Issue 4

Tradition and Feminism in Constitutional Rights Adjudication

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. ↑

The Right Thing in the Wrong Place? Unstable Dicta and Aesthetics’ Gradual Incursion Into the Traditional Police Power Justifications

Aesthetic regulation is fast becoming a pervasive feature of many cities’ and states’ zoning regimes. While aesthetics are often used in conjunction with other justifications for zoning—itself an exercise of the well-recognized but somewhat nebulously defined police power—the constitutional basis for aesthetics’ use as the sole justification for zoning decisions has not been closely examined by courts or academics. Over the past seventy years, the Supreme Court has steadily bolstered the legitimacy of solely aesthetic zoning by suggesting that it should be included among the other traditional police power justifications. Though most of the cases falling within this doctrinal trend look to dicta from the well-known Berman v. Parker for support, their approaches have largely failed to critically engage with the Berman Court’s justifications for aesthetic regulation. Current scholarship also takes the genesis of this doctrine for granted, appearing more interested in examining the conflicts that arise when aesthetic regulation brushes up against other areas of the law, such as the First Amendment’s guarantee of free expression or the disproportionate impacts that aesthetic regulation and restrictive zoning have on certain communities, than in examining the doctrine’s origins. This Note attempts to probe the instability of this growing doctrine’s foundations by examining solely aesthetic regulation’s complicated historicity and constitutionality. Ultimately, this Note suggests that recent trends indicate a new willingness by the Supreme Court to reexamine troubled dicta and tackle head-on the question of whether aesthetics may stand on their own as a legitimate justification for exercises of the police power.

“A nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard.”1 1.Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388 (1926).Show More

Introduction

This Note discusses aesthetic regulation’s entry into the traditional justifications for exercises of the police power, which include the health, safety, morals, and general welfare of the populace.2 2.See id. at 395 (“[B]efore the ordinance can be declared unconstitutional, [it must be said] that such provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.” (first citing Thomas Cusack Co. v. City of Chicago, 242 U.S. 526, 530–31 (1917); and then citing Jacobson v. Massachusetts, 197 U.S. 11, 30–31 (1905))). Over one hundred years earlier, William Blackstone described the police power as the due regulation and domestic order of the kingdom: whereby the individuals of the state, like members of a well governed family, are bound to conform their general behaviour to the rules of propriety, good neighbourhood, and good manners; and to be decent, industrious, and inoffensive in their respective stations. 4 William Blackstone, Commentaries *162.Show More Though it is not contested that aesthetics may be part of a valid justification for regulatory exercises of the police power, especially when combined with one of the traditional justifications just listed, a more difficult question arises when one asks whether aesthetics alone may serve as a valid justification for exercises of this power, such as zoning.

As the slightly oxymoronic “gradual incursion” may suggest,3 3.Incursion, Oxford English Dictionary, https://www.oed.com/dictionary/incursion_n?tab=‌meaning_and_use (last visited Mar. 6, 2025) (“A hostile inroad or invasion; esp. one of sudden and hasty character; a sudden attack.” (emphasis added)).Show More the history of aesthetics’ entry into the pantheon of police powers was a convoluted one—at least before now-famous dicta in Berman v. Parker abruptly ushered aesthetics into the company of its police power predecessors.4 4.To be discussed in greater depth in Part II, these dicta in context state that [t]he concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. Berman v. Parker, 348 U.S. 26, 33 (1954) (emphasis added) (citing Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 424 (1952)).Show More While widespread acceptance of this dicta over the past seventy years has led to steadily increasing support for aesthetics alone as a valid justification for exercises of the police power,5 5.See discussion infra Section II.C; infra Part III.Show More this Note examines how the Supreme Court’s treatment of this question has scarcely yielded definitive answers, and how largely uncritical interpretations of this dicta and the history behind it have produced a doctrine that is troubled and persistent in equal measure. In other words, this Note explores how aesthetic zoning—a sly cousin to the traditional justifications for exercises of the police power, developed largely through dicta rather than on its own merits—could be aptly described as a “right thing in the wrong place.”6 6.Euclid, 272 U.S. at 388.Show More

