In the post-Dobbs world, concerns over the Courts’ growing use of “history and tradition” as an interpretative tool and as a constitutional test, particular its invocation in ways that reinforce inequality, have reached an unprecedented high, and with good reason. One of the latest examples is the Supreme Court’s adoption of historical practice as a central interpretative mode in its 2025 birthright citizenship case, Trump v. CASA, which imposes limits on lower-courts’ ability to enter preliminary injunctions and opens up the possibility of discriminatory legal measures being blocked for some but enforced against others, including those in marginalized communities who lack resources to legally challenge them.
Joining a growing body of legal scholars addressing “history and tradition’s equality problem,” Rachel Bayefsky has now made a timely feminist intervention that brings conceptual clarity, methodological rigor, hope for change, and a persuasive appeal to both liberals and conservatives to move beyond the adversarial relationship between tradition and equality.1 In a world of intensified polarizations, Bayefsky’s constructive and philosophically nuanced engagement with traditionalists is especially commendable. Her proposed theory of dialectical traditionalism2 reconciles the tensions between traditionalism and feminism by providing a framework for adjudicators to engage with traditionalist reasoning without replicating and justifying the unequal past, regardless of whether they identify as “traditionalists.”3 A recent study examining the role of history and tradition in state court abortion decisions supports Bayefsky’s hope, as some of these courts have adopted a critical approach to history and tradition in protecting reproductive rights.
Refusing to argue in support of any variant of originalism while also refraining from abandoning traditionalism, Bayefsky begins her argument by challenging an essentialist view of tradition and criticizing the idea that reasoning based on history and tradition is simply a value-neutral and descriptive fact-finding practice. Instead, she proposes a critical definition of tradition as “networks of enduring practices and understanding,” characterized by duration and continuity and change. This definition encompasses cultural and legal sources of law, and constitutes a collective life and memory in which participants are agents capable of engaging in interpretation, reinterpretation, and revision. This anti-essentialist and organic view of tradition leads to her distinct form of traditionalism: “dialectical traditionalism,” a form which allows tradition to evolve without forfeiting its instructive power. Dialectical traditionalism is dialectical in the Hegelian sense: past practices can be acknowledged as incomplete and reshaped into present ones without losing all of their force; the past and present can be reconciliated without fully resolving the tension between them. (P. 22 n.136.)
Defining and assessing tradition, therefore, necessarily entails a normative judgment and a moral choice, resulting in the choice of either of tradition’s dual roles: as a positive source supporting the legitimacy of a constitutional right or the constitutionality of a government regulation (e.g., traditions of feminist activism as positive precedent), or as a negative source underscoring the problems of the past – that is, the use of tradition as a “negative precedent” (a record of past wrongs to be remedied as the nation strives to define itself) that renders the reliance interest tainted and therefore invalid.
Bayefsky further claims that a traditionalist argument can, at times, take the form of a genealogical critique – “identifying the problematic historical roots of a practice, or disturbing historical cognates, to reject the practice’s current manifestations.” (P. 46.) This critique may even proceed to identify similarities between injustice in the past and in the present, as there may be no clean break between the bad old days and good modern days, an insight that echoes Reva Siegel’s “preservation through transformation” thesis.
Why is it beneficial for adjudicators to adopt a dialectical traditionalist approach? Bayefsky identifies four normative rationales: concrete experience, reliance, democracy, and national identity, each of which may carry a different kind of appeal to different audiences. She intends to bring both traditionalists and feminists on board: to have traditionalists endorse feminism and feminists embrace traditionalism. Feminists, particularly those grounded in standpoint theory, may find dialectical traditionalism appealing because it values the experiences of subordinated groups who live out the realities of social subordination and imagines ways to incorporate their perspectives into democratic processes and the ongoing construction of national identity. Dialectical traditionalism may also attract feminists insofar as it invites members of the polity to engage in a critical recommitment to the past: preserving historical practices and understandings deemed morally justified (such as advancements in women’s rights) or morally neutral (such as single-sex education), while repudiating those deemed morally indefensible (such as the doctrine of chastisement). Traditionalists, on the other hand, may be persuaded to accept dialectical traditionalism because it underscores “facts on the ground,” promotes stability, allows more room for majoritarianism and the public will, and bolsters the stability of the American polity by connecting the present and future with the past.
For adjudicators who find Bayefsky’s ideas of dialectical traditionalism persuasive, how might they put them into practice? Bayefsky offers several guidelines, including diversifying the sources of tradition to include both formal law and non-legal sources, and valuing continuity while remaining open to change. As for dealing with the indeterminacy question (the selection of influential traditions and the choice between traditionalism or other modalities), she suggests that two sets of criteria (objective and value) are both important and emphasizes the pluralist nature of dialectical traditionalism. One of the hypothetical positive outcomes of dialectical traditionalism she provides involves Geduldig v. Aiello, a case in which the Court upheld a California disability insurance scheme that excluded pregnancy-related conditions on the ground that classifications based on pregnancy were not inherently sex-based. Had the Geduldig Court embraced dialectical traditionalism, its formalist reasoning, which refused to consider pregnancy discrimination as sex discrimination, might not have prevailed, as traditionalism would have provided a basis for recognizing the historical association between gender and pregnancy. In this respect, dialectical traditionalism adds important conceptual heft to critiques of Geduldig that have decried its sex equality “logic” on the basis of a less rigorous notion of “common sense.”
