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Copyright (c) 2002 University of Miami Law Review
University of Miami

ARTICLE: Fundamentally Flawed: Tradition and Fundamental Rights

October, 2002

57 U. Miami L. Rev. 101


Adam B. Wolf*


American history is longer, larger, more various ...
and more terrible than anything anyone has ever said about it. - James Baldwin 1 History, despite its wrenching pain,
Cannot be unlived, and if faced
With courage, need not be lived again. - Maya Angelou 2

I. Introduction
History has played a famous - and sometimes infamous - role in American jurisprudence. It has loomed prominently in many areas of Constitutional interpretation, 3 though perhaps it has most profoundly affected fundamental rights jurisprudence, where history and tradition 4 are often consulted in order to assess whether a purported right is fundamental. 5 It is surprising, therefore, that legal scholarship has virtually avoided examining the use of history in fundamental rights analysis. While some authors have concentrated on the treatment of history in American Constitutional jurisprudence generally 6 and others have analyzed the role played by history in particular fundamental rights cases, 7 almost none has focused on the systematic application of history in fundamental rights doctrine. 8 In this article, I critically analyze the role of tradition in fundamental rights jurisprudence. For six reasons I conclude that a tradition of protecting or denying a purported fundamental right should not be a factor when assessing the alleged fundamentality of the right. First, in a nation in which subjugation has been more the norm than the exception, 9 relying on tradition often legitimizes and perpetuates prior discrimination. This is particularly dramatic in fundamental rights analysis, since purported fundamental rights generally implicate classifications (e.g., ...
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