Document Type
Article
Publication Date
2026
Publication
Duke Law Journal Online
Volume
75
Abbreviation
Duke L.J. Online
First Page
79
Abstract
This Essay critiques the Supreme Court’s emerging “history and tradition” methodology, as articulated in Dobbs v. Jackson Women’s Health Organization, arguing that its reliance on affirmative textual recognition in historical positive law fundamentally misrepresents the nature of American liberty traditions. By insisting that unenumerated rights are constitutionally cognizable only when earlier legal sources explicitly identified them as rights, the Court adopts a truncated evidentiary framework that privileges written enactments while disregarding lived experience, social practice, and the normative assumptions that shaped earlier understandings of permissible state power. The result, the Essay contends, is a mechanized and impoverished account of tradition—one that excludes longstanding patterns of nonregulation and tacit social expectations that historically structured Americans’ experiences of “ordered liberty.” In doing so, the Court transforms historical inquiry into a narrow search for formal legal recognition, thereby distorting the very past it purports to honor.
The Essay further argues that a proper account of “ordered liberty” must reckon with the dynamic relationship between individual rights and civic obligations, which historically coexisted and evolved over time. By ignoring the role of socially constructed duties—such as jury service, militia participation, and other forms of compelled public contribution—the Court obscures how shifting conceptions of obligation have continuously redefined the scope of personal freedom. This failure is compounded by the Court’s refusal to consider uncodified beliefs about intolerable forms of coercion, as well as its inability to account for the evolving emergence, transformation, or disappearance of civic duties. Ultimately, the Essay concludes that Dobbs achieves doctrinal simplicity only by flattening historical complexity, producing a version of traditionalism that is administrable but deeply ahistorical, and that risks foreclosing constitutional protections against forms of state power that earlier generations would never have accepted.