Bayefsky’s assumed readership also includes equality advocates, given her aim of exploring tradition’s potential constitutional role in advancing women’s and others’ equality rights. Her advice is to “refer to American traditions in general” and “draw on histories of women’s rights activism in particular.” (P. 48.) One of her persuasive strategies, which also demonstrates of the pragmatic benefits of traditionalism, is to find a silver lining wherever possible, including in cases where the Court celebrated marriage and endorsed the masculine standard.
There is more to this bid than it might initially seem. I myself remain unpersuaded by the view of marriage articulated in Griswold, Loving, and Obergefell, where the Court considered marriage as sacred, fundamental to people’s existence, and the keystone of the social order. Nor do I appreciate Justice Ginsburg’s approval of the Virginia Military Institute’s use of the masculinist adversative method in the VMI case. Nevertheless, Bayefsky’s analysis invites a reassessment of whether the Court’s embrace of tradition in these cases may have practically advanced the cause of equality by tempering the resentment of those inclined to disagree and broadening support among moderates, thereby enhancing the legitimacy of judicial opinions. She also notes that three Justices in the majority of Griswold were also in the majority of Eisenstadt, suggesting the possibility of endorsing marital privacy while simultaneously valuing individual autonomy.
On this note, I cannot help but recall the collaboration among feminist lawyers and historians in filing an amicus curie brief in Webster v. Reproductive Health Services, a case that upheld a Missouri statute restricting abortion. Concerned about the Court’s potential deployment of “our history and traditions” to constrain women’s reproductive rights, the amicus brief contested Missouri’s claim of a long-standing and consistent tradition of states criminalizing abortion, and instead demonstrated that abortion was lawful and widely accepted for much of the nation’s history. Although the Webster Court did not cite the brief or adopt its positions, it nevertheless refrained from relying on history and tradition as the basis for its reasoning in support of Missouri’s restrictions on abortion. Sylvia Law, the architect of this interdisciplinary collaborative brief, considered its modest objective to have been achieved, as it had “precluded the Court from using history in a shallow and determinate way.” From an advocate’s perspective, the pragmatic value of a traditionalist approach may also reside in its capacity to facilitate reasoning such that judicial outcomes adverse to equality are not justified by history and tradition, precisely because courts may regard such reasoning as too indeterminate to sustain. At best, the Court might embrace dialectical traditionalism when reasoning from history and tradition; at the least, the Court might avoid turning “bad” history into constitutional doctrine.
Bayefsky’s treatment of the constitutional fidelity question resonates with Catharine A. MacKinnon’s views on the same subject even as their perspectives on moral reasoning diverge. Arguing against what she describes as a “top-down” style of moral reading which asks questions about good or bad, right or wrong, rather than about equality, MacKinnon claims to practice constitutional fidelity by adopting a “bottom-up” approach to interpreting equality under the Constitution. As she sees it, such an approach to equality’s meaning is thick with social reality, because the Constitution prohibits inequality, not immorality. “Count me an adulterer,” she said, if constitutional fidelity means a moral reading of equality, which knows only what power has already been compelled to yield – that is, a reading of the Constitution incapable of seeing inequality until the law has already condemned it as such. While MacKinnon declines the invitation to theorize and interpret morally, Bayefsky, who does not disapprove of the position of a moral reader, has demonstrated that, under the dialectical traditionalist model, tradition’s power to bind a community over time not only demands the inclusion of concrete experience, but also, paradoxically, calls for a measure of flexibility, which bears the potential of identifying what power has not yet been brought to concede.
Bayefsky has persuasively advanced a theory of history and tradition for the American people that promotes equality for all. I, as an outsider to “We the People,” also wonder whether the practice of dialectical traditionalism could extend to engaging with the traditions of “the Other” in ways that would avoid the trap of legal Orientalism. Anti-abortion advocates have long deployed claims concerning alleged backward Asian cultural traditions of son preference to advance sex-selective abortion bans, despite criticism and objections from scholars and advocates, including AAPI women. Justice Thomas’s concurrence in Box v. Planned Parenthood also identified sex-selective abortions as among the contemporary practices he characterized as “a tool of modern-day eugenics,” a claim that has been subject to extensive rebuttal. For a theory of history and tradition to claim the power for change that Bayefsky imagines, future adjudications informed by dialectical traditionalism should endeavor to critically de-essentialize Asian traditions in a manner that promotes equality, freedom, and justice, rather than hindering them.
- Bayefsky cautiously noted that, while the main subject of her article is tradition and women’s rights, its analytical framework can be applied to cases involving other forms of inequality. (P. 6.)
- Other scholars have developed alternative brands of traditionalism to address history and tradition’s equality problem. Dov Fox and Mary Ziegler’s idea of “evolving traditionalism,” reviewed on JOTWELL, is one.
- Some feminists and other equality advocates might be sympathetic to Bayefsky’s proposal yet remain hesitant to identify themselves as traditionalists. I confess my reluctance to embrace the label traditionalist – a term tinged with conservative overtones – despite my identity as a feminist legal historian who finds it not only preferable but also paramount to look backward, engaging with tradition critically and inclusively and paying special attention to reinvented histories and counter-traditions, in order to move forward.
