But perhaps not entirely for the reason Holmes would have given.
Justice Oliver Wendell Holmes Jr. once offered a warning about the language of rights that remains remarkably relevant. In American Bank & Trust Co. v. Federal Reserve Bank of Atlanta, Holmes cautioned that the word right could become a “deceptive” trap because lawyers could begin with a limited right and quietly transform it into an unlimited one. His conclusion was concise: “Most rights are qualified” (American Bank & Trust Co. v. Federal Reserve Bank of Atlanta 1921, 358).
The deeper problem may lie in where we believe rights come from. If government is the source of a right, then government necessarily has some authority to define that right. What government creates through positive law, government can ordinarily regulate, modify, qualify, or abolish through positive law, subject to whatever higher legal restraints the political system has imposed upon itself.
Natural rights make a fundamentally different claim.
A natural right is not something government gives us. Government may recognize it. Government may protect it. Government may regulate conduct occurring around it. Government may even violate it. But if the right is truly natural, government did not create it and therefore cannot make the underlying right cease to exist simply by changing the law.
That distinction places Holmes in an illuminating conversation with two modern defenders of natural rights: John Finnis in jurisprudence and Randy Barnett in American constitutional theory. Holmes helps us see the vulnerability of legal rights once their content depends upon the state. Finnis and Barnett help explain why rights grounded somewhere beyond the state occupy a different and, I would argue, superior position.
Holmes Was Right About Qualified Rights
The dispute in American Bank & Trust involved the Federal Reserve Bank of Atlanta and smaller Georgia banks. The Federal Reserve Bank claimed a right to present checks for payment. Holmes accepted that such a right existed but rejected the conclusion that possessing that right necessarily authorized every possible manner of exercising it (American Bank & Trust Co. v. Federal Reserve Bank of Atlanta 1921, 358–59).
Holmes used a memorable analogy. A person plainly has a right to give away his own money. Yet giving money to induce someone to commit a crime does not become lawful merely because the giver owns the money (American Bank & Trust Co. v. Federal Reserve Bank of Atlanta 1921, 358).
The point is difficult to dispute.
Saying that I possess a right does not necessarily answer every question about what I may do under the banner of that right.
But Holmes’s jurisprudence pushes the question one step further: Who determines the qualification?
Holmes was deeply skeptical of natural-law reasoning as a source of judicially discoverable legal principles. His jurisprudence helped mark a departure from the older American tradition in which natural law could supply part of the moral architecture of the common law. Andrew Forsyth describes Holmes and the legal realists as breaking from the natural-law tradition and increasingly locating law in actual institutional decisions, social practices, and the exercise of governmental power rather than in a coherent body of antecedent moral principles (Forsyth 2019, 125–45).
That shift matters enormously.
If the state is ultimately responsible for defining what counts as a legal right, the statement that “most rights are qualified” acquires an additional meaning. Rights are qualified because the legal authority that recognizes them also defines their boundaries.
And whatever legal authority can define, it can potentially redefine.
The Problem with a Right Government Gives You
Suppose a legislature creates a statutory entitlement to a particular government benefit.
That entitlement is certainly a legal right while the statute remains in force. Courts may enforce it. Officials may be legally required to honor it. A citizen may properly say, “I have a right to this benefit.”
But the legislature that created the program may generally amend the statute. A later legislature may alter eligibility requirements. It may reduce the benefit. It may replace the program. It may abolish it altogether, provided that doing so complies with other controlling law.
The reason is straightforward.
The right depends for its existence upon positive law.
Constitutional rights are considerably more difficult to alter because ordinary legislation is subordinate to constitutional law. Yet even here the distinction between the legal recognition of a right and the source of the right itself becomes important. A constitutional provision is positive law and may ordinarily be altered only through the constitutional process established for amendment. The natural-rights tradition makes a more radical claim: some rights would continue to exist as moral rights even if a constitution failed to recognize them.
This gives us two very different propositions:
Government has declared that you possess this right.
And:
You possess this right, therefore government is obligated to respect it.
Those sentences may produce the same result when government behaves justly. Jurisprudentially, however, they run in opposite directions.
The first makes government the source.
The second makes government the subject of an obligation.
That difference is the heart of natural-rights theory.
Finnis: Law Does Not Create the Moral Order It Governs
John Finnis provides one of the most important modern accounts of natural law and natural rights. His argument is not that human beings possess an unlimited collection of individual preferences that government must recognize as rights. Finnis instead grounds rights within practical reason, objective human goods, justice, human flourishing, and the common good (Finnis 2011).
For Finnis, positive law performs indispensable work. Human communities need legal institutions to coordinate conduct, establish determinate rules, resolve disputes, and pursue common goods that cannot be secured by isolated individuals acting independently (Finnis 2011). His natural-law theory therefore does not treat government as unnecessary or legal rules as presumptively illegitimate simply because they restrict individual choice.
But positive law does not create the entire moral universe within which it operates.
Finnis argues that natural-law reasoning can ground genuine human rights, including rights whose normative force does not depend simply upon governmental recognition (Finnis 2015, 199–225).
This produces an important distinction for our discussion of Holmes.
Natural rights may still have boundaries.
They are not necessarily absolute permissions to do anything associated with the subject of the right. My right to property does not entail a right to use my property to murder another person. My liberty does not entail a moral entitlement to enslave someone else. The moral order that grounds rights also structures their proper exercise.
So Finnis need not disagree with Holmes that rights are often qualified.
The disagreement concerns something deeper.
Who, or what, supplies the qualification?
For Holmes, legal institutions ultimately determine the operative legal boundary. For Finnis, positive law operates within a moral order that government did not create. Government can specify many of the practical boundaries of legal rights, but government itself remains subject to standards of justice external to its own will (Finnis 2011; Finnis 2015, 199–225).
