Custom's Ghost

Modern jurisprudence increasingly leans on a ghost story. Through originalism and history-and-tradition tests, the Supreme Court frequently anchors contemporary rights to what the earliest generations of Americans supposedly understood, or to post-ratification practices that supposedly defined our traditions.

This turns robes into historian's gowns, though rarely with professional competence. Critics point out that these historical inquiries often rely on arbitrarily selected statutes or handpicked dictionaries to prop up modern legal conclusions. Judges are pushed to perform historical fact-finding that runs entirely counter to actual historical methodology, hunting desperately for specific legal analogues that may simply not exist in the past.

The result is a strange form of ventriloquism. Jurists project modern legal assumptions backward, inadvertently rewriting the eighteenth-century figures they claim to consult. Whether these historical expeditions represent genuine legal philosophy or are merely a convenient rhetorical veneer for predetermined outcomes remains an open question. Either way, the past is being drafted into service to decide the present, leaving us to wonder whether the traditions governing our rights ever actually existed outside the courtroom.