In the last decade, the Supreme Court increasingly has declared that constitutional interpretation should be controlled by tradition and history. Most importantly, the Court has ruled that rights should not be judicially protected under the Constitution unless there is a tradition of protection. Professor Chemerinsky describes this trend and accounts for its origins. He then argues that this heavy emphasis on history and tradition in constitutional interpretation fails to provide the desired constraint on judicial discretion and is undesirable as a method of analysis.
History, Tradition, the Supreme Court, and the First Amendment,
44 Hastings L.J. 901
Available at: https://repository.uchastings.edu/hastings_law_journal/vol44/iss4/7