That changes the meaning of a qualification.
A natural right may be limited because the right itself exists within an objective structure of justice.
That is very different from saying a right is limited merely because government has decided how much of the right its citizens will be permitted to exercise.
Barnett: Rights “Retained,” Not Rights Granted
Randy Barnett brings this argument directly into American constitutional law.
The Ninth Amendment contains one of the most intriguing phrases in the Constitution: it speaks of rights “retained by the people.”
Barnett takes that language seriously.
His account of the Ninth Amendment argues that the Constitution assumes the existence of rights that were not created by their enumeration in the constitutional text. On Barnett’s reading, the people possessed natural rights before the Bill of Rights was adopted, and enumerating some rights was not supposed to diminish the status of those that remained unenumerated (Barnett 2006, 1–82).
The word retained matters.
You cannot retain something that you never possessed.
The constitutional language therefore fits naturally with a theory in which government does not grant all rights to the people. Instead, people enter political society already possessing rights, while constitutional government receives powers.
That reverses the usual modern assumption.
Under the government-as-source model:
Government possesses authority and grants citizens certain protected rights.
Under the natural-rights model:
People possess rights and grant government certain limited powers.
Barnett builds much of his constitutional theory around that distinction. In Restoring the Lost Constitution, he argues for a “presumption of liberty” in which government bears a substantial burden when it restricts the rightful exercise of individual liberty. His theory connects constitutional legitimacy to the protection of rights retained by individuals rather than treating individual freedom as merely the remainder left after government has exercised its powers (Barnett 2013).
This provides the American constitutional counterpart to Finnis’s jurisprudential argument.
Finnis asks why rights bind government at all.
Barnett asks what the Constitution should look like if we take seriously the proposition that people possess rights before government acts.
Natural Rights Are Different Because Government Cannot Repeal Their Source
This leads to what I think is the strongest argument for privileging natural rights.
Consider two rights.
The first exists because the legislature enacted Statute A.
The second exists because every human person possesses a moral claim that precedes the state.
The legislature repeals Statute A.
The first right may cease to exist.
Now suppose the legislature announces that the second right no longer exists.
Something very different has happened.
If natural-rights theory is correct, the legislature has not abolished the right. It has violated it.
That distinction is everything.
A government can repeal a statutory entitlement because the statute constituted the entitlement.
A government cannot repeal a natural right in the same sense because governmental action did not constitute the right in the first place.
Government can refuse to recognize it.
Government can violate it.
Government can punish those who attempt to exercise it.
Government can persuade courts to ignore it.
Government might even construct an entire legal regime contrary to it.
But none of those actions answers the moral question of whether the person still possesses the right.
Finnis’s natural-law jurisprudence provides precisely this possibility of evaluating positive law from a moral standpoint not reducible to the positive law itself (Finnis 2011; Finnis 2015, 199–225).
That is the great advantage of natural rights.
They give us somewhere to stand when government itself is wrong.
The Common Law Once Understood This Relationship Better
There is an important historical dimension to this argument.
American law did not always draw a sharp boundary between positive law and natural law. Andrew Forsyth’s history of American common law shows that jurists such as Joseph Story could understand natural law as supplying principles, duties, rights, and limits while common-law doctrine gave those principles increasingly specific legal form (Forsyth 2019, 70–104).
Over time, natural law became less explicit in American legal reasoning. It was increasingly absorbed into common-law doctrine and later challenged by intellectual movements that emphasized law as a product of human institutions rather than an expression of an objective moral order (Forsyth 2019, 70–145).
Holmes stands near the far end of that transition.
This is why placing Holmes beside Finnis is so revealing.
Holmes says: Most rights are qualified.
Finnis can answer: Of course. But government is not necessarily the source of either the right or its ultimate moral limits.
Barnett can then add an American constitutional response: The Constitution itself speaks of rights the people “retain,” suggesting that at least some rights are conceptually prior to governmental enumeration (Barnett 2006, 1–82).
The debate therefore is not really between people who believe rights have limits and people who believe rights are unlimited.
That would be too simple.
The important debate concerns the source of the right and the source of its limits.
Natural Rights Can Be Qualified Without Becoming Government Rights
This qualification is essential to the argument.
If I simply say, “Natural rights are absolute, while government rights are qualified,” I create a claim that is difficult to defend.
Natural rights themselves may be structured by duties owed to other persons, competing rights, justice, and the common good. Finnis certainly does not understand natural rights as limitless individual permissions detached from moral obligation (Finnis 2011).
The stronger proposition is this:
Natural rights are superior to government-created rights not because they are necessarily unlimited, but because their normative existence does not depend upon the government that is being asked to respect them.
That distinction allows us to agree with Holmes without surrendering the natural-rights tradition.
Yes, most rights may be qualified.
But qualification raises a second question that Holmes’s sentence does not answer:
Qualified by what?
If the answer is merely “whatever government decides,” then the right ultimately rests on governmental permission.
If the answer is that a right is bounded by the equal dignity and rights of others, by principles of justice, by the nature of the good being protected, or by requirements of the common good, then the qualification may arise from the same moral order that generated the right in the first place.
Those are profoundly different conceptions of a right.
The Difference Between a Right and a Permission
This brings us to the practical danger of locating the source of rights exclusively in government.
If government gives me liberty today and may withdraw it tomorrow whenever the proper political procedures have been followed, it becomes difficult to explain why I possessed a right rather than a particularly secure governmental permission.
Natural-rights theory provides an answer.
A right is capable of standing against the state precisely because its moral authority does not depend entirely upon the state.
Barnett expresses this insight constitutionally through rights “retained by the people” and his presumption of liberty (Barnett 2006, 1–82; Barnett 2013).
Finnis expresses it jurisprudentially by locating human rights within an account of practical reason and human good that allows positive law itself to be evaluated according to standards of justice (Finnis 2011; Finnis 2015, 199–225).
