Rachel Bayefsky on Wolford and the Problem of Tainted Traditions

[This post is by Rachel Bayefsky, Associate Professor of Law at the University of Virginia.]

The Supreme Court’s turn to “history and tradition” raises the critical question of what to do about “bad traditions.” If the customs of yore were driven by racial prejudice, for example, what weight should they carry in interpreting the Constitution? In the Second Amendment case Wolford v. Lopez, the Court confronted this question. Justice Alito’s majority, Justice Barrett’s concurrence, and Justice Jackson’s dissent offered divergent responses. The back-and-forth brought the problem of bad traditions into sharp relief and highlighted the uneasy place of moral evaluation in traditionalist analysis.

In Wolford, a Hawaii law banned people carrying firearms from entering, without express authorization, private property open to the public. The Court, after determining that Hawaii’s restriction fell within the text of the Second Amendment, asked whether Hawaii’s law was consistent with the historical tradition of firearm regulation. One historical analogue Hawaii invoked was an 1865 Louisiana statute making it unlawful “for any person or persons to carry fire-arms on the premises or plantations of any citizen, without the consent of the owner or proprietor, other than in lawful discharge of a civil or military order.”

The Supreme Court rejected the Louisiana statute as a historical analogue, partly because it was part of Louisiana’s Black Code, a series of statutes adopted to subjugate Black people after the Civil War. According to the Court, the congressional Republicans who adopted the Fourteenth Amendment understood that “the right to keep and bear arms was crucially important for vulnerable blacks during this period.” “Unless we put history entirely out of our minds,” the Court indicated, “Hawaii’s claim that this tainted artifact [the Louisiana statute] illuminates the original understanding of the right to keep and bear arms cannot be taken seriously.”

The Court has previously encountered the problem of tainted traditions. It has, for instance, pointed to the racist origins of non-unanimous juries in a decision invalidating that practice for serious criminal cases and has suggested that some traditions barring state support for religious schools should not shape interpretation of the Free Exercise Clause because they were rooted in anti-Catholic bigotry.

But why exactly should moral taint undermine a tradition’s constitutional significance? Supporters of history-and-tradition analysis frequently portray their method as an alternative to decisions based on judges’ moral or policy views. If traditions can be discounted based on their sordid origins, does traditionalism lose a key justification?

The Wolford majority’s explanation of why taint mattered was sparse, but the Court gestured at the view that taint bears on original public meaning. In the majority’s view, it seems, the congressional Republicans responsible for enactment of the Fourteenth Amendment (through which the Second Amendment came to apply to the states) could not have viewed the Black Codes as acceptable regulations of constitutional rights, including Second Amendment rights. Because Louisiana’s law was part of its Black Code, that law could not have been consistent with the understanding of the Second Amendment that governed when the amendment was made applicable to the states.

If this was the majority’s reasoning, then it involved fairly elastic inferences about original public meaning. Can we conclude from the Republican Congress’s general interest in protecting Black people’s rights—including their Second Amendment rights—that the specific restrictions on firearms instituted as part of Louisiana’s Black Code were inconsistent with the original public meaning of the Second Amendment as incorporated by the Fourteenth? Justice Jackson’s dissent raised a version of this objection (addressed below).

A fuller explanation of taint’s constitutional relevance appeared in Justice Barrett’s concurrence (joined in relevant part by Justices Thomas and Gorsuch). For a historical law to be analogous to modern-day firearm regulation, the Court has held, the provisions must be similar in “how” and “why” they restricted firearms. Why, Justice Barrett inquired, did Louisiana’s law restrict the carrying of firearms on private property? The state sought to limit freed Black people’s ability to hunt and provide for themselves without working on white-owned plantations. Hawaii’s current law clearly does not share that “why,” so the Louisiana law is not analogous.

Justice Barrett’s approach provided a coherent conceptual link between taint and the identification of relevant analogues. However, it is subject to the level-of-generality problem that often bedevils traditionalist analysis. At what level of generality is the “why” to be assessed? As Justice Jackson’s dissent observed, the “why” behind Louisiana’s law could also be described (at a higher level of generality) as an effort “to protect property rights and to prevent the harms that can follow from unauthorized armed entry.” Asking whether the justification for an old law matches the justification for a new law requires judges to decide how broadly the “why” should be framed. Justice Barrett’s approach also runs into the problem of multiple motivations: What if Louisiana’s legislature had sought both to oppress Black people and to protect public safety? There might then be a partial match in justification between the Louisiana law and Hawaii’s, and it is not clear that such an analogy should be completely repudiated.

Justice Jackson’s dissent (joined by Justice Sotomayor) critiqued the taint argument along related lines. The majority had not explained, she argued, why the tainted origins of Louisiana’s law affected the Second Amendment analysis, as distinct from simply demonstrating Louisiana’s violation of the Fourteenth Amendment’s equality requirements.

Insofar as taint is understood to bear on original public meaning—that is, to nullify Black Codes as evidence of original public meaning—Justice Jackson’s critique is persuasive. After all, perhaps Louisiana and other states sought to oppress Black people using a tool recognized at the time as an appropriate regulation of firearms. In that case, racist taint would not invalidate these laws as probative of the original public meaning of the Second Amendment.

But the taint argument may not truly be geared toward original public meaning. The real appeal of the taint argument may be more visceral—that it is wrong for American constitutional law to treat provisions driven by immoral views as affirmative indications of permissible government regulation. The Wolford opinions raise the important question of whether rejecting racially tainted provisions as legally probative is more or less redemptive in the sense of affirming current commitments to racial equality. Justice Jackson, for her part, seemed to suggest that wholly excising tainted laws from our tradition is less inclusive, as it fails to “value[] the historical experiences of Black people as targets of invidious race discrimination.”

Wolford leaves open many questions about how taint figures into history-and-tradition analysis. The immoral origins of the Black Codes are clear, but in some cases judges will face harder calls about the existence of taint and the correct moral judgment. Most of all, does the introduction of moral evaluation undercut history-and-tradition methodology?

In my view, the answer is no. Courts can employ a form of traditionalism that permits present-day moral ideas to affect the identification of relevant traditions. The moral ideas in question need not be derived from judges’ idiosyncratic preferences. Instead, they can be pegged to society-wide commitments, particularly those enshrined in constitutional provisions such as the Fourteenth Amendment. These equality commitments are part of American tradition. (I explore these points at much greater length in a recently published article.)

And these equality commitments display much greater continuity into the present day than the values embodied in the Black Codes. Continuity is a key measure of a tradition’s strength, because a tradition links past and present and extends into the future. Accordingly, racially tainted laws such as the Black Codes have a weaker claim to be part of a cognizable tradition.

Morally tainted practices, when they lack continuity, could thus be discounted for reasons internal to tradition itself. Odious history would not be ignored, and when past laws were driven by multiple forces, they would not need to be discounted in their entirety. But taint would reduce a practice’s claim to illuminate the contents of constitutional tradition today. Overall, the opinions in Wolford did not resolve the problem of bad traditions, but they pointed the way toward forms of traditionalist analysis that acknowledge the relevance of moral concerns.