By: Victoria Villela

Published on: October 1, 2024

Thurgood Marshall, the first Black Supreme Court Justice of the United States, was unafraid to admit the unspoken truth. “The Constitution,” Marshall remarked during the bicentennial celebration of our founding document, “was defective from the start.”[1] Departing from an atmosphere thick with reverence and patriotism, Marshall acknowledged the centuries of injustices Black Americans suffered under this so-called document of freedom.[2]

In fact, the United States Constitution protected the right of southern states to keep the institution of slavery in four major ways.[3] The three-fifths clause found in Article 1, Section 2 counted three-fifths of a state’s enslaved population in apportioning representation in the House of Representatives and in the Electoral College.[4] Article 1, Section 9 of the Constitution prohibited Congress from outlawing the “importation” of persons, i.e., enslaved Africans prior to 1808.[5] Article 4, Section 2, Clause 3, otherwise known as the “fugitive slave clause,” required the return of runaway slaves to their owners.[6] With Article 5, Section 8, and Article 4, Section 4, the Constitution gave the federal government the power to put down domestic rebellions, including slave insurrections.[7]

Notwithstanding this nation’s deep history and enormous contributions to the Atlantic Slave Trade, the current Supreme Court increasingly applies “history and tradition” to substantiate or invalidate key constitutional questions.[8] In 2022, with Dobbs v. Jackson Women’s Health Organization, the Supreme Court unraveled fifty years of abortion rights and established a new standard for stare decisis by applying its “deeply rooted in American history and tradition” analysis.[9] The Court, in an opinion penned by Justice Alito, held that the Constitution does not confer a right to abortion, reasoning that abortion was neither (1) expressly mentioned nor (2) deeply rooted in American history and was even criminalized prior to Roe v. Wade’s watershed ruling.[10]

Similarly, in New York State Rifle & Pistol Association v. Bruen, the Supreme Court held that a government restriction on the right to keep and bear arms is unconstitutional unless analogous to firearm regulation that existed when the Second and Fourteenth Amendments were ratified.[11] The inclusion of the Fourteenth Amendment is, of course, to undermine the fact that slave codes throughout the South have deeply rooted histories and traditions regarding restricting firearms from enslaved or freed Black individuals.[12] However, at the ratification of both amendments, American culture was seeped in racism, influenced by the laws that were constructed to the detriment of Black and other minority groups.[13] Today, in 2024, we still have a socio-political climate that is fraught with bigotry and vestiges from the deeply rooted history of Jim Crow and enslavement.[14]

We also have a rampaging gun violence problem that claims the lives of thousands of children per year.[15] A more reasoned test to ascertain the validity of modern constitutional issues would incorporate the current cultural climate along with socioeconomic data in the balance with equal measure. Surely, legislative intent is an important component of the full picture when applying judicial reasoning to law, and so is construing the document to the intent of the framers, particularly with respect to issues concerning Equal Protection. However, a crucial component is also to weigh laws against evolving standards and modern social science. Not because such data benefits certain partisan lines but because it is a more holistic and, therefore, more accurate determination of the law. For example, in Brown v. Board of Education, in pursuit of overturning Plessy v. Ferguson[16], the litigation team representing Brown used sociological data to prove that separate but equal schools and establishments denied Black children equal protection under the Fourteenth Amendment.[17] It follows, then, that if the most influential Supreme Court case of the 20th century can look to data to inform its reasoning, then data has a proper place in jurisprudential reasoning.

Our understanding of the politics of racism, the power of gun violence, and the safety of reproductive healthcare can only help foster our understanding of the Constitution and should be weighed in conjunction with other metrics, including text and intent, in discerning answers to complex constitutional questions. The Court in Brown had to unequivocally overrule the logic behind Plessy to establish that the psychological effects of segregation were unequally suffered by Black children. In a new era of stare decisis jurisprudence, sociology-fortified reasoning can help establish how rational gun laws are not only in compliance with the Second Amendment but, in fact, are necessary for children to experience safety in public, a certain goal for the framers’ and founders of a new country tilted toward freedom. Furthermore, psychological data from people living in restrictive abortion states can influence a future Court’s understanding of Equal Protection for women in the United States.

By cherry-picking whose history the Court chooses to honor in deciding fundamental constitutional issues, it undermines the centuries of enslavement and the violent effects that remain prominent in Black Americans’ daily lives. Police brutality, mass incarceration, discrimination in public schools, and unequal pay are not subjects the framers cared about at the ratification of the Constitution; however, modern judges and justices must enter modern needs into the calculus lest America embraces a legal landscape that devastates Black and Brown communities. Strict textualism cannot claim impartiality when conservative ideology reveres gender roles, racial hierarchies, and guns.

The History and Tradition test stymies progress by hyper-fixating on a sanitized past that purposely disregards the ways in which the United States legal system oppressed Black Americans. “The true miracle was not the birth of the Constitution,” Marshall closed, “but its life.”[18]

[1] David G. Savage, Marshall on Constitution: ‘Defective From Start,’ L.A. Times, May 7 1987.

[2] See id.

[3] See generally U.S. Const.

[4] U.S. Const. art. I, § 2.

[5] U.S. Const. art. I, § 9.

[6] U.S. Const. art. IV, § 2, cl. 3.

[7] U.S. Const. art. V, § 8; U.S. Const. art. IV, § 4.

[8] Press Release, Brennan Ctr. for Just., Brennan Center Introduces the Historians Council on the Constitution (Jan. 17, 2024), https://www.brennancenter.org/our-work/analysis-opinion/brennan-center-introduces-historians-council-constitution.

[9] See Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022).

[10] Id.

[11] N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022).

[12] See, e.g., An Act Concerning Slaves, Free Negroes and Mulattoes, Jan. 19, 1828, 1828 Fla. Laws ch. 7985, State Archives of Florida, https://www.floridamemory.com/items/show/345405 (last visited Mar. 20, 2024) (establishing an elaborate slave code infringing on well-established constitutional rights, including the First Amendment right to assembly and Second Amendment right to bear arms).

[13] See, e.g., Plessy v. Ferguson, 163 U.S. 537 (1896) (affirming the constitutionality of “separate but equal,” currently regarded as unconstitutional apartheid of the races that violates Equal Protection).

[14] Human Rights Watch, Racism in the United States, https://www.hrw.org/report/2022/08/08/racial-discrimination-united-states/human-rights-watch/aclu-joint-submission.

[15]John Gramlich, Gun Deaths Among U.S. Children and Teens Rose 50% in Two Years, Pew Research Center, https://www.pewresearch.org/short-reads/2023/04/06/gun-deaths-among-us-kids-rose-50-percent-in-two-years/.

[16] Plessy, 163 U.S. at 537.

[17] Brown v. Bd. of Educ., 349 U.S. 294 (1955) (establishing that “separate but equal” violates the Equal Protection Clause of the Fourteenth Amendment).

[18] Savage, supra note 1.