I’m greatly looking forward to participating in an upcoming online symposium, “The Religious Freedom Restoration Act at 30,” sponsored by Emory’s Center for the Study of Law and Religion. I’ll present a paper on how the rise of the Nones will put pressure on the concept of religious exemptions. Details here. Register to listen in!
I have posted a new essay, Establishment as Tradition, forthcoming in the Yale Law Journal Forum. It brings together two things I have been thinking about only separately to date: what binds a political community, and what fosters mutual trust and forbearance within it, in its “establishments,” apart from whatever “establishments of religion” may be forbidden in our polity; and traditionalism’s civic character-forming qualities. Comments from interested readers are welcome, as the piece is still a draft. Here is the abstract:
Traditionalism is a constitutional theory that focuses on concrete political and cultural practices, and the endurance of those practices before, during, and after ratification of the Constitution, as the presumptive determinants of constitutional meaning and constitutional law. The Supreme Court has long interpreted traditionally but now says explicitly that it uses a method of “text, history, and tradition” in several areas of constitutional law. Foremost among these is the Establishment Clause. This Essay examines two questions about traditionalism, both of which concern the Establishment Clause in distinct but related ways. First, why has traditionalism had special salience in this area? Second, is traditionalism more a mood or disposition than a theory, more a matter of the heart than of the head?
On the first matter, traditionalism did not materialize out of thin air in the 2021 term, and it has had unusual power in the interpretation of the Establishment Clause for decades. The question is why, and answering it has implications for constitutional theory more generally. For if some domains of constitutional law are more amenable than others to traditionalist interpretation, the same may be true of other theories. The answer for the Establishment Clause is that establishments are made up of politically foundational traditions. Political establishments are constituted by the concrete, authoritative, and enduring practices and institutions that make up the essential settlements of a polity. To interpret the phrase, “Congress shall make no law respecting an establishment of religion,” is immediately to be directed by the text not to an idea or an abstraction, but to something solid, authoritative, and lasting—“an establishment.” This is a reading supported by the other uses of “establishment” and its cognates in the Constitution. “An establishment of religion,” therefore, is a political practice that sits outside the limits of the constitutionally permissible practices of American political establishment. Unconstitutional establishments of religion depend upon the prior existence of constitutional establishments, and those establishments are often instantiated in a people’s most powerful political traditions. More than certain other domains of constitutional law, the text of the Establishment Clause is inherently traditionalist because its meaning takes shape against a network of concrete, authoritative, and enduring institutional, political practices. And the practices of establishment are essential to fostering the civic trust that is necessary for any polity’s survival. Without them, the political community fractures. In time, it dies.
As for the second question, some critics have argued that traditionalism is not a full-fledged theory so much as a mood or disposition, and that traditions are too manipulable and insubstantial to form the raw material for a theory of constitutional meaning or constitutional law. The question matters because it concerns whether traditionalism is an independent constitutional theory in its own right or instead at most a feature of others, dependent on their methods and justifications. I will argue that traditionalism is as much a constitutional theory as any of its rivals, though that claim will depend on just what it means to count as a theory. It is, in fact, its application in Establishment Clause cases that most clearly demonstrates its comparative systematicity, generality, and predictability of application, three critical elements for qualifying as a constitutional theory. Traditionalism is, to be sure, not a decisional algorithm, but neither is any attractive constitutional theory; it acknowledges and even welcomes reasonable disagreement within shared premises, as do other plausible theories. Still, the critics are in a sense correct: traditionalism has a characterological or dispositional component that other approaches may lack and this, too, is illustrated in its application to the Establishment Clause. Its character, and the kind of disposition it develops in interpreters subscribing to it, is preservative and custodial. That is not a flaw but a distinguishing virtue. It makes traditionalism preferable to other interpretive possibilities because it makes traditionalism more than just an interpretive theory, reflecting and shaping character even as it provides a coherent framework for adjudicating constitutional cases.
Today is the Feast of St. John Henry Cardinal Newman, an English Cardinal and theologian, and one of the most incisive thinkers about tradition and change of the last two centuries. I reproduce below some selected portions of Cardinal Newman’s wonderful essay, An Essay on the Development of Christian Doctrine. In the work, Cardinal Newman describes the nature of “doctrinal development” as an essential feature of the elaboration of eternal truths for finite minds like ours. In Part II, Chapter 5, he proposes seven criteria to determine whether a particular development is genuine, or instead a “corruption” or “perversion,” of the original. I’ve found these categories and insights illuminating over the years in thinking about tradition and change in American law. But do read the whole essay to honor the day.
