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32 Harv. J. L. & Pub. Pol'y 193 (2009)


The Rehnquist and Roberts Courts have inaugurated a golden age for tradition-based arguments in constitutional law. All of the Justices consider such arguments, and several are amateur historians who have centered their jurisprudence on what constitutional traditions require of us today. Such arguments are the primary legal basis for whole areas of constitutional law, including presidential powers, state immunity, anti-commandeering limits on congressional authority, and the rights to privacy, to keep and bear arms, to habeas corpus, and to be free of cruel and unusual punishment. Other areas of constitutional law, such as equal protection and free speech, are not dominated by these arguments today but might be in the future.

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