Professor Sandy Levinson has an enjoyable and highly critical take on my essay about law and tradition. It’s a pleasure and an honor to be in conversation with him. I’m already at work on my reply. Last up next week will be Professor Jim Stoner. A bit from the beginning of Professor Levinson’s essay:

Professor DeGirolami has written an interesting Liberty Forum essay in behalf of paying respectful attention to tradition as a major aspect of our legal order. However, I think there are two major problems with it. The first is theoretical, particularly in relation to the American political and legal experience. The second has to do with actual practices or examples. The essay, albeit interesting, is written from a lofty perspective; there are too few concrete examples that truly allow the reader to ascertain the implications of his argument. Almost always, when it comes to politics or law, the devil (or saving grace) is in the details, and Professor DeGirolami needs to put more real flesh on his otherwise skeletal argument….

Professor DeGirolami tellingly quotes both Khloe Kardashian and Oliver Wendell Holmes. One is hesitant to embrace Kardashian as a normative exemplar of American culture, and Holmes, of course, has become a central target of those who view “Progressivism” as a defining moment in the decline of that culture and Holmes as a central figure in that decline.  So let me offer two other sources that call into question another notion that there was an Edenic period in America when tradition, however defined, reigned before the Fall instantiated in figures like Holmes and Woodrow Wilson.

Consider one of the ur-texts of American political thought, The Federalist. Needless to say, any series of 85 essays, written by three authors in a remarkably short period, will have its share of contradictions. That being said, my own favorite paragraph among the 85 is the conclusion of Federalist 14, which is, among other things, about the virtues of the “extended republic,” in contrast with what might be said to be traditional notions of republican political thought that emphasized the importance of relatively small and homogeneous societies as a prerequisite for republican governance. Publius dismissed such arguments:

Hearken not to the voice which petulantly tells you that the form of government recommended for your adoption is a novelty in the political world; that it has never yet had a place in the theories of the wildest projectors; that it rashly attempts what it is impossible to accomplish. . . . Is it not the glory of the people of America, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience? . . . They accomplished a revolution which has no parallel in the annals of human society. They reared the fabrics of governments which have no model on the face of the globe. (emphasis added)

Professor David Bernstein (George Mason) has a thoughtful response to my essay on law and tradition. Here is a bit:

When it comes to American constitutional law, by the late 19th century there was widespread agreement on two principles: that when interpreting the Fourteenth Amendment, the Supreme Court’s role was to protect those natural rights that had been crucial to the development of Anglo-American liberty; and that the United States had an unwritten Constitution based on traditional principles, much like Great Britain’s, that informed constitutional analysis.[3]

For the most part, the Supreme Court justices of the pre-New Deal period did not engage in a jurisprudence of originalism that would be recognizable to modern advocates of originalism. Rather than focusing on the original public meaning of discrete portions of the text, they instead interpreted the Constitution in light of the classical liberal values they believed were embedded in America’s written and unwritten constitutions. They sought to protect those liberties that underpinned the development of Anglo-American liberty. Their Progressive critics recognized this as a form of originalism, and accused them of allowing the dead hand of the past to rule the present. The critics instead advocated a “living Constitution” that would privilege social science and the perceived needs of modernity over the protection of traditional American liberties.[4]

The old Court permitted the government to impinge on recognized liberties when the government was acting within the contours of the so-called police power. Importantly, that power included not simply the protection of public health and safety, but also the protection of public morals, as defined by Anglo-American tradition. For example, despite the Court’s endorsement of liberty of contract, it had no difficulty unanimously upholding a law that restricted work on Sundays.[5]

The Supreme Court’s concern for protecting natural rights as understood in the context of Anglo-American history did not survive the New Deal and the triumph of legal progressivism. That triumph was so complete that for a long time the only significant debate in American constitutionalism was in effect between old Progressives who wanted to severely limit judicial review, and new Progressives who agreed that judicial review should generally be limited, but who sought to carve out certain preferred freedoms for special judicial protection. These freedoms were not defined by reference to tradition or history, but by the need to ensure that the modern special-interest state had democratic legitimacy. As the American state-building project continued, it was considered crucial to ensure that freedom of speech allowed for public debate and input, that criminal suspects received federal procedural protections, and that minorities such as African Americans did not become a permanent underclass, with their status imposed by government.