Holmes reminds us that rights require boundaries.
Finnis and Barnett remind us that government need not be the author of everything it is obligated to respect.
And that may be the most important distinction of all.
Holmes Was Right, but Natural Rights Matter Because He Was Right
Holmes’s statement that “most rights are qualified” can initially sound like an argument against strong conceptions of individual rights.
I think it can point in the opposite direction.
Precisely because positive legal rights can be qualified, altered, and sometimes withdrawn by the legal institutions that define them, we have reason to ask whether there are rights whose authority does not originate in those institutions.
Natural-rights theory answers yes.
That does not mean natural rights have no limits. It means their existence does not depend upon legislative generosity, administrative discretion, or even constitutional enumeration.
The distinction can be stated simply:
A government-created right exists because the law gives it to us. A natural right makes a claim upon the law because we possess it already.
That is why the source of rights matters.
If government is the source of a right, then government possesses an extraordinary degree of authority over its definition.
If the right precedes government, the relationship reverses.
The question is no longer simply, What rights has government decided to give us?
The question becomes, What rights must a just government recognize because they were never government’s to give away in the first place?
Holmes helps us see why rights are often qualified.
Finnis and Barnett help us see why some rights must stand on firmer ground.
Brandon L. Blankenship is an assistant professor, continuing legal education presenter, and business educator. He and his wife Donnalee live on their hobby farm south of Birmingham, Alabama.
We often talk about rights as though the word settles the argument.
“I have a right to do this.”
“You have no right to stop me.”
“The government cannot interfere with my rights.”
But the word right can hide as much as it reveals. More than a century ago, Justice Oliver Wendell Holmes Jr. warned about exactly this problem. In American Bank & Trust Co. v. Federal Reserve Bank of Atlanta, Holmes wrote that the word “right” is “one of the most deceptive of pitfalls” because it is easy to begin with a qualified right and end by treating it as an absolute one. His conclusion was simple: “Most rights are qualified” (American Bank & Trust Co. v. Federal Reserve Bank of Atlanta 1921, 358).
Holmes was not saying that rights are meaningless. He was saying that identifying a right is often the beginning of legal analysis, not the end.
What Does It Mean to Say That a Right Is “Qualified”?
Suppose someone says, “I have a right to use my property.”
That may be true. But it does not necessarily follow that the person may use the property in any way, at any time, for any purpose, regardless of the harm caused to others.
The same is true of many familiar rights. A person may have a right to enter a contract, own property, speak freely, conduct business, or transfer money. Yet the law still asks questions about how that right is exercised and whether its exercise violates the rights of someone else.
That was Holmes’s point.
The case before the Supreme Court involved banks and the Federal Reserve Bank of Atlanta. The Federal Reserve Bank argued, in effect, that because it had a legal right to present checks for payment, it could present large numbers of checks at once regardless of the purpose or effect of doing so (American Bank & Trust Co. v. Federal Reserve Bank of Atlanta 1921, 358).
Holmes rejected that logic.
A right to present a check for payment did not automatically become an unlimited right to use the presentation of checks as a means of coercing or injuring another business. The problem was not the existence of the right. The problem was treating a limited legal right as though it carried no boundaries (American Bank & Trust Co. v. Federal Reserve Bank of Atlanta 1921, 358–59).
Holmes illustrated the point with a simple example. A person may ordinarily have the right to give money to another person. But if the payment is a bribe, the fact that the money belongs to the giver does not make the transaction lawful (American Bank & Trust Co. v. Federal Reserve Bank of Atlanta 1921, 358).
The right is real. The exercise of the right is still subject to legal limits.
The Word “Right” Can Hide Important Questions
Modern legal philosophy helps explain why Holmes’s warning remains useful.
When lawyers use the word right, they may be describing several different things. A right might mean that a person is free to act. It might mean that another person has a duty toward them. It might mean that a person has the legal power to change a relationship. It might also mean that the law protects a person against someone else changing that relationship (Wenar 2005, 223–52).
That means the statement “I have a right” may be incomplete.
A better set of questions is:
What kind of right?
A right against whom?
A right to do what?
Under what circumstances?
Subject to what limits?
These questions matter because rights exist within relationships. My rights interact with your rights. Property rights interact with nuisance law. Contract rights interact with fraud rules. Religious liberty interacts with other legal obligations. Freedom of speech interacts with doctrines governing threats, defamation, and other legally significant forms of expression.
The existence of a right therefore does not necessarily answer the question of its scope.
Holmes and the Common Law
Holmes’s observation fits comfortably within one of the central habits of common-law reasoning.
The common law usually develops by drawing boundaries between competing claims. Judges ask where one person’s legal freedom ends and another person’s legally protected interest begins.
That means common-law rights are rarely isolated propositions. They exist within a network of duties, defenses, remedies, exceptions, and competing rights.
An owner has property rights, but neighbors also have rights.
A business may compete with another business, but not every form of competition is necessarily lawful.
A person may make an agreement, but the law may refuse to enforce agreements involving fraud, duress, illegality, or other recognized defects.
Historically, American common law also developed alongside natural-law reasoning. Lawyers and judges did not necessarily treat natural law as a simple list of absolute rules. Natural-law principles could provide broader ideas about justice, duty, reason, and human flourishing, while common-law doctrine supplied more specific rules for applying those principles to actual disputes (Forsyth 2019, 70–104).
This is important because it shows that the idea of qualified rights did not originate with Holmes.
Natural Rights Do Not Have to Mean Absolute Rights
At first glance, Holmes may appear to be in tension with the natural-rights tradition.
Natural-rights language suggests that some rights exist because of what human beings are, not merely because a government has chosen to recognize them. If that is true, one might assume that natural rights must also be absolute.
But that conclusion does not necessarily follow.
