‘History and Tradition’ in State Courts 

A solid majority of the Supreme Court now purports to rest its constitutional jurisprudence on a legal “history and tradition” divined from the nation’s common-law heritage. Many commentators question whether this approach — the latest incarnation of the now-ascendant “originalism” — should determine the metes and bounds of the Constitution. Even assuming history and tradition should carry some weight in legal interpretation, the Court’s method raises another crucial but unacknowledged concern: it relies on a cramped and misleading notion of the nation’s subjective past.

In a forthcoming article in the Louisiana Law Review, we draw attention to the varied histories and traditions of states that do not mirror the federal model or claim to be rooted in a common-law past. Some states draw more of their relevant tradition from other sources, deriving their guidance from a continental European civil law tradition with roots in ancient Rome. Louisiana offers the clearest example of a state with a “history and tradition” that does not trace to the mythological “courts of Westminster” on which the Supreme Court’s originalism is founded.

Louisiana’s civilian past provides a different framework for interpretation, which offers potent evidence that its state courts need not march in lockstep with federal interpretive methodology or doctrine. As an extension, we suggest that the Supreme Court’s originalist construction of the federal judicial power may also be incomplete. Since the Court has failed to consider the complex and overlapping legacies that inform framer-era understandings of courts and their relation to legislative authority, its understanding of the relevant past may not represent the full scope of the history and tradition that should matter.

Our article looks primarily at standing, the doctrine that determines the circumstances that allow a plaintiff to obtain judicial redress for alleged injuries. In a pair of cases from 2016 and 2021 — Spokeo Inc. v. Robins and TransUnion v. Ramirez— the Supreme Court tethered the federal judicial power to an imagined American common-law heritage passed down from the courts of Westminster. Federal court relief is available only to those injured persons who can show both “a close historical or common-law analogue for their asserted injury” and a mechanism of judicial relief conventionally available in English courts. As Justice Clarence Thomas explained in his TransUnion dissent, “legislatures are constitutionally precluded from creating legal rights enforceable in federal court if those rights deviate too far from their common-law roots.” This approach has exiled an expansive, if ill defined, set of statutory claims out of the federal courts.

State courts remain available to fill the remedial gap caused by the Supreme Court’s narrowing of federal judicial power. State courts presumptively have concurrent jurisdiction over federal law claims; Article III does not limit state judicial power; and the Supremacy Clause does not impose the Supreme Court’s methodology on the interpretation of state constitutional provisions. As a consequence, state courts need not mimic the Supreme Court’s methodology. Such interpretive independence is consistent with federalism, and it offers a potential lifeline to constitutional and statutory rights that federal courts no longer will enforce. These rights are critical, involving any “novel” claims our legislators may create as they seek to respond to contemporary conditions that differ from the harms present at and before the founding. And it facilitates the necessary delegation of some of the enforcement function to private litigants in order to fill inevitable gaps in the capacities of the executive branch.

Our focus on Louisiana illuminates a history and tradition that is pervasive in the United States but that is ignored and elided by the Supreme Court’s current species of originalism: the legacy of Rome and of equity.

Before it joined the American union, Louisiana was a colony of France, then Spain, then France again — both imperial powers with legal traditions drawn from Rome, not Westminster. When it became a U.S. territory, state luminaries resisted the Jefferson administration’s efforts to drive out civil law and replace it with the common law.

We argue that Louisiana’s civilian heritage carries two critical implications for the structure of Louisiana’s standing doctrine. First, the common law and the civil codes do not create and sustain the same rights and interests. Under the Supreme Court’s approach to federal standing doctrine, a plaintiff who cannot locate a common-law analogue for their alleged injury may not invoke federal judicial power. Historical silence preserves the status quo, blocking federal relief. To the extent Louisiana courts were to mimic this approach in determining whether the state’s legislature has power to create new rights and interests — an inquiry, to be clear, which they have not embraced — it would be a search primarily into the text, history, and tradition of the relevant civil codes, linked to the state’s constitution.

Second, legislative primacy is a more central premise under the civil law tradition than it is within the common-law framework. As a matter of judicial power, then, there can be no presumptive barrier to hearing whatever claims and interests the Louisiana legislature enacts, however novel (acknowledging, of course, that limits drawn from equal protection, due process, or other sources might apply). Indeed, the Louisiana courts, like many other state courts, have long heard suits, such as taxpayer actions, that would not fall within federal courts’ constitutional power. Thus, separate and apart from the distinctive landscape of direct analogues, the civilian heritage might undercut the basic innovation of the Supreme Court’s TransUnion case, which limits the power of the federal legislature to grant citizens new rights that can be remedied in federal court.

Nothing in the Louisiana Constitution limits judicially redressable injury to entitlements available at common law. Such a limitation would run counter to the state’s civilian heritage of legislative primacy, with the courts as enforcers of its legislative codes. Indeed, Section 22 of the Louisiana Constitution obligates the Louisiana courts to provide “an adequate remedy in due process and justice . . . for injury” to any claimant “in his person, property, reputation, or other rights” — a provision absent, at least in so many words, from the federal Constitution’s text.

This analysis carries implications beyond this single state. Louisiana is not the only state with a distinctive legal history and tradition. America expanded across the continent in fits and starts, swallowing legal subcultures as the nation took shape. Assuming that history and tradition must, or at least may, play a role in legal analysis, state lawmakers and judges would do well to recognize the potential in their own distinctive legal legacy. In a federal system designed to preserve subordinate sovereigns, any inquiry into the relevant history should respect this historical kaleidoscope. At a deeper level, the complexities inherent in a system composed of 50 interconnected legacies exposes a fundamental problem with the Supreme Court’s brand of originalism. It obscures the deep pluralism that marks the nation’s true history and tradition — which should be respected and even celebrated.

Helen Hershkoff is the Herbert and Svetlana Wachtell Professor of Constitutional Law and Civil Liberties at New York University School of Law. She is also a board member of the Brennan Center for Justice.

Adam Littlestone-Luria is a New York-based attorney and holds a PhD in history from the University of California, Berkeley.

Suggested Citation: Helen Hershkoff & Adam Littlestone-Luria, ‘History and Tradition’ in State Courts, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Sept. 30, 2024), https://statecourtreport.org/our-work/analysis-opinion/history-and-tradition-state-courts.