Rachel Bayefsky on Wolford and the Problem of Tainted Traditions
Publisher
Divided Argument
Date
2026-6-30
The Supreme Court’s turn to “history and tradition” raises the critical question of what to do about “bad traditions.” If the customs of yore were driven by racial prejudice, for example, what weight should they carry in interpreting the Constitution? In the Second Amendment case Wolford v. Lopez, the Court confronted this question. Justice Alito’s majority, Justice Barrett’s concurrence, and Justice Jackson’s dissent offered divergent responses. The back-and-forth brought the problem of bad traditions into sharp relief and highlighted the uneasy place of moral evaluation in traditionalist analysis.
Citation
Rachel Bayefsky, Rachel Bayefsky on Wolford and the Problem of Tainted Traditions, Divided Argument (2026).