Natural-law theorists have long understood rights within a larger framework of justice, practical reason, human dignity, and the common good. A natural right may be fundamental without implying that every imaginable use of that right must be legally protected (Finnis 2011).
Consider property again.
A natural-rights theory might strongly protect the human capacity to own property. But it does not necessarily follow that ownership gives a person moral permission to use property to poison a neighbor’s land, defraud another person, or deliberately cause unjust harm.
The right itself may be fundamental. Its exercise still occurs within a moral and legal order.
This is one place where natural-law thinking and common-law reasoning can reinforce each other. Natural rights can help explain why certain interests deserve protection. Common law can help define how those interests operate when they encounter the legitimate interests of other people.
Where Holmes Breaks from the Natural-Rights Tradition
Holmes nevertheless differs significantly from traditional natural-law thinkers.
His disagreement concerned more than whether rights have limits. Holmes was skeptical of the idea that judges could begin with abstract concepts such as liberty, property, or natural right and logically deduce the answer to difficult legal disputes.
He wanted courts to examine what legal rules actually did in society and how competing interests interacted in practice. His work helped influence the broader movement away from nineteenth-century legal formalism and toward the more pragmatic approaches that later became associated with legal realism (Cohen-Eliya and Porat 2010, 263–86).
This marked an important transition in American jurisprudence.
Natural-law reasoning remained influential throughout much of American legal history, but lawyers increasingly began to understand law as the product of human institutions, judicial decisions, statutes, and historically developed legal practices rather than as a body of principles waiting to be discovered through reason alone (Banner 2021).
Holmes stands near the center of that transition.
So although Holmes and a natural-law theorist might agree that rights have limits, they may disagree about where those limits ultimately come from.
A natural-law thinker might say that rights are bounded by justice, human goods, duties to others, and the common good.
Holmes was more likely to look at the legal system itself and ask where courts had drawn, or should draw, the boundary between competing interests (Forsyth 2019, 125–45).
The Later History of the Case Matters
There is another important lesson in the history of American Bank & Trust.
When the dispute returned to the Supreme Court after further factual development, the courts concluded that the Federal Reserve Bank had not actually acted with the unlawful coercive purpose originally alleged. The Federal Reserve Bank was therefore permitted to continue presenting checks even though its conduct created economic pressure on the smaller banks (American Bank & Trust Co. v. Federal Reserve Bank of Atlanta 1923, 648–49).
That result helps clarify Holmes’s point.
He was not saying that whenever exercising a right harms someone else, the right disappears.
He was saying that the bare statement “I have a right” does not settle the question.
Courts still have to determine the scope of that right, the circumstances in which it is being exercised, and whether the conduct remains within lawful boundaries.
Sometimes the answer will be yes.
Sometimes it will be no.
But the answer cannot be reached simply by repeating the word right.
Why This Still Matters
Holmes’s warning remains valuable because modern public debate often treats rights as rhetorical trump cards.
Once someone invokes a right, further discussion can sound like an attack on the right itself.
But that is often a mistake.
A mature legal system can strongly protect rights while still asking difficult questions about their boundaries. In fact, defining those boundaries is one of the principal things law does.
Natural-rights theory helps us ask why certain human interests deserve protection in the first place. The common law helps translate those interests into legal relationships, rules, remedies, and limitations. American constitutional law adds another layer by placing some rights beyond ordinary political interference while still requiring courts to determine their scope.
Holmes’s warning therefore deserves to be remembered.
The danger is not believing in rights too strongly.
The danger is using the word right too loosely.
A legal right has a holder. It has an object. It operates against particular persons or institutions. It exists within particular circumstances. And it has boundaries.
Understanding those qualifications does not necessarily weaken a right.
Often, it is what makes the right legally meaningful.
Brandon L. Blankenship is an assistant professor, continuing legal education presenter, and business educator. He and his wife Donnalee live on their hobby farm south of Birmingham, Alabama.
American Bank & Trust Co. v. Federal Reserve Bank of Atlanta. 1921. 256 U.S. 350.
American Bank & Trust Co. v. Federal Reserve Bank of Atlanta. 1923. 262 U.S. 643.
Banner, Stuart. 2021. The Decline of Natural Law: How American Lawyers Once Used Natural Law and Why They Stopped. New York: Oxford University Press.
Cohen-Eliya, Moshe, and Iddo Porat. 2010. “American Balancing and German Proportionality: The Historical Origins.” International Journal of Constitutional Law 8 (2): 263–286.
Finnis, John. 2011. Natural Law and Natural Rights. 2nd ed. Oxford: Oxford University Press.
Forsyth, Andrew. 2019. Common Law and Natural Law in America: From the Puritans to the Legal Realists. Cambridge: Cambridge University Press.
Wenar, Leif. 2005. “The Nature of Rights.” Philosophy & Public Affairs 33 (3): 223–252.
The Supreme Court’s recent decisions in New York State Rifle & Pistol Ass’n v. Bruen (2022) and Dobbs v. Jackson Women’s Health Organization (2022) have catalyzed a profound reorientation in American constitutional interpretation. Both cases, though arising from distinct doctrinal contexts—Second Amendment rights and abortion, respectively—signal a decisive turn away from precedent-based balancing and toward a methodology that privileges history and tradition as the primary arbiters of constitutional meaning. Yet, as leading legal scholarship demonstrates, this shift is neither unproblematic nor internally consistent. In this article, I analyze the constitutional reasoning in Bruen and Dobbs, critically engage with the emerging scholarly critiques, and propose a new interpretive frame: a Contextualized Historical-Structural Approach that seeks to reconcile the virtues of historical inquiry with the demands of principled, transparent, and adaptable constitutional adjudication.
