The attention given to our current battle between democracy and authoritarian government and the individuals involved kind of takes the oxygen out of the room when discussing current events. Also, it will all be behind us after the 2024 elections. And that will be another story for another day. However, the one long on-going discussion that transcends the political affairs, is the Supreme Court (which itself is admittedly mired in politics, as well). Thus, we have the argument on the purpose and guidance of the US Constitution; originalist or a more liberal interpretation. Do we stay stuck in time forever, or do we evolve to meet the challenges brought upon us by change. For centuries, it was common thought and practice to believe the world is flat. More recently in time, we have accepted the fact that the world is round, and adapted to that fact.
GUEST ESSAY
Something Other Than Originalism Explains This Supreme Court
March 29, 2024
Mr. De Girolami is a law professor at the Catholic University of America. He is writing a book about traditionalism in constitutional law.
It is a sign of the polarizing nature of the current Supreme Court that even knowledgeable critics of its opinions make diametrically opposed arguments.
This week, for example, the former Supreme Court justice Stephen Breyer, in a new book, "Reading the Constitution," chides the current court's approach to the law, which he says fixates on the text of the Constitution and attaches too much significance to the meanings of its provisions at the time they were ratified. If only, Justice Breyer urges, justices would soften this "originalist" approach and take into account how "our values as a society evolve over time" — including by respecting the "longstanding practice" of the court and other organs of government.
Justice Breyer's criticism follows on the heels of that of another judge, Kevin Newsom of the U.S. Court of Appeals for the 11th Circuit. In a talk last month at Harvard Law School, Judge Newsom made the opposite argument: He criticized the Supreme Court, when considering matters such as handgun regulation and abortion rights, for being insufficiently faithful to originalism and overly attuned to social practices that occurred or continued after constitutional ratification. Such traditions, he warned, "have no demonstrable connection to the original, written text."
The current Supreme Court is the object of considerable controversy and confusion. To understand its decisions properly, especially over the past three or four years, the key is to realize that each critic is half right. Justice Breyer is right that the Constitution should be interpreted, in part, in light of practices that persisted after its ratification, but wrong to think that the current court is not doing this. Judge Newsom is right that the current court is doing this, but wrong to think that it should not be.
This court is conventionally thought of as originalist. But it is often more usefully and accurately understood as what I call "traditionalist": In areas of jurisprudence as various as abortion, gun rights, free speech, religious freedom and the right to confront witnesses at trial, the court — led in this respect by Justices Samuel Alito, Clarence Thomas and Brett Kavanaugh — has indicated time and again that the meaning and law of the Constitution is often to be determined as much by enduring political and cultural practices as by the original meaning of its words.
The fact that the Supreme Court seems to be finding its way toward an open embrace of traditionalism should be broadly celebrated. To be sure, the court's traditionalism has played a role in many decisions that have been popular with political conservatives, such as the Dobbs ruling in 2022 that overturned Roe v. Wade. But it is not a crudely partisan method. Justice Sonia Sotomayor, an Obama nominee, has used it in a decision for the court — and Justice Amy Coney Barrett, a Trump nominee, has expressed some skepticism about it.
Traditionalism may not be partisan, but it is political: It reflects a belief — one with no obvious party valence — that our government should strive to understand and foster the common life of most Americans. The Supreme Court has relied on traditionalism to good effect for many decades, though the justices have seldom explicitly acknowledged this. Traditionalism should be favored by all who believe that our legal system ought to be democratically responsive, concretely minded (rather than abstractly minded) and respectful of the shared values of Americans over time and throughout the country.
To get a better sense of what traditionalism is, it is useful to compare it with the two dominant approaches to constitutional interpretation in adjudication: originalism and what is often called "living constitutionalism."
Sometimes the Constitution's words are not clear and their application to a particular issue is also unclear. Consider the line "Congress shall make no law respecting an establishment of religion," from the First Amendment. Judges face choices about how to determine what exactly Congress (and today, by extension, the states) is being forbidden from doing.
One option is to discern the meaning that those words would have had at the time of their adoption, using ratification-era dictionaries, contemporary documents by learned authorities, databases of usage, other linguistic and legal sources and perhaps activities closely confined to the founding period. That is originalism.