Property rights were never absolutely free from government regulation, even before much of the doctrine concerning police powers had fully developed. Rather than being hyper-focused on the triumph of the individual over the encroaching powers of the State, early American states often subordinated individual rights to the pursuit of the common welfare.7 7.See, e.g., Georgette C. Poindexter, Light, Air, or Manhattanization?: Communal Aesthetics in Zoning Central City Real Estate Development, 78 B.U. L. Rev. 445, 470 (1998). For the proposition that the public good took precedence over individual concerns throughout the eighteenth century, Professor Poindexter cites to John Jay’s 1790 Charge to the Grand Juries that “‘civil liberty consists, not in a right to every man to do just what he pleases,’ but only to do that which ‘the equal and constitutional laws of the county admit to be consistent with the public good.’” Id. at 470 n.177 (quoting Barry Alan Shain, The Myth of American Individualism: The Protestant Origins of American Political Thought 32 (1994)).Show More Two common law maxims, salus populi suprema est lex (“the welfare of the people is the supreme law”) and sic utere tuo ut alienum non laedas (“use your own right so as to not injure the right of others”), were pillars of American jurists’ vision of a well-regulated society and promoted a multitude of government restrictions on property rights.8 8.See William J. Novak, The People’s Welfare: Law and Regulation in Nineteenth-Century America 42, 47 (1996).Show More The Supreme Court recognized the common law tradition of police power regulation as early as 1824 when Chief Justice Marshall declared that “[t]he right to use all property, must be subject to modification by municipal law. Sic utere tuo ut alienum non l[a]edas, is a fundamental maxim. It belongs exclusively to the local State Legislatures, to determine how a man may use his own, without injuring his neighbour.”9 9.Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 53–54 (1824).Show More Other cases from this period also recognized limitations on property rights and offered sweeping, absolute statements in support of such regulation. For example, an early Massachusetts case stated that

[a]ll property in this commonwealth . . . [is] held subject to those general regulations, which are necessary to the common good and general welfare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment . . . as the legislature . . . may think necessary and expedient.10 10.Commonwealth v. Alger, 61 Mass. (7 Cush.) 53, 85 (1851); see also Novak, supra note 8, at 21 (arguing that Alger was “firmly entrenched in the intellectual, political, and legal traditions of nineteenth-century America”).Show More

The police power has long been thought of as a living, evolving concept, unburdened by strict rules or specific criteria.11 11.See, e.g., Goldblatt v. Town of Hempstead, 369 U.S. 590, 594 (1962) (“The term ‘police power’ connotes the time-tested conceptional limit of public encroachment upon private interests. Except for the substitution of the familiar standard of ‘reasonableness,’ this Court has generally refrained from announcing any specific criteria.”); see also Douglas W. Kmiec, Inserting the Last Remaining Pieces into the Takings Puzzle, 38 Wm. & Mary L. Rev. 995, 1011 n.78 (1997) (stating that “[n]either property nor police power is an absolute right; each evolves contextually and over time”).Show More Indeed, in Village of Euclid v. Ambler Realty Co., the Court stated that “while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation.”12 12.272 U.S. 365, 387 (1926).Show More Thus, neither the brief, pre-twentieth-century review above, nor the more in-depth historical review to follow in Part II, is meant to suggest that even if aesthetics alone were historically a suspect candidate for the police power, they can never be a valid justification. Rather, the question is whether aesthetics, either alone or in combination with the other traditional justifications for exercises of the police power, are properly included in the category of “the general welfare” considering the latter’s broad judicial recognition at the time the doctrine was first being formed. Put differently, are aesthetics—then or now—a compelling enough contribution to the people’s welfare to justify diminutions in property rights?