I. The Turn to History and Tradition: Methodological Convergence and Divergence
Both Bruen and Dobbs exemplify the Supreme Court’s increasing reliance on history and tradition as the touchstone for constitutional rights. In Bruen, the Court rejected the familiar two-step, means-end scrutiny for Second Amendment cases, instead requiring that modern gun regulations be justified by direct analogy to historical practices. The majority opinion, authored by Justice Thomas, insisted that the government must “affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms” (Blocher and Ruben 2025, 1782). Similarly, in Dobbs, the majority, led by Justice Alito, grounded its rejection of a constitutional right to abortion in the absence of such a right in the nation’s “history and tradition,” concluding that abortion was not “deeply rooted” in the American legal tradition at the time of the Fourteenth Amendment’s ratification (Schneller et al. 2024, 312).
Despite this methodological convergence, the cases diverge in their treatment of precedent and the scope of judicial power. Bruen is evolutionary, building on District of Columbia v. Heller (2008) without overturning longstanding precedent, whereas Dobbs is revolutionary, explicitly discarding nearly fifty years of precedent and signaling a willingness to revisit other substantive due process rights (Columbia Law Review 2025, 1123). This divergence underscores the Court’s selective deployment of history and tradition, raising questions about the coherence and legitimacy of its interpretive methodology.
II. Critiques of the Historical-Analogical Method
Legal scholars have subjected the Court’s new historical-analogical approach to searching critique. Blocher and Ruben (2025) argue that Bruen’s “originalism-by-analogy” does not, in practice, constrain judicial discretion; rather, it enables subjectivity and unpredictability, as courts struggle to identify relevant historical analogues for modern regulations. The lack of clear standards for what constitutes a “sufficiently similar” historical law has led to inconsistent outcomes in lower courts, with empirical studies documenting doctrinal instability and unpredictability (Blocher and Ruben 2025, 1790; “One Year Post-Bruen” 2023).
Similarly, the historical inquiry in Dobbs has been criticized for its selective and sometimes ahistorical use of the past. Schneller et al. (2024) contend that the majority’s account of abortion’s legal status at the time of the Fourteenth Amendment is contestable and that the decision’s narrow reading of substantive due process threatens the security of other unenumerated rights. The Court’s approach, they argue, risks reducing constitutional interpretation to a contest over historical narratives, with little guidance for resolving conflicts in the historical record (Schneller et al. 2024, 320).
Moreover, recent scholarship has identified a “hidden equality analysis” at work in both cases: when faced with conflicting historical traditions, the Court quietly applies reasoning akin to equal protection analysis, sometimes treating outlier laws as constitutionally suspect and sometimes incorporating them into the tradition (Columbia Law Review 2025, 1135). This implicit balancing, masked as neutral historical inquiry, undermines the transparency and predictability of constitutional adjudication.
III. The Limits of Existing Interpretive Frameworks
The ascendancy of history and tradition in Bruen and Dobbs reflects the dominance of originalism in contemporary constitutional theory. Yet, as Barnett and Solum (2023) and others have noted, originalism itself is not monolithic; it encompasses a range of approaches, from “public meaning” originalism to “framework originalism,” each with different implications for judicial discretion and adaptability. Critics of originalism warn that rigid historicism may fail to address contemporary problems, while living constitutionalism is faulted for granting judges excessive discretion (Barnett and Solum 2023, 145; Baude and Sachs 2022, 102).
The Court’s recent decisions expose the limitations of both approaches. The historical-analogical method, as applied in Bruen and Dobbs, neither fully constrains judicial discretion nor provides a principled basis for resolving novel constitutional questions. At the same time, the rejection of balancing tests and the narrowing of substantive due process threaten to erode the protection of fundamental rights not explicitly enumerated in the Constitution (Schneller et al. 2024, 325).
IV. Toward a Contextualized Historical-Structural Approach
In light of these developments, I propose a new interpretive frame: the Contextualized Historical-Structural Approach. This framework seeks to integrate the insights of historical inquiry with the structural principles and purposes of the Constitution, while maintaining transparency and adaptability in constitutional adjudication.
First, this approach recognizes the value of history and tradition as sources of constitutional meaning, but insists that historical analysis must be contextualized—attentive to the social, political, and technological changes that shape the application of constitutional principles. Rather than searching for direct analogues, courts should identify the underlying purposes and values animating historical practices and assess their relevance to contemporary circumstances (Blocher and Ruben 2025, 1802).
Second, the approach incorporates structural analysis, examining how constitutional provisions interact with one another and with the broader architecture of government. This structural perspective enables courts to consider the implications of their decisions for federalism, separation of powers, and the protection of individual rights, thereby avoiding the pitfalls of narrow textualism or selective historicism (Barnett and Solum 2023, 150).
Third, the Contextualized Historical-Structural Approach demands transparency in judicial reasoning. When historical evidence is ambiguous or contested, courts should candidly acknowledge the limits of historical inquiry and articulate the normative principles guiding their decisions. This transparency fosters legitimacy and predictability, while allowing for principled adaptation to new challenges (Columbia Law Review 2025, 1140).
Finally, this approach encourages a dialogic relationship between courts and the political branches, recognizing that constitutional meaning is shaped not only by judicial interpretation but also by democratic deliberation and social practice. By situating constitutional adjudication within this broader context, the framework balances respect for tradition with the need for constitutional evolution.
V. Conclusion
The Supreme Court’s decisions in Bruen and Dobbs mark a watershed in American constitutional interpretation, entrenching history and tradition as the primary arbiters of constitutional rights. Yet, as leading scholarship reveals, the Court’s historical-analogical method is fraught with indeterminacy and subjectivity, threatening both the coherence and legitimacy of constitutional law. The Contextualized Historical-Structural Approach offers a way forward: by integrating historical inquiry with structural analysis and transparent reasoning, it provides a principled and adaptable framework for constitutional adjudication in a changing society.
