Bolstering legal arguments using a “history and tradition” analysis.

As every lawyer knows, solid arguments are built on a combination of precedent and history—either urging the court to follow what it or other courts have done in the past, or to avoid prior decisions through distinction in the present application or context. Thus, in asking a court to engage in constitutional or statutory interpretation, what role does the “history and tradition” of the underlying text play in the analysis?

Both the Supreme Court of Texas and the Supreme Court of the United States have recently began placing an increased emphasis on the role of “history and tradition” in the interpretation of legal texts before them. The Supreme Court of Texas recently observed in application to due process claims that, “The Supreme Court [of the United States] has ‘regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition,’ and ‘implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.’” State v. Loe, 692 S.W.3d 215, 230 (Tex. 2024) (citing Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997)). While a very profound-sounding quote, what exactly does the phrase “Nation’s history and tradition” consist of? How can it be applied practically in support of an argument?

The Supreme Court of Texas revealed its usage of this reasoning in application of three cases in its most recent term. Just last week, the Court considered the newly enacted Religious Services Clause to the Texas Constitution as presented through a certified question from the Fifth Circuit. See Perez v. City of San Antonio, No. 24-0714, –S.W.3d –, 2025 WL 1675639, at *4 (Tex. Jun. 13, 2025). There, the Court considered the force and scope of the clause in the context of the government’s preservation and management of publicly owned lands. See id. at *1. The Court reflected on the “full context of the constitutional language and history.” See id. at *3 (internal citations omitted). When considering the scope of the clause, Justice Boyd, on behalf of the Court, reflected on the historical treatment of limitations of religious gatherings, specifically the historical treatment of the government’s right to construct roads on its lands and the government’s restrictions during the covid pandemic. Id. at *6. Rejecting both parties’ historical interpretations, the Court found that “the historical context also confirms that those who drafted and proposed the amendment did not intend that its scope be unlimited.” Id. at *11. The Court found that the City could limit access to a portion of a city park on public land used for religious gatherings when the area was unsafe and in need of renovations. Id. at 13.

In State v. Loe, the Court combed societal history and legal tradition for comparisons to the case before them—a controversial injunction regarding medical treatments to minors. Loe, 692 S.W.3d at 230. Justice Huddle recognized the issue as a new development, but one that courts must address, despite there being no direct precedent on point. See id. at 223. In analyzing “history and tradition,” the Court turned to other “various contexts, many of which are deeply embedded in our legal history.” Id. at 230. These included prohibitions on children engaging in employment, being the recipient of tattoos, or the purchasing of tobacco products. Id. Thus, the consensus of “history and tradition” supported the contention that parental control over their children has never been absolute, providing an avenue to support the Court’s position in their present case to allow the government’s regulation. Id. at 231.

Finally, in In re Dallas County, the constitutionality of the newly created Fifteenth Court of Appeals, and its statewide jurisdiction, was taken under review by the Court. 697 S.W.3d 142 (Tex. 2024). Once again, “history and traditional” played an important role in Justice Young’s opinion. Id. at 153. The Court was asked to interpret article five, subsection six of the Texas Constitution, with the overlay of the Texas legislature’s act in S.B. 1045, which created the Fifteenth Court of Appeals. Id. With the creation of all Texas courts of appeals, save the Supreme Court, being vesting in the legislature, “history and tradition” supported creation of the Fifteenth Court—even with a statewide jurisdictional reach. Id. The Court’s analysis began with and was guided by a historical review of the constitutional history of the Texas Constitution, as well as Texas court’s general favor toward the “textually permissible interpretation that furthers rather than obstructs the document’s [here, Article V, § 6(a)’s] purpose.” Id. at 159 (citing Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 63 (2012)). With the societal history and legal tradition setting the scope of the Court’s analysis, this framing was evidently instrumental in reaching the ultimate conclusion that the creation of the Fifteenth Court, and its statewide jurisdiction, was indeed constitutional. Id. at 165.

Thus, while the scope of “history and tradition” may seem unclear at first, the Supreme Court of Texas has made clear through application that textual interpretation will follow either a direct historical review of the underlying documents (like the Texas Constitution in In re Dallas County) or in analogous contexts (like the governance of the welfare of minors in Loe). Texas lawyers should base their legal arguments on established precedent—and will almost certainly find their arguments further bolstered by support from the “history and tradition” comprising their claims or the texts supporting them. While “history and tradition” may be difficult to weave into arguments depending on the context, appellate advocates should always consider how the court may view these “traditional” concerns when advancing their position.