Over at the Library of Law and Liberty, I am guest blogging for the month of
January and writing a series of posts that I’m calling collectively “Law and Tradition,” a set of reflections on the relationship of tradition and traditional legal methods and approaches to judicial decision making. My hope is that these posts will offer an introductory set of questions, thoughts, and provocations that can serve as a prologue for further study and reflection for our Center’s Tradition Project (more details about this shortly).
Here is my first post, Tradition and the Constitutional Curator. A bit from the beginning:
It is uncommon today for people to argue for the retrieval of the beliefs and institutions of prior periods once they have been set aside. Even those few who do are not usually sanguine about the odds of retrieval. Particularly in intellectual circles, it takes a certain degree of rash temerity to make such arguments—and to risk the label of traditionalism or even reaction—in light of the overwhelming intellectual prejudices in favor of progress. Even the view that things ought to be maintained as they are, or as they have been until the very recent past, is generally discounted as benighted. Things ought to be changed—tinkered with or even substituted, but always improved.
In law, the normative force of traditionality is supremely out of vogue. It is generally believed to offer almost no resistance to arguments proceeding on the assumptions of the prevailing intellectual movements—those inclined toward efficiency, autonomy, equality, identity, rationality, and technocracy, for example. But the moral and cultural power of a past practice, arrangement, or belief, just in virtue of its endurance and past-ness, has dwindled to the vanishing point.
Can these statements be defended at a time when, in constitutional law, originalism has achieved an unprecedented degree of legitimacy? It is true that interest in history seems to be as high as it ever has been in constitutional law and scholarship. Yet here it may be helpful to distinguish between the desire to contemplate an ancient text in search of an abstract value or principle which can be applied in pure form to contemporary circumstances, and the commitment to tend and maintain the institutions of the past as an enduring continuity and a sustained reflection of a society’s legal customs and dispositions. The tradition-minded constitutionalist will be interested not only, and not primarily, in the fixed meaning of words at the period of their writing, but also, and much more, in the coherence and continuity of those meanings with the patterns, dispositions, and customs long before and after the writing. And he will want to apply the insight that Edward Shils once articulated about moral character to constitutional character: “Stable, well-formed characters are not their own creation, however large the part of deliberate self-discipline in their conduct. Their stability is the unshaken dominion of the pattern acquired in the past.”