Despite extensive study of the practical consequences of urban renewal programs and aesthetic regulation,13 13.See, e.g., Herbert J. Gans, The Failure of Urban Renewal, Comment. (Apr. 1965), https://‌www.commentary.org/articles/herbert-gans/the-failure-of-urban-renewal/ [https://perma.cc/P‌49G-MENC] (noting the displacement caused by urban renewal programs); Vanessa Brown Calder, Zoning, Land-Use Planning, and Housing Affordability, 823 Cato Inst. Pol’y Analysis, Oct. 18, 2017, at 1, 1–2, https://www.cato.org/policy-analysis/zoning-land-use-plan‌ning-housing-affordability [https://perma.cc/UZM4-CGRU] (concluding that the rise in aesthetic regulations has caused many cities to face housing affordability challenges).Show More and strong scholarly censure of the Supreme Court’s interpretation of the Fifth Amendment’s “Public Use” Clause to justify economic regulation and urban renewal programs in decisions like Berman and Hawaii Housing Authority v. Midkiff,14 14.For a few representative works discussing the Supreme Court’s Public Use Clause jurisprudence, see Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain 178–79 (1985) (arguing that the Supreme Court’s interpretation of the public use standard in Berman did not fall under traditional conceptions of the public use requirement and that its necessity argument merely belied the “state’s desire to transfer property between private parties”); Margaret Jane Radin, Reinterpreting Property 136 (1993) (arguing that “the term ‘public use’ has recently been interpreted as broadly as possible” in Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 240 (1984)).Show More few authors have turned their attention specifically toward aesthetic regulation’s suspect historicity and constitutionality. This Note attempts to fill that analytical gap by examining the development of aesthetic regulation within the police powers doctrine from the pre-Berman era to the present, post-Berman age. It proceeds in four parts: Part I provides a brief grounding in the real-world impacts that aesthetic regulation has on the ongoing housing availability and affordability crisis as a form of restrictive zoning. Part II examines the development of aesthetics as a possible addition to the traditional police power justifications, dividing the inquiry into three distinct periods. The first period, discussed in Section II.A, focuses on early doctrinal trends in what this author terms the “pre-Berman period.” It posits that although courts initially found aesthetically motivated regulation inimical to proper exercises of the police power, the Supreme Court became comfortable accepting post hoc aesthetic justifications for exercises of the police power when the highest court of a state would do so. This tentative comfort was far from universally accepted, however, as other courts during this time insisted that exercises of the police power were to be reserved for necessitous circumstances, holding that such necessity did not include cities’ desire to regulate property to achieve aesthetic goals.

The second period, discussed in Section II.B, focuses on two decisions that ushered aesthetics further into the family of police power justifications, Euclid15 15.272 U.S. at 388.Show More and Berman.16 16.348 U.S. 26, 33 (1954).Show More While these cases have been used by the Supreme Court to justify the constitutionality of aesthetic regulation and to hint at the possible constitutionality of purely aesthetic zoning (though such a case has not yet reached the Court), a close reading of Euclid and Berman suggests that aesthetic zoning was to be used in only a very narrow set of circumstances. Section II.C discusses Berman’s progeny and examines how extensively its dicta have been distorted as more cases involving aesthetic regulation have reached the Court. Part III briefly discusses trends at the state level toward an acceptance of aesthetic and purely aesthetic regulation. Finally, Part IV examines recent trends in the Supreme Court that may suggest an awakening to the faltering legal foundations of aesthetics as a valid police power justification.

  1.  Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388 (1926). ↑
  2.  See id. at 395 (“[B]efore the ordinance can be declared unconstitutional, [it must be said] that such provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.” (first citing Thomas Cusack Co. v. City of Chicago, 242 U.S. 526, 530–31 (1917); and then citing Jacobson v. Massachusetts, 197 U.S. 11, 30–31 (1905))). Over one hundred years earlier, William Blackstone described the police power as

    the due regulation and domestic order of the kingdom: whereby the individuals of the state, like members of a well governed family, are bound to conform their general behaviour to the rules of propriety, good neighbourhood, and good manners; and to be decent, industrious, and inoffensive in their respective stations.

    4 William Blackstone, Commentaries *162. ↑

  3.  Incursion, Oxford English Dictionary, https://www.oed.com/dictionary/incursion_n?tab=‌meaning_and_use (last visited Mar. 6, 2025) (“A hostile inroad or invasion; esp. one of sudden and hasty character; a sudden attack.” (emphasis added)). ↑
  4.  To be discussed in greater depth in Part II, these dicta in context state that

    [t]he concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.

    Berman v. Parker, 348 U.S. 26, 33 (1954) (emphasis added) (citing Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 424 (1952)). ↑

