History, tradition, and theology

In recent years, the U.S. Supreme Court has admirably moved toward a new framework for interpreting provisions of the Constitution, relying on “text, history, and tradition” to discern the application of broad principles like “the right to bear arms.” A recent amicus brief in an important case pending before the court from pro-family state legislators reminds us that the history and tradition of our nation cannot be understood apart from the deep religious heritage of our people.

In United States v. Skrmetti, the Department of Justice is suing the attorney general of Tennessee (the conservative champion Jonathan Skrmetti) to stop the Volunteer State’s ban on transgender surgeries on children. The 6th U.S. Circuit Court of Appeals upheld Tennessee’s law as part of the long-standing tradition of allowing states to regulate and define the scope of practice for medical care, especially for minors. The case is now before the Supreme Court as being representative of several challenges filed by the American Civil Liberties Union and others against similar laws in other states.

The decision will be important on its own merits, no doubt, concerning the ability of state governments to safeguard children from these life-defining surgeries. But how the court decides it will also be important because the justices will likely have to answer these questions by looking at not only the text but also history and tradition.

That’s where the amicus brief from the American Family Association and legislators from 23 states who sponsored these laws is so interesting. It says it relies on “the original meaning of the Constitution and the biblical and classical tradition that influenced the Founders.”

Usually when lawyers talk about the “history and tradition,” they talk about how a provision was interpreted at the founding and since then. If the founders recognized an individual right to keep and bear arms, and for 175 years after that, the nation broadly recognized an individual right to guns, then the “gun control” of the modern era is incompatible with our history and tradition. The AFA brief makes the argument not looking forward from the founding but looking backward—what intellectual influences did the founders bring with them when they wrote the Constitution and the Bill of Rights? What history and tradition preceded the Constitution and shaped its provisions?

It won’t surprise WORLD readers that the answer is Rome, Athens, and Jerusalem: the traditions of Roman and Greek philosophy and Judeo-Christian theology. Indeed, though the framers were generally well-educated men who were deeply read in the classical tradition, the framers and the people were steeped in the Bible.

So, when we ask, “How would the founders approach transgender surgeries on kids?” there’s no passage in The Federalist Papers or The Works of Thomas Jefferson that addresses that particular question. Can you envision George Washington even contemplating whether doctors could remove children’s body parts so they can align their physical bodies with their psychosocial gender self-identity? (The answer is no, you cannot.) Instead, we turn to the “biblical and classical tradition that influenced the Founders,” which in this case led to 10 Bible verses on self-control. The AFA brief argues that self-control is a classical and Biblical virtue and includes denial of one’s passions and inclinations to instead live into truth and righteousness. AFA and its legislator clients then apply that principle of self-control to the particular context of gender identity and transitions.

The larger point remains, however: As the Supreme Court returns us to text, history, and tradition as the guideposts for constitutional interpretation, it will necessarily return us to the roots of the American order. Those roots are sunk deep in the rich soil of the Biblical and classical tradition and are integral to any authentic understanding of our civilization. John Adams famously said, “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” It is also true that our Constitution was made by moral and religious people, and their understanding of it must shape our own interpretation and application today.