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.
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References
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.