  5.  See discussion infra Section II.C; infra Part III. ↑
  6.  Euclid, 272 U.S. at 388. ↑
  7.  See, e.g., Georgette C. Poindexter, Light, Air, or Manhattanization?: Communal Aesthetics in Zoning Central City Real Estate Development, 78 B.U. L. Rev. 445, 470 (1998). For the proposition that the public good took precedence over individual concerns throughout the eighteenth century, Professor Poindexter cites to John Jay’s 1790 Charge to the Grand Juries that “‘civil liberty consists, not in a right to every man to do just what he pleases,’ but only to do that which ‘the equal and constitutional laws of the county admit to be consistent with the public good.’” Id. at 470 n.177 (quoting Barry Alan Shain, The Myth of American Individualism: The Protestant Origins of American Political Thought 32 (1994)). ↑
  8.  See William J. Novak, The People’s Welfare: Law and Regulation in Nineteenth-Century America 42, 47 (1996). ↑
  9.  Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 53–54 (1824). ↑
  10.  Commonwealth v. Alger, 61 Mass. (7 Cush.) 53, 85 (1851); see also Novak, supra note 8, at 21 (arguing that Alger was “firmly entrenched in the intellectual, political, and legal traditions of nineteenth-century America”). ↑
  11.  See, e.g., Goldblatt v. Town of Hempstead, 369 U.S. 590, 594 (1962) (“The term ‘police power’ connotes the time-tested conceptional limit of public encroachment upon private interests. Except for the substitution of the familiar standard of ‘reasonableness,’ this Court has generally refrained from announcing any specific criteria.”); see also Douglas W. Kmiec, Inserting the Last Remaining Pieces into the Takings Puzzle, 38 Wm. & Mary L. Rev. 995, 1011 n.78 (1997) (stating that “[n]either property nor police power is an absolute right; each evolves contextually and over time”). ↑
  12.  272 U.S. 365, 387 (1926). ↑
  13.  See, e.g., Herbert J. Gans, The Failure of Urban Renewal, Comment. (Apr. 1965), https://‌www.commentary.org/articles/herbert-gans/the-failure-of-urban-renewal/ [https://perma.cc/P‌49G-MENC] (noting the displacement caused by urban renewal programs); Vanessa Brown Calder, Zoning, Land-Use Planning, and Housing Affordability, 823 Cato Inst. Pol’y Analysis, Oct. 18, 2017, at 1, 1–2, https://www.cato.org/policy-analysis/zoning-land-use-plan‌ning-housing-affordability [https://perma.cc/UZM4-CGRU] (concluding that the rise in aesthetic regulations has caused many cities to face housing affordability challenges). ↑
  14.  For a few representative works discussing the Supreme Court’s Public Use Clause jurisprudence, see Richard A. Epstein, Takings: Private Property and the Power of Eminent

    Domain 178–79 (1985) (arguing that the Supreme Court’s interpretation of the public use standard in Berman did not fall under traditional conceptions of the public use requirement and that its necessity argument merely belied the “state’s desire to transfer property between private parties”); Margaret Jane Radin, Reinterpreting Property

    136 (1993) (arguing that “the term ‘public use’ has recently been interpreted as broadly as possible” in Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 240 (1984)). ↑

  15.  272 U.S. at 388. ↑

  16.  348 U.S. 26, 33 (1954). ↑

Political Mootness

Congress and the executive have engaged in major clashes over the scope of their powers, particularly involving Congress’s subpoena power and power of the purse. In the last two decades, none of these disputes with the government represented on both sides of the “v” has ended in a final judgment on the merits. This Article develops the concept of “political mootness.” As elections take place and the parties in interest to litigation change, cases become politically moot. In the judiciary, political mootness manifests in three ways: legal mootness, separation-of-powers settlements conditional on vacatur of judicial opinions, or executive discretion in intra-branch prosecutions.

But political mootness also affects the coordinate branches. Through a series of original interviews,** **.This Article draws in part on interviews conducted by the author with confidential sources. Out of respect to the confidential nature of these interviews, and to preserve promises of anonymity made to sources, the Virginia Law Review did not independently verify the content of these interviews. Representations concerning the substance of these interviews are the sole responsibility of the author.Show Morethis Article shows that Congress self-constrains its authority preemptively to avoid litigation. Congress is aware that litigation threatens to drag out disputes beyond its electoral mandate and so pivots to use less than the full scope of its authority. These interviews also reveal a widespread practice of “friendly subpoenas,” requested by putative witnesses for legal, political, or other cover. Although Congress appears to have significant authority, when executive witnesses are truly recalcitrant, that authority is at its lowest potency.

With this broader context for inter-branch conflicts, this Article returns to take on the role of adjudication in those conflicts. Adjudication performs neither law declaration nor dispute resolution when the United States is represented on both sides. Instead, this Article argues, adjudication is a forum for tripartite dialogue about the structural constitution’s boundaries. In this frame, some aspects of political mootness are desirable, but other aspects have entrenched structural disadvantages that Congress faces. This Article offers some proposals to strengthen Congress’s position in disputes with the executive, while taking advantage of some of political mootness’s features.

Introduction

In times of divided government, high-stakes conflicts between the political branches erupt. Sometimes it’s constitutional hardball.1 1.Mark Tushnet, Constitutional Hardball, 37 J. Marshall L. Rev. 523, 523 (2004) (naming the phenomenon where “political claims and practices—legislative and executive initiatives—that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with existing pre-constitutional understandings”).Show More Other times, it’s a constitutional showdown.2 2.See generally Eric A. Posner & Adrian Vermeule, Constitutional Showdowns, 156 U. Pa. L. Rev. 991, 991 (2008) (“Showdowns occur between the President and the courts, between Congress and the courts, as well as between the President and Congress. Indeed, some showdowns involve all three branches simultaneously, or threaten to do so.”).Show More And sometimes, it’s constitutional no-ball.3 3.See Matthew Callahan & Reuben Fischer-Baum, Where the Trump Administration Is Thwarting House Oversight, Wash. Post (Oct. 11, 2019), https://www.washingtonpost.com/gr‌aphics/2019/politics/trump-blocking-congress (cataloguing Trump Administration refusals to comply with congressional subpoenas).Show More Since the George W. Bush Administration, the House has subpoenaed sitting cabinet officials and former White House Counsels; it has investigated a former President’s involvement with a riot on the Capitol; and it has sought to enforce its power of the purse through shutdowns. The executive branch has pushed back, using claims of executive privilege, enforcement discretion, or other tools.4 4.See infra Part I.Show More In some, but importantly not all,5 5.See infra Part II.Show More instances, the House has called on the federal judiciary to back its use of authority. What goes into the decision to initiate litigation? And what function does that litigation serve?

This Article examines the role of adjudication in apex separation-of-powers disputes: cases brought by Congress against the president and intra-branch prosecutions. I argue that these cases become “politically moot” when elections result in unified government and the interested parties to the case change. Political mootness, I will show, is a concept with legal and political dimensions. It has some positive features, but it can also entrench structural disadvantages that burden Congress when it takes on the executive.

The Article is focused on “apex powers” disputes.6 6.See Aziz Z. Huq, Legal or Political Checks on Apex Criminality: An Essay on Constitutional Design, 65 UCLA L. Rev. 1506, 1511–14 (2018) (embracing the looseness of the term “apex criminality” to describe offenses committed by high-level officials).Show More This includes a subset of separation-of-powers cases that implicate core constitutional powers: litigation between the political branches as parties and intra-branch prosecutions. I include, for example, when a House committee sues to enforce a subpoena against White House officials.7 7.I exclude suits where government actors are not parties on both sides of the litigation, which would include challenges over whether congressional legislation impermissibly infringes on executive power. I draw this line because federal courts operate differently when adjudicating disputes between branches as parties to litigation. See Z. Payvand Ahdout, Separation-of-Powers Avoidance, 132 Yale L.J. 2360, 2363, 2365–66 (2023).Show More Critically, this set of cases includes power issues such as congressional subpoena power, the scope of governmental privileges and immunities, and the line between Congress’s appropriations power and the president’s enforcement discretion.

It turns out that in the last two decades, these cases have never reached a final judgment on the merits. As these cases take a protracted path through the judiciary, they do so against the backdrop of election cycles. With time, the parties in interest change. The House moves from Democratic to Republican control or the presidency changes hands. Scholarship has accounted for the ways elections change, for example, the positions that the Justice Department takes in litigation8 8.See, e.g., Cristina M. Rodríguez, The Supreme Court, 2020 Term—Foreword: Regime Change, 135 Harv. L. Rev. 1, 4 (2021); Michael R. Dreeben, Stare Decisis in the Office of the Solicitor General, 130 Yale L.J.F. 541, 552 (2021); Margaret H. Lemos & Deborah A. Widiss, The Solicitor General, Consistency, and Credibility, 100 Notre Dame L. Rev. 621, 623–24 (2025) (examining multiple explanations for the Solicitor General’s changes in positions).Show More or the incentives that elected officials have in initiating or dropping litigation.9 9.Zachary D. Clopton & Katherine Shaw, Public Law Litigation and Electoral Time, 2023 Wis. L. Rev. 1513, 1514.Show More But what about the cases that are already in federal court? How do they end?