I venture to set down seven Notes of varying cogency, independence and applicability, to discriminate healthy developments of an idea from its state of corruption and decay, as follows:—There is no corruption if it retains one and the same type, the same principles, the same organization; if its beginnings anticipate its subsequent phases, and its later phenomena protect and subserve its earlier; if it has a power of assimilation and revival, and a vigorous action from first to last…
PRESERVATION OF TYPE: every calling or office has its own type, which those who fill it are bound to maintain; and to deviate from the type in any material point is to relinquish the calling. Thus both Chaucer and Goldsmith have drawn pictures of a true parish priest; these differ in details, but on the whole they agree together, and are one in such sense, that sensuality, or ambition, must be considered a forfeiture of that high title. Those magistrates, again, are called “corrupt,” who are guided in their judgments by love of lucre or respect of persons, for the administration of justice is their essential function. Thus collegiate or monastic bodies lose their claim to their endowments or their buildings, as being relaxed and degenerate, if they neglect their statutes or their Rule. Thus, too, in political history, a mayor of the palace, such as he became in the person of Pepin, was no faithful development of the office he filled, as originally intended and established…
CONTINUITY OF PRINCIPLE: …A development, to be faithful, must retain both the doctrine and the principle with which it started. Doctrine without its correspondent principle remains barren, if not lifeless…On the other hand, principle without its corresponding doctrine may be considered as the state of religious minds in the heathen world, viewed relatively to Revelation; that is, of the “children of God who are scattered abroad.”
POWER OF ASSIMILATION: …[D]octrines and views which relate to man are not placed in a void, but in the crowded world, and make way for themselves by interpenetration, and develope by absorption. Facts and opinions, which have hitherto been regarded in other relations and grouped round other centres, henceforth are gradually attracted to a new influence and subjected to a new sovereign. They are modified, laid down afresh, thrust aside, as the case may be. A new element of order and composition has come among them; and its life is proved by this capacity of expansion, without disarrangement or dissolution. An eclectic, conservative, assimilating, healing, moulding process, a unitive power, is of the essence, and a third test, of a faithful development.
LOGICAL SEQUENCE: Logic is the organization of thought, and, as being such, is a security for the faithfulness of intellectual developments; and the necessity of using it is undeniable as far as this, that its rules must not be transgressed…Each argument is brought for an immediate purpose; minds develope step by step, without looking behind them or anticipating their goal, and without either intention or promise of forming a system. Afterwards, however, this logical character which the whole wears becomes a test that the process has been a true development, not a perversion or corruption, from its evident naturalness; and in some cases from the gravity, distinctness, precision, and majesty of its advance, and the harmony of its proportions, like the tall growth, and graceful branching, and rich foliage, of some vegetable production…
ANTICIPATION OF ITS FUTURE: …[S]ince developments are in great measure only aspects of the idea from which they proceed, and all of them are natural consequences of it, it is often a matter of accident in what order they are carried out in individual minds; and it is in no wise strange that here and there definite specimens of advanced teaching should very early occur, which in the historical course are not found till a late day. The fact, then, of such early or recurring intimations of tendencies which afterwards are fully realized, is a sort of evidence that those later and more systematic fulfilments are only in accordance with the original idea.
CONSERVATIVE ACTION UPON ITS PAST: As developments which are preceded by definite indications have a fair presumption in their favour, so those which do but contradict and reverse the course of doctrine which has been developed before them, and out of which they spring, are certainly corrupt; for a corruption is a development in that very stage in which it ceases to illustrate, and begins to disturb, the acquisitions gained in its previous history…A true development, then, may be described as one which is conservative of the course of antecedent developments being really those antecedents and something besides them: it is an addition which illustrates, not obscures, corroborates, not corrects, the body of thought from which it proceeds; and this is its characteristic as contrasted with a corruption.
CHRONIC VIGOUR: Since the corruption of an idea, as far as the appearance goes, is a sort of accident or affection of its development, being the end of a course, and a transition-state leading to a crisis, it is, as has been observed above, a brief and rapid process. While ideas live in men’s minds, they are ever enlarging into fuller development: they will not be stationary in their corruption any more than before it; and dissolution is that further state to which corruption tends. Corruption cannot, therefore, be of long standing; and thus duration is another test of a faithful development.
Si gravis, brevis; si longus, levis; is the Stoical topic of consolation under pain; and of a number of disorders it can even be said, The worse, the shorter.