Another option is to understand those words by recourse to a high ideal or abstraction. For example, a judge might take that passage of the First Amendment to reflect a principle of separation of church and state and then apply that principle in light of the judge's moral views or perceptions of contemporary moral standards in the case at hand. That is living constitutionalism.
Traditionalism offers a third option. Here, one would look at specific political and cultural practices — the activities of the organs of government and of individuals and groups across the country over long periods of time — to help determine constitutional meaning and law. For example, one might observe that the practice of legislative prayer (prayer that opens legislative assemblies) was pervasive long before and at the time of the First Amendment's ratification, and that it continued for centuries afterward. For that reason, one would conclude that legislative prayer is unlikely to violate the prohibition against an "establishment of religion."
The intuition is straightforward: It would be odd to think that the Establishment Clause of the First Amendment prohibits legislative prayer if legislative prayer was widely practiced before, during and for centuries after ratification. Were we supposed to put a stop to a practice many showed no sign of wanting to stop, and indeed, that a great many people were eager to continue and did continue? Sometimes, yes, moral reflection or changed circumstance prompts a re-evaluation of our practices. But in general, we do what we mean and we mean what we do, and constitutional law takes its shape accordingly.
In its 2021-2022 term, traditionalism was the Supreme Court's preferred method in a number of high-profile cases. Consider New York State Rifle and Pistol Association v. Bruen, a 2022 decision that concerned a New York law that strictly limited the carrying of guns outside the home. Justice Thomas, writing for the majority, held that New York's requirement to demonstrate a "special need for self-protection" before the state would issue a handgun permit for self-defense outside the home violated the Second Amendment.
The "historical tradition" of handgun regulation, Justice Thomas argued, established the limits of the right to keep and bear arms. He noted that the practices of regulation "from before, during and even after the founding" of the United States indicated "no such tradition in the historical materials," which suggested that a long, unbroken line of tradition, stretching from medieval England to early 20th century America, was at odds with New York's law. The opinion granted the existence of scattered 19th-century regulations akin to New York's, but argued that these were dwarfed by the dearth of analogous traditions of gun regulation over time and across state and local communities.
One can see a similar traditionalist approach in Dobbs, where Justice Alito, writing for the court, examined the government practices of abortion regulation before, during and after ratification of the 14th Amendment, concluding that there is no constitutional right to abortion in part because there is "an unbroken tradition of prohibiting abortion" that persisted "from the earliest days of the common law until 1973."
Likewise, in Kennedy v. Bremerton School District, the Supreme Court decided in 2022 that a public school football coach who prayed on the field after games was not in violation of the Establishment Clause by holding, in an opinion by Justice Neil Gorsuch, that this was not analogous to prayer practices long considered Establishment Clause violations. And in the unanimously decided case Houston Community College System v. Wilson, the court in 2022 held that "long settled and established practice" determined that elected bodies do not violate their members' freedom of speech when they censure one of their members.
For some critics, the invocation of "tradition" sets off alarm bells. After all, our country looks very different today, demographically and otherwise, than it did hundreds of years ago, when political power was held by relatively few and denied to others for illegitimate reasons. These critics ask how well traditionalism deals with the contemporary realities of American democracy.
The answer to this legitimate question is: Compared to what? Consider again originalism and living constitutionalism. These approaches, different as they are from each other, are both suited to elite actors working at the nerve centers of legal and political power. Both depend on the preferences and findings of the legal professional class. Originalism privileges the centuries-old writings of illustrious figures of the founding or Reconstruction era as determined by today's most brilliant legal historians and theorists. Living constitutionalism privileges the high ideals of today's most prominent academics and judges.
Traditionalism, by contrast, looks to the ordinary practices of the American people across time and throughout the country. In democracies, people obey the law because they believe it is legitimate, and the law acquires legitimacy when the people believe they have had a hand, direct or indirect, in shaping it. True, the practices of "the people" may be repudiated or upended — no political tradition is perfect — but while they endure, their origin in popular sovereignty is a presumptive reason to preserve them.
Tradition, in the law and elsewhere, illuminates a basic fact of human life: We admire and want to unite ourselves with ways of being and of doing that have endured for centuries before we were born and that we hope will endure long after we are gone. At its core, this is what constitutional traditionalism is about: a desire for excellence, understood as human achievement over many generations and in many areas of life, that serves the common good of our society.