Part I documents a concept I call “political mootness.” In the judiciary, political mootness takes three forms. First, and most straightforwardly, some of these cases are rendered legally moot when the parties in control change. The issue in the case is no longer “live,” thus precluding judicial review. For example, in an appropriations challenge, a new president may not continue to spend funds in the way the House alleged was ultra vires.10 10.See, e.g., Yellen v. U.S. House of Representatives, 142 S. Ct. 332 (2021) (vacating as legally moot the dispute over border wall funding initiated by the House during the first Trump Administration); Petition for a Writ of Certiorari at 11, Yellen, 142 S. Ct. 332 (No. 20-1738) (“Following the change in Administration, and consistent with the President’s discretion that ‘no more American taxpayer dollars be diverted to construct a border wall,’ [the Department of Defense] has canceled all border-wall projects and discontinued using any of the challenged funds for any further construction.” (quoting Proclamation No. 10142, 86 Fed. Reg. 7225 (Jan. 27, 2021))).Show More

Second, political mootness comes to fruition when the parties negotiate separation-of-powers settlements. When elections result in a rotation of power that puts the same political party in control of both the House and the White House, they often reach a settlement conditional on universal vacatur of every opinion in the case.11 11.This has one qualified exception. See infra Section I.B.Show More Although this separation-of-powers settlement has become the dominant resolution in modern apex litigation, this is the first Article to identify its existence and incorporate it into structural constitutional scholarship. It is somewhat surprising that cases that receive so much attention—from litigation over President Obama’s allegedly ultra vires funding of the Affordable Care Act (“ACA”)12 12.See U.S. House of Representatives v. Burwell, 130 F. Supp. 3d 53, 63 (D.D.C. 2015).Show More to that over former White House Counsel Don McGahn’s categorical refusal to testify before Congress13 13.See Comm. on the Judiciary, U.S. House of Representatives v. McGahn, 415 F. Supp. 3d 148, 153 (D.D.C. 2019).Show More—still have discoveries to be unearthed. This may be because too often, attention is focused on the Supreme Court (or, more accurately, on anticipation of the Supreme Court’s review). But these cases may never get there. Across cases, buried in dockets, is evidence of a separation-of-powers agreement between the branches of government that leaves much to be uncovered.

Third, political mootness manifests in intra-branch criminal cases. Almost from their inception, the prosecutions of then-former President Trump prompted commentary and anxiety about whether the cases could resolve before the November 2024 election.14 14.See, e.g., James D. Zirin, Can Trump Conceivably Beat the Legal Clock—and the Rap?, The Hill (Oct. 9, 2023, 1:30 PM), https://thehill.com/opinion/judiciary/4244738-can-trump-c‌onceivably-beat-the-legal-clock-and-the-rap/ [https://perma.cc/LC75-KFQT] (“The D.C. claim of presidential immunity is unlikely to win dismissal of the case, but it may succeed in delaying his D.C. trial, now scheduled for March 4, to a date known only in Neverland.”); David A. Graham, The Cases Against Trump: A Guide, The Atlantic (Jan. 6, 2025), https://ww‌w.theatlantic.com/ideas/archive/2025/01/donald-trump-legal-cases-charges/675531.Show More Of course, they did not. And upon President Trump’s election, the Special Counsel consulted binding Department of Justice (“DOJ”) policy, which became binding on the courts: a sitting president cannot be prosecuted.15 15.1 Jack Smith, Final Report on the Special Counsel’s Investigations and Prosecutions 1 (2025), https://www.justice.gov/storage/Report-of-Special-Counsel-Smith-Volume-1-Januar‌y-2025.pdf [https://perma.cc/3UAE-553F].Show More

Political mootness is borne of a design feature of American democracy: time. In the political branches, time plays a constraining role on authority. Through fixed and regular elections, the Constitution places a time limit on the power of any individual president or member of Congress. But time operates in a different direction (and more indirectly) in the judicial branch. It is not fixed and regular elections that constrain federal judges with life tenure. Instead, one constraining and fundamental feature of our democratic judicial system16 16.See Judith Resnik, Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure, 26 Cardozo L. Rev. 579, 590 (2005) (“[B]eing a judge within democratic governments ought to entail a set of practices distinct from that of judging in nondemocratic polities.”).Show More is that every party is guaranteed process.17 17.U.S. Const. amend. V.Show More But process takes time. When protracted judicial process converges with elections, the result is political mootness. As the parties in interest to litigation change, their political interests no longer align with the legal interests they sought to vindicate.

