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Friday, March 29, 2024

DeGirolami on Traditionalism

A nice op-ed from my friend Marc DeGirolami on traditionalism, in the New York Times, which I was happy to see gave him enough space to decently lay out his view. Although the topic is not especially timely (I mean that in a good way, on the whole! "Timeliness" is an overrated and distorting quality.), he finds a nice hook by contrasting it with recent statements by Stephen Breyer and Kevin Newsom.

Normally I would say "Don't read the comments," which is the prevailing rule for sensible people everywhere. (And one that adds a sizeable question mark to claims about the democratizing discursive value of social media.) In this case I violated the rule and found it instructive. Of course there is a good deal of inanity. But much of that lay inanity reproduces exactly what ostensibly more educated and elite people who are actually in the law game have been doing for the last several years, in the time-honored tradition of fighting the last war: They give lip service to "traditionalism" or "history and tradition" up front, suggest they will be talking about it in what follows, and then proceed to criticize originalism in great detail. (Although Marc was early to this iteration of legal traditionalism, some scholars have actually started writing interesting articles about traditionalism that are actually about traditionalism, viz. recent pieces by Sherif Girgis, Felipe Jiménez, and Larry Solum. These are the exceptions.) Or they make what they think are the killer arguments against traditionalism--pointing to bad past practices or traditions--without acknowledging that most of them were addressed firmly and rightly by the Civil War Amendments and other constitutional amendments, which are an appropriate way to entrench the societal recognition that some traditions must change; others were killed in the way that bad traditions are, by the accretion of time and practice, a possibility that Mark recognizes more than once in the piece itself; and others may be constitutional but need not be enacted or practiced. (The preponderance of the remaining comments simply adopt the expedient of talking about something else.) 

You need not take any of this as an endorsement of traditionalism as a constitutional practice. I do think however that whether it is a full-on, name-in-neon-lights modality or not, accounting for and invoking tradition is not new (many of our most celebrated First Amendment decisions, for example, engage at least for rhetorical purposes in the invocation and celebration of real or fictive traditions), is probably inevitable, and happens even in the most lively of living traditionalist opinions. And I think Marc has done a valuable job in naming (or renaming) the practice. But I reserve further judgment. What I would like to see, even in a short-ish op-ed and certainly in his book, where I'm sure it will appear, is a deeper dive into all sorts of questions, such as:

