Tradition. It’s the talk of the town — especially in originalist circles. But what role should it play in constitutional argument? Even fellow originalists can’t agree. Take Vidal v. Elster. There, Justice Barrett agreed with the Court’s holding announced by Justice Thomas: “[T]he particular restriction before us, the names clause in [the Lanham Act], does not violate the First Amendment.” But she and Justice Thomas disagreed on at least one methodological front: When should an originalist Court turn to postratification tradition?
Before we get there, here are the facts. “Steve Elster sought to register the trademark ‘Trump too small.’” The Patent and Trademark Office (PTO) refused to do so. The PTO invoked the so-called “names clause” of the Lanham Act, the federal statute governing trademark law. The names clause “prohibits registration of a trademark that ‘[c]onsists of or comprises a name . . . identifying a particular living individual except by his written consent.’” Elster argued that this provision violated the First Amendment.
The Court unanimously disagreed, upholding the constitutionality of the names clause. But the Court was methodologically fractured in Elster. Although four separate opinions were filed, this post will focus specifically on the methodological back-and-forth between Justice Thomas and Justice Barrett. Let’s jump in.
See, in Elster, Justice Thomas discussed common law trademark cases that had been adjudicated after the ratification of the First Amendment. From those cases, he concluded that at common law, “a person generally had a [trademark] claim only to his own name” — and not the name of another living person. Accordingly, he viewed the names clause to be consistent with “common-law tradition” and, thus,it passed muster under the First Amendment.
Concurring in part, Justice Barrett took issue with some parts of Justice Thomas’s opinion. For starters, she thought that Justice Thomas’s historical evidence was scanty. She was “less sure” that the common law contained “a rule akin to the names clause.” Indeed, “if such a common-law rule existed,” she thought the “majority opinion” failed to “identify it.” At bottom, she found it “difficult to say that the names clause is constitutional solely because of its historical,” common-law “pedigree.”
But her disagreement was also a methodological one. Because “[e]ven if the Court’s evidence were rock solid, [she] still would not [have] adopt[ed]” the Court’s approach.
Justice Barrett pointed out that postratification tradition is a useful tool. But it “is not an end in itself.” In these pages, I recently made a similar point. Tradition should be aiming at something. Yet, Justice Barrett observed that the “[t]he Court does not (and could not) argue that the late-19th and early-20th century names-restriction tradition serves as evidence of the original meaning of the Free Speech Clause.” Instead, she viewed the Court as “present[ing] tradition itself as the constitutional argument.” And, for Justice Barrett, a “rule rendering tradition dispositive is,” simply, “a judge-made test.”
To be sure, Justice Barrett isn’t against judge-made tests. Indeed, she noted that “[i]n the course of applying broadly worded text like the Free Speech Clause, courts must inevitably articulate principles to resolve individual cases.” Instead, she just wanted the Court to be intellectually honest. Her “generally applicable principle” approach is judge-made, but she viewed the “common-law tradition” test as equally judicially created. And she saw no “good a reason to resolve this case using [Justice Thomas’s] approach rather than by adopting a generally applicable principle.”
Her tack would have privileged “principle” over “pedigree.” She turned toward the historical purpose of trademark law: “identifying the source of goods.” And, in her view, the names clause “reasonably relate[d] to [that] purpose.” So, it was constitutional.
This isn’t the first time Justice Barrett has taken issue with Justice Thomas’s consultation of postratification historical materials. The same was true in Samia v. United States, where Justice Thomas wrote the Court’s majority opinion. There, in a case involving the Confrontation Clause, Justice Thomas looked to “longstanding practice” as identified in “early treatises.” By doing so, he was better able to demarcate the contours of the Clause.
In that case, Justice Barrett concurred in part and in the judgment. As in Elster, she took issue with the quality of Justice Thomas’s evidence. It was “largely from the late 19th and early 20th centuries—far too late to inform the meaning of the Confrontation Clause ‘at the time of the founding.’” To be sure, she recognized that the Samia Court didn’t “suggest that history [was] probative of original meaning.” Yet, she also remarked that the Court did not “explain why this seemingly random time period matter[ed].”
She also didn’t approve of the “substance of the [historical] snapshot.” Justice Thomas’s historical evidence “address[ed] the rules of evidence rather than the Confrontation Clause.” In other words, Justice Barrett thought that Justice Thomas relied on the wrong types of information. If the Court were trying to understand the scope of a constitutional right, she argued, it shouldn’t be looking to treatises dealing with the rules of evidence.
Elster, then, reflects Justice Barrett’s continued teasing-out of the Court’s “history and tradition” approach. It’s a conversation she’s been having since New York State Rifle & Pistol Ass’n, Inc. v. Bruen. Recall that there she wrote separately to emphasize that the “Court [did] not conclusively determine the manner and circumstances in which postratification practice may bear on the original meaning of the Constitution.”
With that quip from Bruen in mind, Justice Barrett’s Elster concurrence suggests that she may have rejected Justice Thomas’s consultation of postratification practice because it did not, in her view, properly “bear on . . . original meaning.” A purpose-based approach, in that case, was then the more originalist tack.
In other words, Justice Barrett seems to be saying that, in some cases, a “history and tradition” approach helps shed light on the original meaning of the Constitution. Bruen is a good example. There, she joined the Court’s opinion in full. But, in other cases, like Elster, other interpretive or adjudicative tools — like looking at purpose — are better fits.
For Justice Barrett, then, “history and tradition” is not the end-all, be-all of constitutional interpretation. It’s one tool of many. Sometimes it aids in uncovering original meaning. Other times it doesn’t. In Elster, she just cautioned the Court from automatically and reflexively turning to postratification tradition when it faces a constitutional question.
Elster, then, suggests that Justice Thomas’s “history and tradition” approach hasn’t yet won over all of the Court’s originalists. Time will tell if that remains the case.