History written to win legal arguments has a different authority from history written to find out what happened. Illustration by Brian Stauffer

On the night of April 9, 1931, James M. Kiley, thirty-nine, was shot with a .32-calibre pistol at a gas station in Somerville, Massachusetts, during a botched holdup. Kiley, the night manager, had twenty-four dollars in his pocket; the cash in the register was untouched. Herman Snyder, nineteen, was found guilty of first-degree murder and sentenced to death. “Well, that’s that,” Snyder said, when the jury delivered the verdict. But that wasn’t that. Snyder filed an appeal arguing that his constitutional rights had been violated: during his trial, when the judge, the jury, lawyers for both sides, and a court stenographer visited the gas station, the judge refused to allow Snyder to go along. Even Lizzie Borden had been offered a chance to go with the jury to the crime scene, Snyder’s lawyers pointed out, and so had Sacco and Vanzetti.

In the summer of 1933, Snyder’s lawyers went to see Louis Brandeis, the Supreme Court Justice, at his summer home, on Cape Cod; Brandeis, in an extraordinary gesture from the highest court, issued a stay of execution. The Court agreed to hear the appeal, and, in January, 1934, upheld Snyder’s conviction in a 5–4 opinion that proposed a standard for measuring the weight of tradition in fundamental-rights cases, a standard sometimes known as the history test.

Some rights, like freedom of religion, are written down, which doesn’t always make them easier to secure; and some, like the right to marry, aren’t, which doesn’t mean that they’re less fundamental. The Constitution, as originally drafted, did not include a bill of rights. At the time, a lot of people thought that listing rights was a bad idea because, in a republic, the people retain all the rights not specifically granted to the government and because anything written down is both limited and open to interpretation. “What is the liberty of the press?” Alexander Hamilton asked. “Who can give it any definition which would not leave the utmost latitude for evasion?” These were excellent questions, but Hamilton lost the argument. The Bill of Rights was ratified in 1791. Past the question of which rights there remained the question of whose rights. In 1857, in Dred Scott, the Supreme Court asked whether any “negro whose ancestors were imported into this country and sold as slaves” is “entitled to all the rights, and privileges, and immunities” guaranteed in the Constitution. Relying on “historical facts,” the Court answered no, arguing that, at the time of the framing, black people “had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.” After Emancipation, the Fourteenth Amendment, ratified in 1868, cast off the shackles of history with this guarantee: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Then, in a series of cases in the early twentieth century, the courts began applying parts of the Bill of Rights to the states, mainly by way of the Fourteenth Amendment.

Yet how would judges decide what rights fall under the definition of due process and equal protection? There seemed to be two possibilities: precedent and reasonable judgment. In Snyder v. Massachusetts, Snyder’s attorneys argued that Snyder had a fundamental right to go on the trip to the gas station, under the due-process clause. But Justice Benjamin Cardozo, writing for the majority, said that the question turned not only on a reasonable reading of the Fourteenth Amendment or on precedent but also on whether refusing to bring a defendant with the jury to the crime scene “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” He then recited instances, going back to 1747, to show that what Snyder had been denied did not meet this standard.

History, in one fashion or another, has a place in most constitutional arguments, as it does in most arguments of any kind, even those about whose turn it is to wash the dishes. Generally, appeals to tradition provide little relief for people who, historically, have been treated unfairly by the law. You can’t fight segregation, say, by an appeal to tradition; segregation was an entrenched American tradition. In 1896, Plessy v. Ferguson, essentially reprising Dred, cited the “established usages, customs, and traditions of the people” in affirming the constitutionality of Jim Crow laws. In 1954, to challenge such laws, Brown v. Board of Education disavowed historical analysis and cited, instead, social science: empirical data. Meanwhile, Snyder was chiefly cited in appeals of murder convictions involving defendants who claimed that their rights had been violated. In 1945, Justice William O. Douglas cited Snyder in a 5–4 decision reversing the conviction of a Georgia sheriff who had arrested a young black man for stealing a tire and then beaten him to death. The killing was “shocking and revolting,” Douglas wrote, but it was impossible to know whether the victim’s civil rights had been violated. In a fierce dissent, Francis Murphy argued that the reversal was absurd: “Knowledge of a comprehensive law library is unnecessary for officers of the law to know that the right to murder individuals in the course of their duties is unrecognized in this nation.”

But, in recent decades, the history test applied in cases like Snyder has quietly taken a special place; it has been used to help determine the constitutionality of everything from assisted suicide to deportation, by the unlikely route of judicial decisions about sex. History’s place in American jurisprudence took a turn in 1973, in Roe v. Wade, when the Court dusted off its incunabula and looked into what “history reveals about man’s attitudes toward the abortion procedure over the centuries,” as Justice Harry Blackmun explained. Abortion had not been a crime in Britain’s North American colonies, nor was it a crime in most parts of the United States until after the Civil War. “It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage,” Blackmun wrote. In turning back the hands of time, he didn’t stop there. “We are told that, at the time of the Persian Empire, abortifacients were known, and that criminal abortions were severely punished. We are also told, however, that abortion was practiced in Greek times as well as in the Roman Era, and that ‘it was resorted to without scruple.’ ” Roe overturned laws passed by state legislatures by appealing to ancient history. William Rehnquist, in his dissent, cited Snyder: “The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ ”