Part provides a sense of the possible legal functions that tradition could perform. It also clarifies the relationship between traditionalism and originalism, and it addresses the question whether the sources of tradition are legal or cultural.

Part II tackles the conundrums of defining “tradition” and “traditionalism.” I characterize traditions as networks of enduring practices and understandings. I conceptualize traditionalism as an approach to constitutional adjudication that values fidelity to the forms of social organization that traditions help to constitute. Part II emphasizes that traditionalists need not adopt an uncritical posture or one dedicated to copying the past; instead, vigorous traditions include elements of contestation and adaptability over time. Such an approach to tradition can be captured by the label “dialectical traditionalism.” I respond to the objection that my view is not real traditionalism, at least not in the way that defenders of traditionalism would ordinarily use that term.

Part III addresses the relationship between traditionalism and feminism from a theoretical perspective. It both highlights traditionalism’s vulnerability to feminist critique and identifies resources that traditionalism has to offer those concerned about women’s rights. In particular, Part III demonstrates that four leading justifications for traditionalism—rooted in concrete experience, reliance, democracy, and national identity—can support versions of traditionalism that favor women’s rights.

Part IV draws out implications of the proposed view of tradition for constitutional rights adjudication. It recommends, for example, drawing on a range of traditions, including traditions of women’s resistance to sexist legal arrangements and traditions reflecting women’s experiences more generally. I further advocate for openness to the possibility that traditions can change, as well as efforts to shape the contents of tradition by arguing that certain practices—including those embodying injustice toward women—are out of step with more enduring strands.¹⁶ 16.Indeed, problematic strands of tradition can help to illuminate the nature of constitutional violations in the current day. For example, the Supreme Court in the 1973 case Frontiero v. Richardson held unconstitutional statutes requiring a servicewoman, but not a serviceman, to prove that her spouse was actually dependent on her income to claim him as a dependent for benefits purposes. 411 U.S. 677, 688 (1973) (plurality opinion). The plurality reviewed the history of sex discrimination in the United States and critiqued “gross, stereotyped distinctions between the sexes.” Id. at 685. Traditional understandings of women’s roles embraced in the past helped the Justices to identify a constitutional violation in the modern day. This method shares features in common with what other scholars have called “negative precedent”—using historical understandings to cast doubt on the legitimacy of current practices. See, e.g., Reva B. Siegel, The Politics of Constitutional Memory, 20 Geo. J.L. & Pub. Pol’y 19, 54 (2022) [hereinafter Siegel, Constitutional Memory]; Mayeri, supra note 13, at 189–90; infra Subsection IV.B.4.Show More Moreover, it can be beneficial for judges to reason in a traditionalist manner even when they are ruling in accordance with new social understandings.¹⁷ 17.I argue for a presumption that judges should reason in a traditionalist manner even when breaking with tradition; this presumption could be overcome if the customary practices being rejected are sufficiently repugnant from a normative point of view. See infra Section IV.C.Show More The VMI case mentioned earlier provides an example, as does Griswold v. Connecticut, where the Court upheld a right that many would consider novel while stressing the lengthy pedigree of concern for marital privacy.¹⁸ 18.381 U.S. 479, 485–86 (1965).Show More Expressing respect for tradition can be valuable normatively but also pragmatically; it may help to legitimate the ruling even to those skeptical of societal changes.

Part V addresses broader issues surrounding the role of tradition in constitutional jurisprudence. It tackles, for instance, the objection that dialectical traditionalism is indeterminate or merely a vehicle for judges’ moral predilections. This Article aims primarily to examine the relationship between tradition and feminism, rather than to offer a full-blown constitutional theory. Nevertheless, the observations in Part V pave the way for future consideration of the function that tradition can serve in constitutional rights jurisprudence as a whole.