To understand the role adjudication plays in apex litigation, we must understand what it means for Congress to choose to go to court. Through a series of original interviews with individuals who conducted the investigation for the House Select Committee to Investigate the Attack on the Capitol (“the Committee”), Part II examines their investigatory strategy and legal decision-making.18 18.I set out to understand the Select Committee’s investigative and legal decision-making and how, in particular, that decision-making was informed by the timeline of the investigation. I spoke with senior staffers who had worked for the Committee. Some individuals’ roles were exclusively for the Committee, others served broader roles in the House and had the Committee within their portfolios. Most individuals served in a legal capacity. I also spoke with senior staffers with experience in the Senate to understand the similarities and differences between House and Senate investigations and litigation. I recognize that the pool of individuals—generally related to the Committee’s work, serving in a legal role, and willing to speak with me—may suffer from selection bias. Although I used semi-structured interviews, I make no claims about interview design or comprehensiveness. I include them to add some context from congressional decision-makers, a contingent that is not often heard from directly in legal scholarship concerning the separation of powers. Cf. David E. Pozen, The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information, 127 Harv. L. Rev. 512, 520 n.21 (2013) (using interviews with sources inside the executive branch to add “texture” to an analysis of governmental leaks). I also assured the individuals anonymity.Show More Through these interviews, Part II shows that, first, familiar words like “subpoena” and “contempt” do not have the same meaning within Congress as they do in federal court. Second, there is a widespread use of so-called “friendly subpoenas” in congressional investigations. These are subpoenas that are requested by putative witnesses for legal, political, or social cover. On the outside, these subpoenas look no different from subpoenas of truly recalcitrant witnesses. But this means that the House is not as aggressive with its power as it appears to outside observers. Indeed, Part II further shows that the House self-constrains its authority in part because of the specter of political mootness. These interviews show some evidence of the structural disadvantage the House suffers from in disputes with the executive. They demonstrate the House’s need for an ally to back its use of power. But these interviews also show how recalcitrant witnesses can use courts and legal process (or the mere threat of them) to run out the clock on a congressional investigation.

With this richer understanding of what happens outside, before, and during apex litigation, Part III turns back to political mootness and what it means for the role of adjudication in apex disputes. Focusing on the special problem of separation-of-powers settlements, Part III argues that courts engage in neither law declaration nor dispute resolution when they are called on to adjudicate apex disputes. Rather than dismissing these cases as outside of the judicial role, Part III calls for recasting the role that courts play as a participant in tripartite constitutional dialogue and reframes the legal outputs of these cases in terms of constitutional dialogue. Part IV turns to the normative, arguing that within the frame of dialogue, some aspects of political mootness are desirable. But political mootness is also subject to abuse. Part IV suggests some ways to address its shortcomings, while capitalizing on its advantages.

Structural constitutional scholarship is in need of a conceptual frame and vocabulary to discuss structural constitutional litigation between the three branches of government. That conceptual frame cannot be sheared of its politics. Political mootness is one conceptual structure that helps us better understand the modern fractures, allocations, and distribution of power between our three branches of government.

