THE TERRITORIES UNDER TEXT, HISTORY, AND TRADITION.

• Author: Willinger, Andrew

ABSTRACT

In two of its major decisions in the 2021-2022 Term, New York State Rifle & Pistol Ass'n v. Bruen and Dobbs v. Jackson Women's Health Organization, the Court continued solidifying its originalist method of constitutional interpretation by looking increasingly to historical regulatory practice to construe how the Constitution protects individual rights. The Court is focused not only on the original public meaning of constitutional provisions, but also on historical practice. Historical laws and practices are now key to understanding how those who lived at the relevant time thought a constitutional provision might be applied and what regulatory approaches were consistent with that provision. Bruen and Dobbs both considered laws passed by governments in the Western territories prior to statehood in the nineteenth century, but with polar opposite results. One day the Court suggested that territorial laws and practices were exceptional improvisations irrelevant to the search for a national tradition; the very next day, the Court implied that territorial laws can be valuable tools for constitutional interpretation. This Article searches for a more satisfying and consistent theory of how to utilize territorial history in constitutional cases.

Part I critically analyzes the decision in Bruen and the Court's determination that territorial public-carry bans could not serve as analogues to support New York's modern gun-licensing law. Part II explains the history of continental territories, examines Dobbs and other decisions invoking territorial laws and practices, and identifies relevant principles from legal scholarship regarding the Court's reliance on non-federal sources to interpret provisions of the U.S. Constitution. Part III argues that the Supreme Court's use of territorial history in Bruen was inconsistent with its past practice, that territorial history is especially likely to reflect federal constitutional meaning because the territories were subject to the federal Bill of Rights long before those rights were incorporated against state governments, and that a text, history, and tradition methodology should accord territorial laws and practices a meaningful role.

1. Bruen and the Territories A. The Court Turns to Text, History, and Tradition B. Refuting Bruen's Critique of Territorial History. 1. Duration and Improvisational Nature 2. Lack of Judicial Scrutiny. 3. Population Density and Counter-Majoritarianism. II. The Constitution and the territories A. A Brief History of the Continental Territories. B. The Bill of Rights Applied to Continental Territories 1. Historical Evidence. 2. Legal Evidence C. The Court Has Invoked Territorial Laws and Practices in Other Contexts 1. Substantive Due Process 2. The Eighth Amendment and Other Consensus-Based Uses of Territorial Law D. "Other Law" Scholarship as a Guide to the Territories 1. State Law. 2. Foreign Law 3. Territorial Law III. Territorial Relevance After Bruen and Dobbs A. Territorial History Is a Valuable Resource in Constitutional Cases 1. Originalism and American Exceptionalism 2. Expanding the Scope of Historical Inquiry. 3. Federalism. 4. Institutional Capacity and Rigor of Analysis 5. Summary' of Territorial Laws B. Toward a Theory of Territorial Relevance. C. The Territories in Future Second Amendment and Constitutional Cases. Conclusion INTRODUCTION

   Frederick Jackson Turner wrote in 1893 that "at the end of a hundred years of life under the Constitution, the frontier has gone, and with its going has closed the first period of American history." (1) With the closing of the frontier, areas which had existed for long periods under territorial government became states. (2) As the Supreme Court increasingly looks to historical tradition to interpret the Constitution, it has--at times--curiously overlooked the importance of territorial acquisition and territorial governance in shaping the character and politics of the early United States during those first "hundred years of life under the Constitution." (3)