That’s the title of an essay I have at Law and Liberty’s monthly Forum on the relationship of law and tradition. The essay is a bit of a trumpet flourish for the Tradition Project, the first part of which will be occurring in October of this year, keynoted by Michael McConnell and with subsequent workshops on the meaning of tradition, the American religious tradition, the American political tradition, tradition and the common law, and tradition and constitutional law.

I’m delighted and honored that Professors David Bernstein, Sandy Levinson, and James Stoner will write up responses to my essay, to be published serially in the next few weeks. I’ll get a chance to reply after that to what I know will be challenging and insightful pieces. Here’s a bit of the beginning of mine:

What is the relationship of law and tradition? Tradition, either as a proposition of independent legal value or a register in which to discuss and explain the persistence of our legal arrangements, has very little traction today. In law, as in many other areas of contemporary American life, tradition as a normatively powerful idea is wildly unfashionable—even disreputable.

When tradition’s influence on law is considered, responses ordinarily fall somewhere along a predictably confined range—from dismissal and disdain to something like revulsion. A fairly recent Slate article on Khloé Kardashian’s checkered and rather perplexing spiritual practices concisely sums up the general view: “What’s more American than taking a tradition, tossing out what you don’t like, and remaking it in your own image?”

Deep calls unto deep: writing more than a century earlier, Oliver Wendell Holmes, Jr. seems to have been of like mind when he thundered that “it is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.”[1] These words by one of the most influential of American jurists suggest that there has long been—perhaps there has always been—something of a reluctance (to put it gently) in the American legal intellectual to admit the connection of law and tradition. Arguments that depend upon tradition are widely thought to offer nothing against, or even in conversation with, the predominant intellectual legal frameworks—those inclined toward progress, efficiency, and technology, for example.

And yet the repudiation of tradition as a modality through which to think about and evaluate law is much more deeply ingrained today than in prior periods. One is unlikely, for example, to hear from any contemporary American Bar Association functionary or legal academic anything like what one once heard from ABA founder and Yale Law School Professor Edward J. Phelps. Phelps gave a speech in 1879 on the legacy of Chief Justice John Marshall and constitutional law in which he observed:

“It is idle to say that our sky is free from clouds. It is useless to deny that wise and thoughtful men entertain grave doubts about the future. The period of experiment has not yet passed, or rather has been again renewed. The stability of our system of government is not yet assured. The demagogue and the caucus still threaten the Nation’s life. But we shall not despair. . . .  Let us join hands in a fraternal and unbroken clasp, to maintain the grand and noble traditions of our inheritance, and to stand fast by the ark of our covenant.”[2]

Reliance on the justificatory support of tradition is in fact of long lineage in Anglo-American law. “Erravimus cum patribus”: such was Lord Coke’s response when summoned before the Privy Council to answer various frivolous charges in his ongoing disputes with King James I over his conduct as Chief Justice of the King’s Bench. If there was error, “we have erred with the fathers.” There was a time when this was thought answer enough.

Indeed, American law—and English law before it—historically has depended upon tradition as a vital source of stability and justification. Usages, dispositions, and moral views that endured from one generation to the next were presumed valid and true. There was an implicit judgment of value in these continuities: the wisdom contained in tradition would not have endured, people believed, if it did not advance basic human well-being. True, traditions could change or fall out of use and people did not defer to the past mindlessly. But the past had definite claims; one could not cast it aside as though it had nothing to offer to, or require from, the present.

What complicates the story of tradition’s contemporary decline is that in some ways, tradition as a source of meaning, justification, and even identity in law persists. The common law method, for example, in which law develops gradually and internally from precedent, depends upon traditional instincts and traditional processes. Lawyers and judges cannot ignore the cases that have come before; they must fashion arguments in ways that cohere with earlier judgments. They must incorporate the past into the present. They must respect the American legal tradition—do right by it as they resolve cases.