Not all traditions are worthy of preservation. Some are rightly jettisoned as the illegitimate vestiges of days gone by. But many, and perhaps most, deserve our solicitude and need a concerted defense.
Traditions can be fragile things. To the extent that a revitalized practice of constitutional interpretation is possible, it will depend on determining the content of the Constitution with an eye to their sustenance and restoration.
-- This week, for example, the former Supreme Court justice Stephen Breyer, in a new book, "Reading the Constitution," chides the current court's approach to the law, which he says fixates on the text of the Constitution and attaches too much significance to the meanings of its provisions at the time they were ratified. If only, Justice Breyer urges, justices would soften this "originalist" approach and take into account how "our values as a society evolve over time" — including by respecting the "longstanding practice" of the court and other organs of government.
Justice Breyer's criticism follows on the heels of that of another judge, Kevin Newsom of the U.S. Court of Appeals for the 11th Circuit. In a talk last month at Harvard Law School, Judge Newsom made the opposite argument: He criticized the Supreme Court, when considering matters such as handgun regulation and abortion rights, for being insufficiently faithful to originalism and overly attuned to social practices that occurred or continued after constitutional ratification. Such traditions, he warned, "have no demonstrable connection to the original, written text."
The current Supreme Court is the object of considerable controversy and confusion. To understand its decisions properly, especially over the past three or four years, the key is to realize that each critic is half right. Justice Breyer is right that the Constitution should be interpreted, in part, in light of practices that persisted after its ratification, but wrong to think that the current court is not doing this. Judge Newsom is right that the current court is doing this, but wrong to think that it should not be.
This court is conventionally thought of as originalist. But it is often more usefully and accurately understood as what I call "traditionalist": In areas of jurisprudence as various as abortion, gun rights, free speech, religious freedom and the right to confront witnesses at trial, the court — led in this respect by Justices Samuel Alito, Clarence Thomas and Brett Kavanaugh — has indicated time and again that the meaning and law of the Constitution is often to be determined as much by enduring political and cultural practices as by the original meaning of its words.
The fact that the Supreme Court seems to be finding its way toward an open embrace of traditionalism should be broadly celebrated. To be sure, the court's traditionalism has played a role in many decisions that have been popular with political conservatives, such as the Dobbs ruling in 2022 that overturned Roe v. Wade. But it is not a crudely partisan method. Justice Sonia Sotomayor, an Obama nominee, has used it in a decision for the court — and Justice Amy Coney Barrett, a Trump nominee, has expressed some skepticism about it.
Traditionalism may not be partisan, but it is political: It reflects a belief — one with no obvious party valence — that our government should strive to understand and foster the common life of most Americans. The Supreme Court has relied on traditionalism to good effect for many decades, though the justices have seldom explicitly acknowledged this. Traditionalism should be favored by all who believe that our legal system ought to be democratically responsive, concretely minded (rather than abstractly minded) and respectful of the shared values of Americans over time and throughout the country.
To get a better sense of what traditionalism is, it is useful to compare it with the two dominant approaches to constitutional interpretation in adjudication: originalism and what is often called "living constitutionalism."
Sometimes the Constitution's words are not clear and their application to a particular issue is also unclear. Consider the line "Congress shall make no law respecting an establishment of religion," from the First Amendment. Judges face choices about how to determine what exactly Congress (and today, by extension, the states) is being forbidden from doing.
One option is to discern the meaning that those words would have had at the time of their adoption, using ratification-era dictionaries, contemporary documents by learned authorities, databases of usage, other linguistic and legal sources and perhaps activities closely confined to the founding period. That is originalism.
Another option is to understand those words by recourse to a high ideal or abstraction. For example, a judge might take that passage of the First Amendment to reflect a principle of separation of church and state and then apply that principle in light of the judge's moral views or perceptions of contemporary moral standards in the case at hand. That is living constitutionalism.
Traditionalism offers a third option. Here, one would look at specific political and cultural practices — the activities of the organs of government and of individuals and groups across the country over long periods of time — to help determine constitutional meaning and law. For example, one might observe that the practice of legislative prayer (prayer that opens legislative assemblies) was pervasive long before and at the time of the First Amendment's ratification, and that it continued for centuries afterward. For that reason, one would conclude that legislative prayer is unlikely to violate the prohibition against an "establishment of religion."
