Reckoning with Antisemitism in History and Tradition

Abstract

“History and tradition” has become a watchword of modern constitutional interpretation, shaping Supreme Court jurisprudence and framing ongoing debates over the meaning of the Fourteenth Amendment. Yet this interpretive framework remains under-theorized in one critical respect: how should it grapple with the prejudices embedded in the very traditions it invokes? This Article examines that question through the lens of anti-Jewish discrimination in Anglo-American law, using this history as a case study to examine both the perils and promise of relying on history as a source of constitutional authority. For centuries, the common law excluded Jews from full civic participation in both England and the United States, limiting their access to the courts, their ownership of property, and their exercise of political rights. And though largely forgotten today, this legacy reveals a troubling methodological gap that currently exists in the history-and-tradition approach: its lack of a systematic way to reckon with antisemitism and other morally compromised aspects of history. Indeed, taken to its logical extreme, the history-and-tradition method would appear to permit the re-enactment of such exclusion today. Yet this Article does not counsel retreat from the past. Instead, it argues that principled engagement with history is both possible and essential—and suggests a framework for doing so. Courts, in considering Anglo-American traditions, should be guided by the Enlightenment values that animated the Founding—including liberty, equality, freedom of conscience, and the rejection of inherited hierarchy—and should privilege those strands of history that reflect these commitments. Although the Founders’ moral compass was at best imperfect and their actions at times fell tragically short of their ideals, the history-and-tradition method should seek not to rehearse the past uncritically, but to draw from it those principles that best express the nation’s enduring aspirations. Not only is such an approach deeply consonant with the history-and-tradition method and legitimated by recent jurisprudence, but it also fulfills the higher purpose of upholding both the Constitution and the visionary ideals that brought it into being.