  1. ** This Article draws in part on interviews conducted by the author with confidential sources. Out of respect to the confidential nature of these interviews, and to preserve promises of anonymity made to sources, the Virginia Law Review did not independently verify the content of these interviews. Representations concerning the substance of these interviews are the sole responsibility of the author. ↑
  2.  Mark Tushnet, Constitutional Hardball, 37 J. Marshall L. Rev. 523, 523 (2004) (naming the phenomenon where “political claims and practices—legislative and executive initiatives—that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with existing pre-constitutional understandings”). ↑
  3.  See generally Eric A. Posner & Adrian Vermeule, Constitutional Showdowns, 156 U. Pa. L. Rev. 991, 991 (2008) (“Showdowns occur between the President and the courts, between Congress and the courts, as well as between the President and Congress. Indeed, some showdowns involve all three branches simultaneously, or threaten to do so.”). ↑
  4.  See Matthew Callahan & Reuben Fischer-Baum, Where the Trump Administration Is Thwarting House Oversight, Wash. Post (Oct. 11, 2019), https://www.washingtonpost.com/gr‌aphics/2019/politics/trump-blocking-congress (cataloguing Trump Administration refusals to comply with congressional subpoenas). ↑
  5.  See infra Part I. ↑
  6.  See infra Part II. ↑
  7.  See Aziz Z. Huq, Legal or Political Checks on Apex Criminality: An Essay on Constitutional Design, 65 UCLA L. Rev. 1506, 1511–14 (2018) (embracing the looseness of the term “apex criminality” to describe offenses committed by high-level officials). ↑
  8.  I exclude suits where government actors are not parties on both sides of the litigation, which would include challenges over whether congressional legislation impermissibly infringes on executive power. I draw this line because federal courts operate differently when adjudicating disputes between branches as parties to litigation. See Z. Payvand Ahdout, Separation-of-Powers Avoidance, 132 Yale L.J. 2360, 2363, 2365–66 (2023). ↑
  9.  See, e.g., Cristina M. Rodríguez, The Supreme Court, 2020 Term—Foreword: Regime Change, 135 Harv. L. Rev. 1, 4 (2021); Michael R. Dreeben, Stare Decisis in the Office of the Solicitor General, 130 Yale L.J.F. 541, 552 (2021); Margaret H. Lemos & Deborah A. Widiss, The Solicitor General, Consistency, and Credibility, 100 Notre Dame L. Rev. 621, 623–24 (2025) (examining multiple explanations for the Solicitor General’s changes in positions). ↑
  10.  Zachary D. Clopton & Katherine Shaw, Public Law Litigation and Electoral Time, 2023 Wis. L. Rev. 1513, 1514. ↑
  11.  See, e.g., Yellen v. U.S. House of Representatives, 142 S. Ct. 332 (2021) (vacating as legally moot the dispute over border wall funding initiated by the House during the first Trump Administration); Petition for a Writ of Certiorari at 11, Yellen, 142 S. Ct. 332 (No. 20-1738) (“Following the change in Administration, and consistent with the President’s discretion that ‘no more American taxpayer dollars be diverted to construct a border wall,’ [the Department of Defense] has canceled all border-wall projects and discontinued using any of the challenged funds for any further construction.” (quoting Proclamation No. 10142, 86 Fed. Reg. 7225 (Jan. 27, 2021))). ↑
  12.  This has one qualified exception. See infra Section I.B. ↑
  13.  See U.S. House of Representatives v. Burwell, 130 F. Supp. 3d 53, 63 (D.D.C. 2015). ↑
  14.  See Comm. on the Judiciary, U.S. House of Representatives v. McGahn, 415 F. Supp. 3d 148, 153 (D.D.C. 2019). ↑
  15.  See, e.g., James D. Zirin, Can Trump Conceivably Beat the Legal Clock—and the Rap?, The Hill (Oct. 9, 2023, 1:30 PM), https://thehill.com/opinion/judiciary/4244738-can-trump-c‌onceivably-beat-the-legal-clock-and-the-rap/ [https://perma.cc/LC75-KFQT] (“The D.C. claim of presidential immunity is unlikely to win dismissal of the case, but it may succeed in delaying his D.C. trial, now scheduled for March 4, to a date known only in Neverland.”); David A. Graham, The Cases Against Trump: A Guide, The Atlantic (Jan. 6, 2025), https://ww‌w.theatlantic.com/ideas/archive/2025/01/donald-trump-legal-cases-charges/675531. ↑
  16.  1 Jack Smith, Final Report on the Special Counsel’s Investigations and Prosecutions 1 (2025), https://www.justice.gov/storage/Report-of-Special-Counsel-Smith-Volume-1-Januar‌y-2025.pdf [https://perma.cc/3UAE-553F]. ↑
  17.  See Judith Resnik, Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure, 26 Cardozo L. Rev. 579, 590 (2005) (“[B]eing a judge within democratic governments ought to entail a set of practices distinct from that of judging in nondemocratic polities.”). ↑
  18.  U.S. Const. amend. V. ↑

  19.  I set out to understand the Select Committee’s investigative and legal decision-making and how, in particular, that decision-making was informed by the timeline of the investigation. I spoke with senior staffers who had worked for the Committee. Some individuals’ roles were exclusively for the Committee, others served broader roles in the House and had the Committee within their portfolios. Most individuals served in a legal capacity. I also spoke with senior staffers with experience in the Senate to understand the similarities and differences between House and Senate investigations and litigation. I recognize that the pool of individuals—generally related to the Committee’s work, serving in a legal role, and willing to speak with me—may suffer from selection bias. Although I used semi-structured interviews, I make no claims about interview design or comprehensiveness. I include them to add some context from congressional decision-makers, a contingent that is not often heard from directly in legal scholarship concerning the separation of powers. Cf. David E. Pozen, The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information, 127 Harv. L. Rev. 512, 520 n.21 (2013) (using interviews with sources inside the executive branch to add “texture” to an analysis of governmental leaks). I also assured the individuals anonymity. ↑

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