That’s this new paper, which I’ve just posted, and accompanies this earlier paper discussing the nature of traditionalist interpretation. Here’s the abstract of the newer piece (comments welcome):
“Traditionalist constitutional interpretation takes political and cultural practices of long age and duration as constituting the presumptive meaning of the text. This essay probes traditionalism’s conceptual and normative foundations. It focuses on the Supreme Court’s traditionalist interpretation of the First Amendment to understand the distinctive justifications for traditionalism and the relationship between traditionalism and originalism. The first part of the essay identifies and describes traditionalism in some of the Court’s Speech and Religion Clause jurisprudence, highlighting its salience in the Court’s recent Establishment Clause doctrine.
Part II develops two justifications for traditionalism: “interpretive” and “democratic-populist.” The interpretive justification is that enduring practices presumptively inform the meaning of the words that they instantiate. Generally speaking, we do what we mean, and we mean what we do. The democratic-populist justification is that in a democracy, people who engage in practices consistently and over many years in the belief that those practices are constitutional have endowed them practices with political legitimacy. Courts owe the people’s enduring practices substantial deference as presumptively constitutional. The populist element in this justification is that traditionalism is a defensive interpretive method against what abstract principle in the hands of elite actors has wrought: intolerance, the corrosion of lived experience, and the distortion of text to mirror a particular class of contemporary moral and political views.
In Part III, this essay compares traditionalism with originalism, reaching two conclusions. First, traditionalism’s reliance on practices as presumptively constitutive of constitutional meaning is most distant from originalist theories that rely on abstract principle as constituting the meaning of text and that reject practice-based evidence as the equivalent of irrelevant “expected applications.” It is closest to varieties of originalism that read text concretely. Yet traditionalist judges are not engaged in making guesses about “expected applications,” but in making decisions about retrospective applications—drawing on old and enduring practices either to include within, or exclude from, a tradition the specific practice under review. Second, the essay investigates the connection between so-called “original law” theories of originalism and traditionalism. Original law theorists argue that originalism is “our law” as a sociological and cultural fact. But traditionalism may be more “our law” than originalism in some areas within the First Amendment and outside it. If the positivist defense of originalism truly counts as a justification for any theory of constitutional interpretation (an issue on which this essay takes no position), then it may support traditionalism as much as originalism.”
Conventional wisdom portrays Metternich, the Austrian foreign minister who dominated Europe after the defeat of Napoleon, as an arch-reactionary. And that seems basically right. Metternich opposed liberal nationalism and was an architect of the Holy Alliance, which attempted to defeat Revolutionary ideas in Europe through Christian values, including the divine right of kings. A forthcoming biography from Harvard, Metternich: Strategist and Visionary, by Wolfram Siemann (Ludwig Maximilian University of Munich) argues, though, that in fact Metternich was a progressive visionary. Readers can judge for themselves. Here’s the description from the Harvard website:
A compelling new biography that recasts the most important European statesman of the first half of the nineteenth century, famous for his alleged archconservatism, as a friend of realpolitik and reform, pursuing international peace.
Metternich has a reputation as the epitome of reactionary conservatism. Historians treat him as the archenemy of progress, a ruthless aristocrat who used his power as the dominant European statesman of the first half of the nineteenth century to stifle liberalism, suppress national independence, and oppose the dreams of social change that inspired the revolutionaries of 1848. Wolfram Siemann paints a fundamentally new image of the man who shaped Europe for over four decades. He reveals Metternich as more modern and his career much more forward-looking than we have ever recognized.
Clemens von Metternich emerged from the horrors of the Revolutionary and Napoleonic wars, Siemann shows, committed above all to the preservation of peace. That often required him, as the Austrian Empire’s foreign minister and chancellor, to back authority. He was, as Henry Kissinger has observed, the father of realpolitik. But short of compromising on his overarching goal Metternich aimed to accommodate liberalism and nationalism as much as possible. Siemann draws on previously unexamined archives to bring this multilayered and dazzling man to life. We meet him as a tradition-conscious imperial count, an early industrial entrepreneur, an admirer of Britain’s liberal constitution, a failing reformer in a fragile multiethnic state, and a man prone to sometimes scandalous relations with glamorous women.
Hailed on its German publication as a masterpiece of historical writing, Metternich will endure as an essential guide to nineteenth-century Europe, indispensable for understanding the forces of revolution, reaction, and moderation that shaped the modern world.