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  "path": "/2026/07/bayefsky-on-tradition-and-feminism-in.html",
  "publishedAt": "2026-07-03T04:30:00.000Z",
  "site": "https://legalhistoryblog.blogspot.com",
  "tags": [
    "Tradition and Feminism in Constitutional Rights Adjudication"
  ],
  "textContent": "**Rachel Bayefsky, UVA Law** , has published Tradition and Feminism in Constitutional Rights Adjudication in the _Virginia Law Review_ :\n\n> In recent years, “tradition” has been influentially invoked in constitutional rights adjudication and legal scholarship. The Supreme Court, in contexts ranging from abortion to the Second Amendment to freedom of speech, has looked to tradition to illuminate the contours of constitutional rights and the boundaries of permissible government regulation. Some legal theorists have defended “traditionalism” as a way to tether constitutional rulings to the people’s customs instead of judges’ moral views.\n>\n> From a feminist perspective, the rise of tradition may be cause for concern, if not alarm. Why integrate into constitutional rights adjudication the practices and understandings of eras in which women were subject to severe political, economic, and social subordination? Yet the relationship between feminism and traditionalism depends on the form that traditionalism takes: what it is, how it is justified, and how it responds to moral critique.\n>\n> This Article unpacks the idea of tradition, and it investigates the interaction between tradition and women’s rights in constitutional law. I argue that a concern for tradition, properly understood, contains resources to guide an approach toward constitutional adjudication that can be conducive to, rather than hostile to, women’s rights. For example, traditionalists often seek to glean insight from concrete experience rather than relying on abstract principles; they should therefore examine a range of experiences, including those of women. And the traditionalist interest in continuity supports acceptance of the last century’s advancements in women’s rights rather than attempts to “roll back the clock.”\n>\n> Thus, values integral to traditionalism can support positions favorable to women’s rights. I apply this view of tradition to several constitutional questions, including the right to contraception, the permissibility of public single-sex education, pregnancy discrimination, and the scope of the Equal Protection Clause. I also engage in broader reflection about the determinacy of traditionalist analysis and the relationship between traditionalist reasoning and moral evaluation.\n\n--Dan Ernst",
  "title": "Bayefsky on Tradition and Feminism in Constitutional Adjudication",
  "updatedAt": "2026-07-03T04:30:00.119Z"
}