Brandon L. Blankenship is an assistant professor, continuing legal education presenter, and business educator. He and his wife Donnalee live on their hobby farm south of Birmingham, Alabama.
Barnett, Randy E., and Lawrence B. Solum. 2023. “Originalism After Dobbs, Bruen, and Kennedy: The Role of History and Tradition.” Northwestern University Law Review 117: 143–188.
Blocher, Joseph, and Eric Ruben. 2025. “Originalism-by-Analogy and Second Amendment Adjudication.” Yale Law Journal 134: 1775–1832.
Columbia Law Review. 2025. “How Bruen and Dobbs Resolved Opposing Historical Traditions Through Hidden Equal Protection Analysis.” Columbia Law Review 125: 1121–1150.
Schneller, Hillary A., Diana Kasdan, Risa E. Kaufman, and Alexander Wilson. 2024. “Dobbs v. Jackson Women’s Health Organization: Reckoning with its Impact and Charting a Path Forward.” University of Pennsylvania Journal of Constitutional Law 26: 311–355.
“One Year Post-Bruen: An Empirical Assessment.” 2023. Duke Law Journal 72: 201–245.
Baude, William, and Stephen E. Sachs. 2022. “Originalism and the Law of the Past.” Law and History Review 40: 101–130.
The concepts of "freedom" and "liberty" occupy a central place in the political discourse of the American founding era, yet their distinction remains a subject of scholarly debate. While these terms are often used interchangeably in both the Federalist and Anti-Federalist Papers, a closer examination of their philosophical, linguistic, and historical contexts reveals nuanced differences that reflect deeper ideological divides regarding the nature of self-government, the structure of political authority, and the protection of individual rights.
Linguistic and Philosophical Foundations
The etymological roots of "liberty" and "freedom" provide an initial point of distinction. "Liberty," derived from the Latin libertas and Old French liberté, is historically associated with legal and institutional dimensions of self-rule, emphasizing the rights and privileges conferred by membership in a political community. In contrast, "freedom," with its Old English origin (frēodōm), connotes a more personal or existential state, often linked to individual autonomy and the absence of external restraint (Skinner 1998; Berlin 1969). This linguistic distinction is reflected in the broader philosophical literature, where "liberty" is frequently tied to the structure and limits of political authority, while "freedom" is associated with the individual's capacity for self-determination (Berlin 1969; Pettit 1997).
Isaiah Berlin’s influential distinction between negative and positive liberty further illuminates these concepts. Negative liberty, or "freedom from" interference, aligns with the classical liberal tradition and is often mapped onto the term "freedom." Positive liberty, or "freedom to" realize one’s own potential or participate in collective self-governance, resonates with the republican tradition and is more closely associated with "liberty" as a political and civic ideal (Berlin 1969; Pettit 1997). However, as scholars have noted, the mapping of these philosophical distinctions onto the terms "freedom" and "liberty" is not always consistent, particularly in the context of eighteenth-century American political thought (Skinner 1998; Gienapp 2018).
Federalist Conceptions: Liberty as Ordered Self-Government
The Federalist Papers, authored by Hamilton, Madison, and Jay, articulate a vision of liberty that is fundamentally tied to the structure of government and the rule of law. For the Federalists, liberty is not simply the absence of government interference, but the product of a well-constructed constitutional order that prevents the concentration and abuse of power. Madison, for example, famously asserts that "justice is the end of government... until liberty be lost in the pursuit" (Federalist No. 51), emphasizing that liberty is preserved through a system of checks and balances, federalism, and the separation of powers (Madison 1788; Rakove 1996).
In this framework, liberty is a collective good, secured by institutions that channel and restrain both governmental and popular power. The Federalists acknowledge that liberty enables the formation of factions, but argue that the solution is not to suppress liberty, but to control its effects through a large, diverse republic (Federalist No. 10). Thus, liberty is conceived as the condition in which individuals are protected from arbitrary rule, not by minimizing government, but by ensuring its accountability and representativeness (Rakove 1996; Wood 1969).
Anti-Federalist Conceptions: Freedom as Local Autonomy and Non-Domination
The Anti-Federalist Papers, in contrast, foreground the dangers of centralized authority and the erosion of local autonomy. For the Anti-Federalists, freedom is closely tied to the ability of individuals and states to govern themselves without undue interference from a distant federal government (Storing 1981). They argue that true liberty requires not only the absence of oppression, but also the active capacity for self-government at the local level. Brutus, for instance, warns that the proposed Constitution would create a government with "absolute and uncontrollable power," threatening both state sovereignty and individual freedoms (Brutus No. 1).
The Anti-Federalists’ conception of liberty aligns with the republican ideal of non-domination, where freedom is understood as protection from arbitrary or unchecked authority (Pettit 1997). They insist that only small, local republics can adequately represent the interests of the people and safeguard their liberties. The demand for a bill of rights reflects their concern that explicit protections are necessary to prevent the encroachment of federal power on individual and state rights (Storing 1981; Cornell 1999).
Contemporary Scholarly Interpretations
Recent scholarship underscores that the distinction between freedom and liberty in the founding era is both context-dependent and ideologically charged. Linguistic analyses of founding-era texts reveal that "liberty" was more frequently used to denote political and civil rights within a constitutional order, while "freedom" could refer to both personal autonomy and collective self-determination (Gienapp 2018; COFEA Project). Intellectual historians caution against projecting modern, individualistic notions of liberty onto the Founders, emphasizing instead their communitarian understanding of self-government and the public good (Gienapp 2018; Wood 1969).
Legal scholars have critiqued originalist approaches that equate liberty with deregulation, arguing that the Founders saw a "free state" as one where the people, through representative institutions, could regulate their own rights in the public interest (Gienapp 2018). The ongoing tension between local autonomy ("freedom") and national unity ("liberty") reflects deeper, unresolved debates within the American constitutional tradition (Cornell 1999).