A couple of clarifications regarding the scope and presuppositions of the Article are in order. The Article presupposes the moral correctness of feminism in the sense that women ought to have equal civil rights to men and an equal opportunity to participate in the political and economic life of the nation. This conception is meant to be relatively general and to leave room for varying social and moral views.¹⁹ 19.Of course, there are numerous varieties of feminism. For an overview, see Nancy Levit & Robert R.M. Verchick, Feminist Legal Theory: A Primer 11–40 (2d ed. 2016). Although various strains of feminist theory may interact in complex ways with the ideas in this Article, the goal here is to pose the feminist challenge to traditionalism at a relatively high level of generality that can be endorsed by those with different views on the precise content of feminism.Show More

In addition, some of the arguments about tradition and women’s rights considered here would apply not only to cases involving women, but also to cases involving other forms of inequality, such as racial discrimination and discrimination against LGBT individuals.²⁰ 20.See, e.g., William N. Eskridge, Jr., Sodomy and Guns: Tradition as Democratic Deliberation and Constitutional Interpretation, 32 Harv. J.L. & Pub. Pol’y 193, 202 (2009) (arguing that tradition “on matters of sexuality as well as race has been evolutive and not static”); Kim Forde-Mazrui, Tradition as Justification: The Case of Opposite-Sex Marriage, 78 U. Chi. L. Rev. 281, 296–97, 330–33 (2011) (urging skepticism about tradition as a justification for restricting marriage to the opposite-sex setting, and discussing interracial marriage as well).Show More Moreover, adjudicators’ understandings of certain traditions and their deficiencies can benefit from considering more than one axis of critique at the same time.²¹ 21.For critiques of the Supreme Court’s abortion jurisprudence along axes of both race and gender, for example, see Khiara M. Bridges, Foreword: Race in the Roberts Court, 136 Harv. L. Rev. 23, 42–53 (2022); Michele Goodwin, Involuntary Reproductive Servitude: Forced Pregnancy, Abortion, and the Thirteenth Amendment, 2022 U. Chi. Legal F. 191, 202–08.Show More Although I refer to other forms of discrimination at certain junctures,²² 22.See infra, e.g., notes 221–23, 278, 285–87 and accompanying text.Show More the Article does not have space to develop application of its analysis to additional forms of inequality. It is to be hoped, however, that the Article’s analysis could be useful to future such projects.²³ 23.Another clarification: The Article concentrates on the role of tradition in constitutional “adjudication,” understood as the activity in which judges are engaged when deciding constitutional cases. That activity is meant to encompass “interpretation” in the sense of an effort to ascertain the contents of the law. For many observers, there is not much left for judges to do once they have engaged in interpretation; for such observers, “judges deciding constitutional cases must enforce the constitutional law.” Mitchell N. Berman & Kevin Toh, Pluralistic Nonoriginalism and the Combinability Problem, 91 Tex. L. Rev. 1739, 1740 (2013). As Berman and Toh point out, however, the “issue of what judges should do in constitutional disputes” is conceptually “distinct from the legal issue of what the constitutional law is or consists of.” Id. at 1745; see also Stephen M. Griffin, Pluralism in Constitutional Interpretation, 72 Tex. L. Rev. 1753, 1767 (1994) (distinguishing between the scholarly task of “constitutional interpretation” and “actual constitutional decisionmaking”). And one might adopt the opinion that judges have a different task in adjudication than they do in interpretation. For instance, if interpretation yields several viable candidates for the law’s contents, the judge qua adjudicator might have leeway “to resolve a dispute by determining, amid the clamour of rival claims, what is just.” Garrett Barden & Tim Murphy, Law and Justice in Community 132 (2010). I do not take a position on what (if anything) is involved in adjudication beyond determination of the contents of the law. Instead, I highlight rationales for drawing on tradition at any juncture in the constitutional decision-making process. I then argue that, to the extent one is persuaded by these justifications, one ought to take a more receptive approach toward women’s rights claims than is commonly presumed.Show More

The notion that feminism is anything but flatly contrary to traditionalism may seem counterintuitive. This Article identifies and explores the tensions. But it also seeks to uncover facets of tradition that are consonant with the advancement of women’s rights.