The intuition is straightforward: It would be odd to think that the Establishment Clause of the First Amendment prohibits legislative prayer if legislative prayer was widely practiced before, during and for centuries after ratification. Were we supposed to put a stop to a practice many showed no sign of wanting to stop, and indeed, that a great many people were eager to continue and did continue? Sometimes, yes, moral reflection or changed circumstance prompts a re-evaluation of our practices. But in general, we do what we mean and we mean what we do, and constitutional law takes its shape accordingly.
In its 2021-2022 term, traditionalism was the Supreme Court's preferred method in a number of high-profile cases. Consider New York State Rifle and Pistol Association v. Bruen, a 2022 decision that concerned a New York law that strictly limited the carrying of guns outside the home. Justice Thomas, writing for the majority, held that New York's requirement to demonstrate a "special need for self-protection" before the state would issue a handgun permit for self-defense outside the home violated the Second Amendment.
The "historical tradition" of handgun regulation, Justice Thomas argued, established the limits of the right to keep and bear arms. He noted that the practices of regulation "from before, during and even after the founding" of the United States indicated "no such tradition in the historical materials," which suggested that a long, unbroken line of tradition, stretching from medieval England to early 20th century America, was at odds with New York's law. The opinion granted the existence of scattered 19th-century regulations akin to New York's, but argued that these were dwarfed by the dearth of analogous traditions of gun regulation over time and across state and local communities.
One can see a similar traditionalist approach in Dobbs, where Justice Alito, writing for the court, examined the government practices of abortion regulation before, during and after ratification of the 14th Amendment, concluding that there is no constitutional right to abortion in part because there is "an unbroken tradition of prohibiting abortion" that persisted "from the earliest days of the common law until 1973."
Likewise, in Kennedy v. Bremerton School District, the Supreme Court decided in 2022 that a public school football coach who prayed on the field after games was not in violation of the Establishment Clause by holding, in an opinion by Justice Neil Gorsuch, that this was not analogous to prayer practices long considered Establishment Clause violations. And in the unanimously decided case Houston Community College System v. Wilson, the court in 2022 held that "long settled and established practice" determined that elected bodies do not violate their members' freedom of speech when they censure one of their members.
For some critics, the invocation of "tradition" sets off alarm bells. After all, our country looks very different today, demographically and otherwise, than it did hundreds of years ago, when political power was held by relatively few and denied to others for illegitimate reasons. These critics ask how well traditionalism deals with the contemporary realities of American democracy.
The answer to this legitimate question is: Compared to what? Consider again originalism and living constitutionalism. These approaches, different as they are from each other, are both suited to elite actors working at the nerve centers of legal and political power. Both depend on the preferences and findings of the legal professional class. Originalism privileges the centuries-old writings of illustrious figures of the founding or Reconstruction era as determined by today's most brilliant legal historians and theorists. Living constitutionalism privileges the high ideals of today's most prominent academics and judges.
Traditionalism, by contrast, looks to the ordinary practices of the American people across time and throughout the country. In democracies, people obey the law because they believe it is legitimate, and the law acquires legitimacy when the people believe they have had a hand, direct or indirect, in shaping it. True, the practices of "the people" may be repudiated or upended — no political tradition is perfect — but while they endure, their origin in popular sovereignty is a presumptive reason to preserve them.
Tradition, in the law and elsewhere, illuminates a basic fact of human life: We admire and want to unite ourselves with ways of being and of doing that have endured for centuries before we were born and that we hope will endure long after we are gone. At its core, this is what constitutional traditionalism is about: a desire for excellence, understood as human achievement over many generations and in many areas of life, that serves the common good of our society.
Not all traditions are worthy of preservation. Some are rightly jettisoned as the illegitimate vestiges of days gone by. But many, and perhaps most, deserve our solicitude and need a concerted defense.
Traditions can be fragile things. To the extent that a revitalized practice of constitutional interpretation is possible, it will depend on determining the content of the Constitution with an eye to their sustenance and restoration.
****
Juan Matute
(New link as of 29 March - click on it)
― The Lincoln Project
― The Lincoln Project
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