Conclusion
In sum, while "freedom" and "liberty" are often used interchangeably in the Federalist and Anti-Federalist Papers, their distinction lies in the emphasis placed on individual autonomy versus collective self-government, the structure of political authority, and the means by which rights are secured. The Federalists conceive of liberty as the product of a well-ordered constitutional system that balances competing interests and prevents tyranny, while the Anti-Federalists emphasize freedom as local autonomy and protection from centralized power. Contemporary scholarship highlights the importance of situating these terms within their historical and philosophical contexts, recognizing that the American founding tradition is marked by an enduring ambivalence—and creative tension—between the ideals of freedom and liberty.
Brandon L. Blankenship is an assistant professor, continuing legal education presenter, and business educator. He and his wife Donnalee live on their hobby farm south of Birmingham, Alabama.
Berlin, Isaiah. 1969. Two Concepts of Liberty. Oxford: Oxford University Press.
Cornell, Saul. 1999. The Other Founders: Anti-Federalism and the Dissenting Tradition in America, 1788–1828. Chapel Hill: University of North Carolina Press.
Gienapp, Jonathan. 2018. The Second Creation: Fixing the American Constitution in the Founding Era. Cambridge, MA: Harvard University Press.
Madison, James. 1788. "Federalist No. 51." In The Federalist Papers, edited by Clinton Rossiter. New York: Signet Classics.
Pettit, Philip. 1997. Republicanism: A Theory of Freedom and Government. Oxford: Oxford University Press.
Rakove, Jack N. 1996. Original Meanings: Politics and Ideas in the Making of the Constitution. New York: Vintage.
Skinner, Quentin. 1998. Liberty Before Liberalism. Cambridge: Cambridge University Press.
Storing, Herbert J., ed. 1981. The Complete Anti-Federalist. Chicago: University of Chicago Press.
Wood, Gordon S. 1969. The Creation of the American Republic, 1776–1787. Chapel Hill: University of North Carolina Press.
The case method, which has served as the cornerstone of American legal education since its introduction at Harvard Law School in the late nineteenth century, is predicated on the close analysis of appellate court decisions—many of which are, by their nature, narratives of legal failure or conflict (Stevens 1983; Kimball 2006). This pedagogical approach, while lauded for fostering critical thinking and doctrinal mastery, has been the subject of sustained critique regarding its psychological impact on law students, particularly in relation to the development of cynicism and risk-avoidant thinking.
The Case Method: Pedagogical Foundations and Critiques
The case method was designed to cultivate inductive reasoning, critical analysis, and comfort with legal ambiguity by immersing students in the study of judicial opinions (Kimball 2006). Through the Socratic method, students are challenged to dissect the reasoning behind judicial outcomes, often focusing on the errors, misjudgments, or failures of parties and lower courts (Schwartz 2001). While this approach is intended to mirror the realities of legal practice, it has been critiqued for overemphasizing doctrinal analysis at the expense of practical skills and for insufficiently preparing students for the complexities of real-world lawyering (Sullivan et al. 2007).
Studying Failure: Psychological Impacts
Empirical research in professional education more broadly, and legal education specifically, suggests that repeated exposure to failure cases can have complex psychological effects. On one hand, the analysis of failure is a powerful tool for learning, prompting deeper cognitive engagement, metacognitive reflection, and the development of adaptive expertise (Meyer et al. 2013). However, when failure is presented without adequate scaffolding or within a punitive classroom climate, it can also engender negative affective responses, including anxiety, frustration, and diminished self-efficacy (Steenhuis et al. 2022). In the context of law school, where the error climate is often competitive and high-stakes, these negative emotions may be amplified, contributing to the development of cynicism and risk aversion (Krieger 2002).
Cynicism and Risk Aversion in Law Students
Longitudinal and cross-sectional studies of law student psychology have documented a marked increase in cynicism as students progress through their legal education (Krieger 2002; Sheldon and Krieger 2004). This cynicism is characterized by skepticism toward the motives of others, the legal system, and the possibility of achieving justice. The adversarial and critical nature of the case method, which privileges the identification of flaws and the anticipation of legal pitfalls, is frequently cited as a contributing factor (Sullivan et al. 2007). Moreover, the emphasis on precedent and the avoidance of error in legal reasoning can reinforce a risk-averse mindset, as students learn to prioritize caution and the minimization of liability over innovation or advocacy for systemic change (Hamilton 2013).
Research in educational psychology further supports the notion that exclusive focus on failure cases, without balancing narratives of success or resilience, can foster risk-avoidant thinking and undermine professional confidence (Steenhuis et al. 2022). While the ability to anticipate and mitigate risk is a valuable legal skill, excessive risk aversion may limit students’ willingness to pursue entrepreneurial or public interest careers, and may stifle the development of creative problem-solving abilities (Hamilton 2013).
Professional Identity Formation and the Limits of the Case Method
The process of professional identity formation in law school is deeply influenced by the curriculum, faculty role models, and peer interactions (Sullivan et al. 2007). The case method, by centering legal education on the analysis of failure and conflict, may inadvertently shape students’ sense of what it means to be a lawyer—privileging skepticism, adversarialism, and risk minimization over collaboration, ethical reflection, and social justice advocacy (Hamilton 2013). While some degree of cynicism and risk awareness is arguably necessary for effective legal practice, the challenge for legal educators is to balance these traits with the cultivation of resilience, ethical commitment, and a sense of professional purpose.
Conclusion
In sum, while the case method remains a powerful tool for developing legal reasoning, its focus on the failures of others can contribute to the development of cynicism and risk-avoidant thinking among law students. These psychological tendencies are not inevitable, but are shaped by the broader educational climate, the presence or absence of supportive pedagogical practices, and the integration of alternative approaches that highlight success, resilience, and ethical engagement. A more balanced and reflective pedagogy—one that integrates both failure and success cases, fosters a positive error climate, and supports professional identity formation—may better prepare law students for the complexities and demands of legal practice.