1.  Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2253–54 (2022). ↑
2.  N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2126 (2022). For other recent Supreme Court invocations of tradition, see, e.g., Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2431 (2022) (Establishment Clause); Vidal v. Elster, 144 S. Ct. 1507, 1518–19 (2024) (speech). ↑
3.  Marc O. DeGirolami, The Traditions of American Constitutional Law, 95 Notre Dame L. Rev. 1123, 1125 (2020). ↑
4.  See, e.g., Marc O. DeGirolami, Traditionalism Rising, 24
   

   J.

   Contemp. Legal Issues 9, 54–56 (2023); Michael W. McConnell, The Right to Die and the Jurisprudence of Tradition, 1997 Utah L. Rev. 665, 681–90; see also Sherif Girgis, Living Traditionalism, 98 N.Y.U. L. Rev. 1477, 1554–55 (2023) (referring to “living traditionalism” as “ineliminable, spreading, and increasingly deliberate,” though also voicing concerns with the methodology). ↑

5.  417 U.S. 484, 494–97 (1974). ↑
6.  United States v. Virginia, 518 U.S. 515, 558 (1996). ↑
7.  Id. at 520. ↑
8.  See, e.g., City of Austin v. Reagan Nat’l Advert. of Austin, LLC, 142 S. Ct. 1464, 1475 (2022) (Sotomayor, J.) (placing weight on “unbroken tradition” of regulating “on-premises” signs differently from “off-premises” signs in a First Amendment case); Timbs v. Indiana, 586 U.S. 146, 149 (2019) (Ginsburg, J.) (explaining that Eighth Amendment protection against excessive fines has “deep roots in our history and tradition” (alterations omitted) (quoting McDonald v. City of Chicago, 561 U.S. 742, 767 (2010))); Washington v. Glucksberg, 521 U.S. 702, 723 (1997) (Rehnquist, C.J.) (inquiring into whether the asserted right to physician-assisted suicide “has any place in our Nation’s traditions”); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 589 (1980) (Brennan, J., concurring in the judgment) (explaining that the First Amendment right of access to trial proceedings “has special force when drawn from an enduring and vital tradition”); Fisher v. United States, 425 U.S. 391, 431 (1976) (Marshall, J., concurring in the judgment) (critiquing the Court for an approach “contrary to the history and traditions of the privilege against self-incrimination both in this country and in England”). For an overview of recent scholarship on tradition, see infra notes 12–14 and accompanying text. ↑
9.  See, e.g., Frederick Schauer, Precedent, 39 Stan. L. Rev. 571, 597–98 (1987). ↑
10.  See infra Section III.A. ↑
11.  See infra Section III.D. ↑
12.  DeGirolami, supra note 3, at 1125; McConnell, supra note 4, at 681. For other contributions favorable to tradition, see, e.g., Anthony T. Kronman, Precedent and Tradition, 99 Yale L.J. 1029, 1047–55 (1990); Ernest Young, Rediscovering Conservatism: Burkean Political Theory and Constitutional Interpretation,
    

    72

    N.C. L. Rev. 619, 697–715 (1994); see also id. at 703 (emphasizing resources for change from within tradition). Much of the literature on traditionalism in the past few years emanates from those concerned with the relationship between originalism and tradition. See, e.g., Randy E. Barnett & Lawrence B. Solum, Originalism after Dobbs, Bruen, and Kennedy: The Role of History and Tradition, 118 Nw. U. L. Rev

    .

    433 (2023); Jud Campbell, Tradition, Originalism, and General Fundamental Law, 47 Harv. J.L. & Pub. Pol’y 635 (2024); Girgis, supra note 4, at 1487–96. ↑

13.  See, e.g., Cary Franklin, History and Tradition’s Equality Problem, 133 Yale L.J.F
    

    .

