Judges should be “very, very careful” about using historical evidence in constitutional adjudication,” Justice Amy Coney Barrett has said, adding that citations to favorable historical practices can be like “looking over a crowd and picking out your friends.”
Justice Amy Coney Barrett broke from her fellow “originalists” on the Supreme Court in a decision Thursday where she objected to the majority’s use of “historical analogues” to determine that a trademark law does not violate the First Amendment.
Justice Clarence Thomas, who wrote the majority opinion in Vidal v. Elster, has made searching for historical equivalents to modern laws a central focus of his analysis in recent cases dealing with the meaning of the Constitution. He most famously used that approach in the 2022 case New York State Rifle & Pistol Association v. Bruen to strike down New York’s public carry restrictions after finding that no similar laws existed at the time of the founding.