   The question of how to weigh historical practices from the continental U.S. territories is especially important following the Court's back-to-back decisions in New York State Rifle & Pistol Ass'n v. Bruen and Dobbs v. Jackson Women's Health Organization, and the shift to a version of originalism heavily informed by historical regulatory practice those decisions represent. (4) Bruen upended Second Amendment jurisprudence by holding that, instead of a scrutiny-based test, "the government must affirmatively prove that [a] firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms." (5) In other words, the constitutionality of most modern gun laws now turns on whether governments enacted similar restrictions close in time to either 1791, when the Bill of Rights was ratified, or 1868, when the Fourteenth Amendment that would ultimately incorporate the Second Amendment against state governments was ratified. New York pointed to several laws from continental territories that restricted the right to publicly carry firearms in ways similar to, or broader than, New York's licensing law that required an applicant to demonstrate proper cause to carry a concealed firearm in public (commonly known as a "may-issue" law). (6) The Court proceeded to disregard all five territorial laws as "exceptional" outliers because territorial government was supposedly tolerant of "legislative improvisations" that did not accord "with the Nation's earlier approach to firearm regulation." (7)

   The Court's analysis of territorial history in Bruen is inconsistent with how it has approached the territories in other recent decisions. (8) Indeed, just one day after Bruen, Dobbs explicitly credited territorial abortion restrictions when examining whether a fundamental right to abortion was consistent with history and tradition around the time that the Fourteenth Amendment was ratified. Dobbs found highly relevant a "trend in the Territories that would become ... States." (9) In other fundamental rights cases, the Court has similarly accorded territorial history a status nearly equal to state history, or suggested as much. For example, the Court has referenced historical territorial laws, practices, and judicial decisions when evaluating legal challenges to assisted suicide bans and criminal penalties under the Eighth Amendment. (10) Justices have even cited laws passed by current U.S. territories, such as Puerto Rico, and suggested that these laws are on similar footing to laws passed by states in terms of their relevance to constitutional interpretation--demonstrating that the territories are normally considered within the denominator whenever the Court conducts jurisdictional "counts" to evaluate the acceptance and impact of certain practices. (11)

   Bruen's perplexing approach to the territories, a notable departure from the Court's practice outside of the Second Amendment, signals that the time has come both to fully evaluate the normative considerations implicated when territorial laws or practices are raised under a legal test focused on historical tradition and to identify a coherent framework for using territorial history. Bruen represents a broader embrace of historical tradition and, potentially, historical regulatory practice as a key to original constitutional meaning. (12) The Court has increasingly relied upon this methodology, including in other cases decided in the 2021-2022 Term. (13) It is likely that Bruen's brand of originalism may ultimately be extended to other provisions in the Bill of Rights, and lower courts are increasingly likely to consider and analyze historical regulatory practice when construing constitutional provisions to determine, in Bruen's words, "whether modern ... [laws] are consistent with ... text and historical understanding." (14) This inquiry will often involve canvassing times in American history when the country had many continental territories on their way to statehood. (15)

   Scholars have devoted substantial energy over the past two decades to analyzing the role of state (16) and foreign (17) practice in federal constitutional interpretation. These scholars have vigorously debated the propriety of using such sources to decide claims brought under the Federal Constitution and its amendments. (18) Yet the Court's reliance on territorial laws and practices (19)--legislation and historical practice in the "continental" territories during the at-times-lengthy periods of transitional territorial government that directly preceded statehood--remains unexplored.

   Should territorial practices be viewed in the same way as state practices, or should they be discounted and treated as more akin to foreign practices--only mildly persuasive, if relevant at all? This Article argues that, under an originalist methodology that considers historical regulatory practice, the Court's fundamental rights jurisprudence must account for territorial history. (20) After all, state governments were not subject to the Bill of Rights until the twentieth century due to the non-incorporation doctrine adopted in the Slaughter-House Cases; even when the Court began selectively incorporating provisions of the Bill of Rights against the states through the Due Process Clause it did so gradually, not incorporating the Second Amendment until McDonald v. City of Chicago was decided in 2010. (21) Territorial governments, on the other hand, were directly subject to the Bill of Rights from inception, and territorial laws were often challenged under other amendments in the Bill of Rights. (22) Thus, territorial laws and practices are especially likely to illustrate the originally understood scope of the actual language used in the Second Amendment, and potentially other amendments in the Bill of Rights, at a given point in history.

   The Article proceeds in three parts. Part I summarizes Bruen's treatment of...