    946, 950–51 (2024); Serena Mayeri, The Critical Role of History after Dobbs, 2 J. Am. Const. Hist. 171, 190 (2024); Joy Milligan & Bertrall L. Ross II, We (Who Are Not) the People: Interpreting the Undemocratic Constitution, 102 Tex. L. Rev

    .

    305, 339–55 (2023); Melissa Murray, Children of Men: The Roberts Court’s Jurisprudence of Masculinity, 60 Hou. L. Rev

    .

    799 (2023); Melissa Murray & Katherine Shaw, Dobbs and Democracy, 137 Harv. L. Rev. 728, 772–74 (2024); Reva B. Siegel, How “History and Tradition” Perpetuates Inequality: Dobbs on Abortion’s Nineteenth-Century Criminalization, 60 Hou. L. Rev. 901, 932–33 (2023). ↑

14.  Jiménez distinguishes between “conservative” and “flexible” traditionalism and draws attention to “legal traditions” that characterize the practice of judicial decision-making. Felipe Jiménez, Tradition in Constitutional Adjudication, 36 Yale J.L. & Humans. 1, 23–30, 44–45 (2025). Fox and Ziegler propose an “[e]volving traditionalism” that “anchors itself in the most recent among those lasting social practices that go back at least decades.” Dov Fox & Mary Ziegler, The Lost History of “History and Tradition,” 98 S. Cal. L. Rev. 1, 47 (2024). Although I share these authors’ interest in appeals to tradition that accommodate criticism of past practices, I do not adopt their particular versions of traditionalism, and I focus on the relationship between traditionalism and women’s rights jurisprudence. Jack Balkin has underscored the heterogeneity and complexity of traditions and has urged an “expansion of constitutional memory” to include those not involved in the formal process of constitutional ratification. Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation 204, 219 (2024). While I draw on various aspects of Balkin’s work—and I share his use of the term “dialectical” to describe tradition, see infra note 135—I devote more specific attention to traditionalism as a method of constitutional interpretation. Further, unlike Balkin, I do not advocate on behalf of any kind of originalism, and I concentrate on feminist challenges to traditionalism. Bartlett, for her part, presents an “integrative view” of tradition that seeks an alternative to either relying wholly on the past or ignoring it. Katharine T. Bartlett, Tradition as Past and Present in Substantive Due Process Analysis, 62 Duke L.J. 535, 572 (2012) [hereinafter Bartlett, Tradition in Substantive Due Process]; see also Katharine T. Bartlett, Tradition, Change, and the Idea of Progress in Feminist Legal Thought, 1995 Wis. L. Rev. 303, 304 [hereinafter Bartlett, Idea of Progress] (arguing that feminists should not adopt an “oppositional stance” toward tradition). Though I share much of Bartlett’s general orientation, my account focuses on the implications of traditionalism’s underlying rationales and analyzes tradition in light of the recent swell of jurisprudence on “history and tradition” in constitutional law. ↑
15.  Although this Article focuses on constitutional rights rather than structure, tradition and related concepts have also been employed in separation-of-powers disputes, see Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev
    

    .

    411 (2012), and in federal courts law, see Ernest A. Young, Our Prescriptive Judicial Power: Constitutive and Entrenchment Effects of Historical Practice in Federal Courts Law, 58 Wm. & Mary L. Rev. 535 (2016). For discussion of the distinction between practice-based arguments in the structural and individual rights contexts, see Leah M. Litman, Debunking Antinovelty, 66 Duke L.J. 1407, 1413–14 (2017). ↑

