The Supreme Court increasingly invokes history as a neutral constraint on constitutional interpretation. Yet the Court’s methods for evaluating historical authority remain underdeveloped. Cases such as Dobbs v. Jackson Women’s Health Organization and United States v. Skrmetti illustrate how different evidentiary deficits—historical absence or scientific uncertainty—can acquire constitutional significance and weigh against constitutional protection. Both forms of reasoning, however, risk treating absence or uncertainty as a constitutionally neutral baseline from which courts may draw determinative conclusions about constitutional protection. This Essay addresses that problem by proposing a structured method for using history as a diagnostic tool rather than as a dispositive authority. It instructs courts to ask (1) what constitutional function a historical practice served and (2) whether that practice rests on a classification or purpose that the Reconstruction Amendments or subsequent constitutional doctrine have rendered defective. By grounding limits on historical reasoning in Reconstruction’s fixed constitutional commitments, the framework disciplines history’s use without expanding constitutional rights through unprincipled judicial discretion.
Author
Leanna Tilitei is a graduate of Harvard Law School and the University of Pennsylvania. Her writing focuses on constitutional law and legal history. She is grateful to Professor Martha Minow for her guidance and thoughtful feedback on earlier drafts of this Essay and to the editors of the Northwestern University Law Review Online for their careful editing.