Charles Tyler (George Washington University - Law School) has posted Genealogy in Constitutional Law on SSRN. Here is the abstract:
Genealogy is a form of argument that seeks to discredit social phenomena by exposing their pernicious ancestry. In recent years, the U.S. Supreme Court has used genealogy to undermine key provisions of written law, doctrinal rules, longstanding practices, and private conduct in cases involving a wide range of constitutional issues. After comprehensively documenting this development, this Article contends that genealogy can advance conclusions within several widely recognized modalities of constitutional interpretation. More specifically, genealogy can be used to undermine assertions of authority implicit in arguments from precedent, tradition, and ethos. And it can be used to reveal its object's function in ways that are relevant to arguments from text, consequences, and history. The Article then suggests some improvements to the current allocation of institutional responsibility in evaluating genealogical arguments. Presently, genealogical arguments tend to surface for the first time in the opinions of appellate courts-often the Supreme Court. This is unfortunate because genealogy often depends on idiosyncratic and nuanced inquiries of historical fact, which appellate courts are poorly equipped to conduct. A better approach would be for trial courts to have primary responsibility for judicial factfinding relevant to genealogical critiques of laws, rules, and practices.
Highly recommended.