Brandon L. Blankenship is an assistant professor, continuing legal education presenter, and business educator. He and his wife Donnalee live on their hobby farm south of Birmingham, Alabama.
Hamilton, Neil W. 2013. "Professional Formation and the Case Method." In Educating Lawyers: Preparation for the Profession of Law, edited by William M. Sullivan et al., 190–220. San Francisco: Jossey-Bass.
Kimball, Bruce A. 2006. The Inception of Modern Professional Education: C.C. Langdell, Harvard Law School, and the American Model of Legal Education. Chapel Hill: University of North Carolina Press.
Krieger, Lawrence S. 2002. "Institutional Denial about the Dark Side of Law School, and Fresh Empirical Guidance for Constructively Breaking the Silence." Journal of Legal Education 52 (1): 112–29.
Meyer, Bernd, et al. 2013. "Learning from Errors: Theory and Educational Implications." Frontiers in Psychology 4: 1–10.
Schwartz, Michael H. 2001. "Teaching Law by Design: How Learning Theory and Instructional Design Can Inform and Reform Law Teaching." San Diego Law Review 38: 347–420.
Sheldon, Kennon M., and Lawrence S. Krieger. 2004. "Does Legal Education Have Undermining Effects on Law Students? Evaluating Changes in Motivation, Values, and Well-Being." Behavioral Sciences & the Law 22 (2): 261–86.
Steenhuis, Ineke H., et al. 2022. "Learning from Failure: The Role of Error Climate and Feedback in Professional Education." Studies in Higher Education 47 (2): 345–62.
Stevens, Robert Bocking. 1983. Law School: Legal Education in America from the 1850s to the 1980s. Chapel Hill: University of North Carolina Press.
Sullivan, William M., Anne Colby, Judith Welch Wegner, Lloyd Bond, and Lee S. Shulman. 2007. Educating Lawyers: Preparation for the Profession of Law. San Francisco: Jossey-Bass.
There is no single, authoritative national statistic on how many U.S. attorneys primarily practice criminal law. Federal data sources classify lawyers by employer or industry rather than by subject-matter specialization, and bar organizations’ tabulations are not standardized across jurisdictions. Consequently, the best evidence comes from large, peer-reviewed studies of the legal profession that measure practice fields within representative samples and from scholarly syntheses of that literature. Taken together, these sources converge on a consistent picture: criminal practice constitutes a small minority of the U.S. bar—on the order of the mid–single digits, rising when prosecutors and public defenders are included.
The most detailed field-distribution evidence comes from the American Bar Foundation’s landmark “Chicago Lawyers” research program, which repeatedly mapped the practice ecology of a large metropolitan bar. In the 1990s wave reported in Urban Lawyers, criminal work accounted for only a small slice of the bar overall, with criminal defense occupying a modest share of private practitioners and a substantial fraction of government lawyers working as prosecutors or public defenders; combined, the criminal sphere in that metropolitan sample fell in the mid–single digits of the total bar (Heinz et al. 2005). An earlier analysis of the same bar in the 1990s similarly found that criminal practice remained a numerically small specialty relative to civil litigation and business-related fields, underscoring the stability of this pattern over time (Heinz, Nelson, and Laumann 1998). These studies also show that criminal practice is disproportionately located in solo and small-firm settings and in the public sector—features that keep its overall share limited even as it is central within those segments of the profession (Heinz et al. 2005).
National syntheses reach parallel conclusions. Reviewing multiple empirical studies, Sandefur characterizes criminal practice as a minority field within the stratified “two hemispheres” of the bar, concentrated in “people law” practices and in government roles rather than in the corporate hemisphere that numerically dominates large-firm employment; in aggregate, this places criminal practice below one-tenth of the profession and typically in the mid–single-digit range (Sandefur 2007). Classic structural accounts of the U.S. profession likewise emphasize that only a small fraction of lawyers specialize primarily in criminal matters, with most legal labor allocated to civil and commercial work; historical estimates in these accounts have consistently located criminal practice as a minor share of the bar (Abel 1989).
Triangulating across these research traditions yields a cautious but defensible estimate for the contemporary United States: approximately 5–8 percent of practicing attorneys primarily practice criminal law. The lower end of that range reflects the small proportion of private practitioners who identify criminal defense as a principal specialty; the upper end reflects inclusion of the sizeable corps of prosecutors and public defenders within government lawyering. Because many civil practitioners occasionally handle criminal matters, the proportion of lawyers who ever do any criminal work is higher than the proportion whose primary practice is criminal. But as a share of the bar defined by primary specialization, the best academic evidence places criminal practice firmly in the single digits (Heinz et al. 2005; Heinz, Nelson, and Laumann 1998; Sandefur 2007; Abel 1989).
Brandon L. Blankenship is an assistant professor, continuing legal education presenter, and business educator. He and his wife Donnalee live on their hobby farm south of Birmingham, Alabama.
Abel, Richard L. 1989. American Lawyers. New York: Oxford University Press.
Heinz, John P., Robert L. Nelson, Rebecca L. Sandefur, and Edward O. Laumann. 1998. “The Changing Character of Lawyers’ Work: Chicago in 1975 and 1995.” Law & Society Review 32 (4): 751–775.
Heinz, John P., Robert L. Nelson, Rebecca L. Sandefur, and Edward O. Laumann. 2005. Urban Lawyers: The New Social Structure of the Bar. Chicago: University of Chicago Press.
Sandefur, Rebecca L. 2007. “Staying Power? The Persistence of Social Inequality in the U.S. Legal Profession.” Annual Review of Law and Social Science 3: 377–401.