  • Is it relevant if a tradition is "invented"--that is, it purports to trace back to the misty past but is in fact of far more modern vintage?
  • Is traditionalism as a legal practice one that yields judicially manageable standards, assuming these to be desirable?
  • Is there anything to be said from a constitutional comparativist perspective about traditionalism as a constitutional practice? If we are mostly alone in using it, why is that, beyond its obvious current political uses? Is it a cultural matter, a legal-cultural matter, a function of stronger and more cohesive national cultures and practices in those nations, or a function of the relative youth of most other constitutions, which effectively start from a baseline of the state of "tradition" in those countries at the time of entrenchment of those constitutions, even if they do not speak in those terms and won't for another few decades?
  • How much is traditionalism as a legal practice merely about legal "traditions?" How much should it be about cultural traditions more generally? To the extent the latter are involved, how good or bad are judges at identifying those? To the extent they're not, does it render traditionalism as a legal practice somewhat desiccated, and miss much of what really matters in thinking about constitutional law's connection to our values and practices?
  • More generally, is traditionalism a legal and/or judicial skill? If so, what does it involve? How can it be cultivated or taught? Is it yet another mode of interpretation, like originalism or reliance on theories of justice, that takes judges away from their actual, common-law-like, area of greatest competence, and thus questionable, even if "true," as a judicial practice? Or is it closer to their competence because a sense of tradition is one of the qualities that marks common-law judging?
  • What does bad or sloppy legal traditionalism look like? What does excellence in legal traditionalism look like?
  • What is the appropriate political response to traditionalist decisions? When political majorities reject a traditionalist ruling as hidebound and out-of-date, and thus pass laws rejecting those traditional practices (or lack-of-practices), shouldn't this be celebrated by legal traditionalists, on the whole? Isn't it an as-yet under-discussed virtue of traditionalism that it shifts power and impetus to the political process, where a more pluralistic society can then examine and possibly repudiate our nation's "traditions?" If so, is there a difference between Dobbs, which purports to allow the people to pass laws protecting abortion, and Bremerton or Bruen, which entrench particular practices against legal regulation?
  • If the latter practices fall into desuetude for long enough, is it proper traditionalism for a court, even in the absence of a constitutional amendment, eventually to rule that they are no longer constitutional, even though some people or jurisdictions still engage in that practice? How does one go about making that argument and identifying that state of affairs?    
  • Are the current justices good or bad at traditionalism? If critics, however substantively and politically motivated they may be, come up with sound evidence that the history and traditions identified by a majority of the Court in a case like Dobbs are inaccurate in important ways, should traditionalist lawyers and scholars, however substantively and politically motivated some of them may be, openly criticize those opinions for their poor work? If they don't, or fail to at least address that evidence in their work (after all, why should we outsiders take the Justices' word for it when they describe legal traditions?), is there a problem with the state of traditionalism as a legal and scholarly practice?
  • What did rights-favoring scholars who are currently ill-disposed towards traditionalism say about it when cases like Stevens and Alvarez, which invoke traditionalism in a way that is favorable toward free speech and uses it to guard against new categories of "low-value speech," were issued? Did they criticize or reject it there? Did they instead applaud it, or conveniently ignore it? 
  • Are Bremerton, which is discussed in the op-ed, and the American Legion and Town of Greece decisions, which are not, examples of good or bad traditionalism? I'm not sure where in tradition Justice Gorsuch, writing in Bremerton, came up with his seeming requirement that students not "feel pressured" to participate, or the importance of the fact that he did not lead prayers with the team, or his bog-standard-liberalism assertion that "[r]espect for religious expressions is indispensable to life in a free and diverse [r]epublic." (Others have asked exactly what high school football games, or even public high schools, have to do with American "traditions." I'm not sure how strong that criticism is, but it at least suggests that traditionalism, like all other methods of constitutional interpretation, has a level-of-generality problem.) I'm not sure where in tradition Justice Alito, in American Legion, found a requirement that a monument not disparage others, or whether Justice Kavanaugh's concurrence attempting to find judicially manageable principles for Establishment Clause cases going forward should be understood as an utterly non-traditionalist opinion. I'm not sure where in tradition Justice Kennedy, who begins his First Amendment analysis in Town of Greece with the words, "[I][t is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted," found the perfectly reasonable rules of etiquette he constitutionalized later in the opinion. And of course, outside the Establishment Clause, there are what we might think of as the saving provisions in Heller, which ought still to exist after Bruen. Surely those were about policy, not tradition.) Are these bad traditionalist opinions because they came up with sensible qualifications but didn't link them to tradition, and certainly not in any serious, evidence-based way? Are they good traditionalist opinions because good traditionalism, like any good method in constitutional law, must be employed--and adulterated--with a healthy measure of unprincipled Posnerian prudence, pragmatism, and consequentialist? If so, and if such adulteration makes "traditionalism" as practiced by judges look a little ridiculous, does it place it on any worse footing than living constitutionalism, which arguably is most justifiable and acceptable as a judicial practice when its liveliness is connected to--and at least somewhat hobbled by--our ties to, and the constraints of, our (evil, undemocratic, etc., etc., etc.) past, rather than being unbound in its responsiveness and justice-seeking? Or originalism, which is most reasonable when somewhat hobbled by settled precedent?
  • This may not be aimed at traditionalism in particular, but more generally at modern approaches to constitutional interpretation in the U.S. After years of mocking the three-part and four-factor tests of the Burger (especially) and Rehnquist Courts, do the little qualifications and caveats in some of these opinions serve as a reminder that we may have moved to the opposite extreme, and that it may be time for a little more appreciation and revival of those former elements of judicial decision-making, which are both made-up and, in theory, conducive to judicial manageability?
  • A related point: In what I think is the only useful element to be taken from the "teaching constitutional law is in crisis" assertions, how exactly does one teach--and, especially, evaluate--law students with respect to traditionalism? The same thing applies to originalism, granted, but it certainly applies to traditionalism. Does one hand students an issue-spotting question and then offer a forty-page historical appendix? (In fairness, the point is not limited to originalism or traditionalism. It's just conspicuous because of the novelty. Con law professors may pretend that students are perfectly capable of engaging in proportionality review or rights-balancing or some other form of Goldilocks-ish policy analysis or comparison of incommensurables on law school exams because we've been used to it; that doesn't make it so.)

I could go on. It's still a good op-ed, and far better than most of this kind at giving readers useful information and tools, including the tools to criticize the approach, while avoiding high degrees of advocacy, naked or otherwise. I've enjoyed Marc's work on traditionalism so far and very much look forward to his book. I do think many constitutional law professors continue to engage in an odd, perhaps unconscious pivot in which they quote judicial language concerning "history and tradition" and then start recycling old criticisms of originalism and thus render their work quite unresponsive to the current Court and the methods it is purporting to shape and use. But the study of traditionalism as a scholarly endeavor, whether by supporters or opponents, should certainly now move from identification to serious internal and external critique. Nothing is so useful or commendable, once you've identified or created a good proposal and let it loose into the world, as turning back around and setting your gunsights on it.  

Posted by Paul Horwitz on March 29, 2024 at 01:51 PM in Paul Horwitz | Permalink


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