16.  Indeed, problematic strands of tradition can help to illuminate the nature of constitutional violations in the current day. For example, the Supreme Court in the 1973 case Frontiero v. Richardson held unconstitutional statutes requiring a servicewoman, but not a serviceman, to prove that her spouse was actually dependent on her income to claim him as a dependent for benefits purposes. 411 U.S. 677, 688 (1973) (plurality opinion). The plurality reviewed the history of sex discrimination in the United States and critiqued “gross, stereotyped distinctions between the sexes.” Id. at 685. Traditional understandings of women’s roles embraced in the past helped the Justices to identify a constitutional violation in the modern day. This method shares features in common with what other scholars have called “negative precedent”—using historical understandings to cast doubt on the legitimacy of current practices. See, e.g., Reva B. Siegel, The Politics of Constitutional Memory, 20 Geo. J.L. & Pub. Pol’y 19, 54 (2022) [hereinafter Siegel, Constitutional Memory]; Mayeri, supra note 13, at 189–90; infra Subsection IV.B.4. ↑
17.  I argue for a presumption that judges should reason in a traditionalist manner even when breaking with tradition; this presumption could be overcome if the customary practices being rejected are sufficiently repugnant from a normative point of view. See infra Section IV.C. ↑
18.  381 U.S. 479, 485–86 (1965). ↑
19.  Of course, there are numerous varieties of feminism. For an overview, see Nancy Levit & Robert R.M. Verchick, Feminist Legal Theory: A Primer 11–40 (2d ed. 2016). Although various strains of feminist theory may interact in complex ways with the ideas in this Article, the goal here is to pose the feminist challenge to traditionalism at a relatively high level of generality that can be endorsed by those with different views on the precise content of feminism. ↑
20.  See, e.g., William N. Eskridge, Jr., Sodomy and Guns: Tradition as Democratic Deliberation and Constitutional Interpretation, 32 Harv. J.L. & Pub. Pol’y 193, 202 (2009) (arguing that tradition “on matters of sexuality as well as race has been evolutive and not static”); Kim Forde-Mazrui, Tradition as Justification: The Case of Opposite-Sex Marriage, 78 U. Chi. L. Rev. 281, 296–97, 330–33 (2011) (urging skepticism about tradition as a justification for restricting marriage to the opposite-sex setting, and discussing interracial marriage as well). ↑
21.  For critiques of the Supreme Court’s abortion jurisprudence along axes of both race and gender, for example, see Khiara M. Bridges, Foreword: Race in the Roberts Court, 136 Harv. L. Rev. 23, 42–53 (2022); Michele Goodwin, Involuntary Reproductive Servitude: Forced Pregnancy, Abortion, and the Thirteenth Amendment, 2022 U. Chi. Legal F. 191, 202–08. ↑
22.  See infra, e.g., notes 221–23, 278, 285–87 and accompanying text. ↑
23.  Another clarification: The Article concentrates on the role of tradition in constitutional “adjudication,” understood as the activity in which judges are engaged when deciding constitutional cases. That activity is meant to encompass “interpretation” in the sense of an effort to ascertain the contents of the law. For many observers, there is not much left for judges to do once they have engaged in interpretation; for such observers, “judges deciding constitutional cases must enforce the constitutional law.” Mitchell N. Berman & Kevin Toh, Pluralistic Nonoriginalism and the Combinability Problem, 91 Tex. L. Rev. 1739, 1740 (2013). As Berman and Toh point out, however, the “issue of what judges should do in constitutional disputes” is conceptually “distinct from the legal issue of what the constitutional law is or consists of.” Id. at 1745; see also Stephen M. Griffin, Pluralism in Constitutional Interpretation, 72 Tex. L. Rev. 1753, 1767 (1994) (distinguishing between the scholarly task of “constitutional interpretation” and “actual constitutional decisionmaking”). And one might adopt the opinion that judges have a different task in adjudication than they do in interpretation. For instance, if interpretation yields several viable candidates for the law’s contents, the judge qua adjudicator might have leeway “to resolve a dispute by determining, amid the clamour of rival claims, what is just.” Garrett Barden & Tim Murphy, Law and Justice in Community 132 (2010). I do not take a position on what (if anything) is involved in adjudication beyond determination of the contents of the law. Instead, I highlight rationales for drawing on tradition at any juncture in the constitutional decision-making process. I then argue that, to the extent one is persuaded by these justifications, one ought to take a more receptive approach toward women’s rights claims than is commonly presumed. ↑