They’re using history, said Scarffe, to do what judicial philosophy long has not: remove judgment from judging. This can be used to kill a lot of good laws, considering many of them did not exist at the nation’s founding. “Rather, it asked whether a constitutional right to abortion was deeply rooted in the nation’s history and tradition. Scarffe argues that it’s hard to escape the conclusion that this is the point very point of employing the history test. “First, if we take the history and tradition test to its logical conclusion, more than just abortion rights are at stake.