At the First Things site today, I have post about why the future of tradition, and traditional institutions, may be brighter than we imagine. Notwithstanding the power of markets and technology to weaken tradition, I argue, the human need for stability and continuity with the past remain:
Moreover, traditions and traditional institutions have survived, and will continue to survive, because they speak to human nature. They fulfill basic human needs: family; community; a sense of belonging; an attachment to place; a link to the transcendent. Perhaps some people can do without these things, or can invent them for themselves. The Nones, I gather, think they can fashion their own religions. But most of us cannot. Most of us need the stability the past provides, the guidance of received wisdom. Some very smart people think technology is on the brink of altering human nature forever—that we are about to create a new sort of being, a transhuman hybrid of man and computer, that will inherit the future. Well, it hasn’t happened yet. For the moment, old-fashioned human nature endures; and tradition, however much we neglect or try to erase it, endures too.
I have the first of two posts up at the Liberty Law blog comparing originalism and traditionalism in constitutional interpretation. The first post uses Town of Greece v. Galloway while in the second I’ll talk about the NLRB v. Noel Canning. The point of the posts is not to defend these decisions, but merely to distinguish them as traditionalist in interpretive method. Here’s a bit from the end:
How is [traditionalism] different from originalism? Here things quickly become complicated because of the broad variety of originalist interpretive approaches. Shortly after the decision [in Town of Greece] was issued, Professor Michael Ramsey had an excellent and useful post on the degree to which Kennedy’s opinion was originalist, in which Ramsey concluded that it reflected a species of original expected applications originalism:
It’s not (typically for Kennedy) an exclusively originalist opinion, but there is a strong originalist element….Kennedy’s principal contention (following Marsh) is that the people who proposed the First Amendment also authorized sectarian legislative prayer, so the Amendment must permit it.
In academic terms, this is a version of “original expected application” – that is, how did the framers of a provision anticipate it affecting existing practices? It is fashionable in academic circles to look down on original expected applications. Under original meaning originalism, the question is: what did the text mean? It’s not, what did some people at the time think it would mean (or, worse, how did some people at the time apply it in practice once it was enacted)? If that’s right, Kennedy is looking in the wrong place – it shouldn’t matter what people thought would happen to legislative prayer, but rather what the text actually meant for legislative prayer.
And yet for the traditionalist it should and does matter that many people, including the drafters (but certainly not only they), did not believe there to be any inconsistency between the practice of legislative prayer and the meaning of disestablishment in the First Amendment. It furthermore matters for the traditionalist (as it does not for many originalists) that the practice was widely accepted in the colonial period as well as for long periods after the ratification of the Establishment Clause. That is because the traditionalist is more focused on practices than meanings when it comes to constitutional interpretation. Or perhaps it is better to say that the traditionalist believes that the meaning of text—particularly as to text that is itself abstract—is far better determined and understood by recourse to concrete practices than by recourse to still other abstract principles.
Here there may be some further overlap between traditionalism and those sub-varieties of public meaning originalism that are receptive to discerning meaning from practices and customs. Professors John McGinnis and Michael Rappaport have written favorably about this interpretive approach in this paper. Professor Ramsey puts the point well from the originalist perspective: “If a very broad consensus at the time of enactment (or shortly after) thought that provision X did not ban activity Y, that is surely strong evidence that the original public meaning of X did not ban activity Y.” For the traditionalist, practices (not principles) are not “merely evidence” or “some evidence” or even “strong evidence” of meaning. Meaning is constituted by practices. The endurance of those practices and the degree of their social acceptance—before, during, and after textual ratification—are also constituents of meaning. None of this implies that these are the only constituents. Neither does it imply that new practices cannot be enfolded into existing meanings. That the founders did not know about email or the Internet, for example, does not mean, on the traditionalist view, that the Fourth Amendment cannot apply to those new media today. But practices that were familiar; widespread; continuous before, during and after the founding; and constitutionally unobjectionable offer more than “evidence” of the meaning of the Establishment Clause. For the traditionalist, they are themselves part of that meaning.
I have this new post on the subject of law and tradition at the Library of Law and Liberty, the fourth in my Tradition Project series. In it I discuss a recent essay by Professor Martin Krygier, whose reflections on law and tradition I have noted in several previous posts here. A bit from the post:
Lawyers speak and think within a particular idiom, and that idiom is transmitted across long periods of time. What is called “thinking like a lawyer” is in reality learning the idiom of law within a particular legal tradition. As Krygier argues that idiom is specially—perhaps uniquely—dependent upon the past:
Law is one of the most self-consciously traditional of practices, and lawyers have a distinctive preoccupation with the legal pasts. They are always mining the past for authorities they can deploy in the present; that is something engineers, for example, don’t do in the same way – their tradition has a thinner presently active past than does law—and it is characteristic of the profession. They are not expected to recommend a result simply because it would be a great idea, they recommend it because they claim it flows from the existing law, some of it—particularly in the common law—very long-existing law. That law has authority, and it also contains ideas, arguments, resources for thought. Lawyers are expected to take the legal past seriously.
All of this relates directly to the meaning of Magna Carta. That meaning is both changing and profoundly connected to the past. One of the most common mistakes about traditionalism in law (and elsewhere) is the view that it is static. But a language, or an idiom, is not static. As Alistair MacIntyre has put it, “A living tradition then is an historically extended, socially embodied argument, and an argument precisely in part about the goods which constitute that tradition. Within a tradition the pursuit of goods extends through generations, sometimes through many generations.”
The traditionalist view of Magna Carta, in Krygier’s view, can accommodate both these features of historical continuity and change in a way that neither the votary nor the skeptic can. In this way, the traditionalist view is particularly well suited to law which, unlike history, is not principally interested in establishing what happened so much as drawing “on the present-past of law to deal with present legal problems.”
Playing on TS Eliot’s famous essay, that is the title of the third entry in my Law and Tradition series at the Liberty Fund’s blog. In the post, I discuss the very interesting plurality opinion in Burhnam v. Superior Court, one of the Court’s highly traditionalist opinions (and one perhaps not so commonly known outside civil procedure circles).
From the end:
Burnham involved the…question whether the state of California could assert personal jurisdiction in a divorce action over a defendant who was physically present within the state. The defendant had entered California on business and to visit his children, and he claimed that the more flexible approach for defendants without physical presence should apply in his case as well. The Court disagreed:
The distinction between what is needed to support novel procedures and what is needed to sustain traditional ones is fundamental….The short of the matter is that jurisdiction based on physical presence alone constitutes due process because it is one of the continuing traditions of our legal system that define the due process standard of “traditional notions of fair play and substantial justice.” That standard was developed by analogy to “physical presence,” and it would be perverse to say it could now be turned against that touchstone of jurisdiction.
In so holding, the Burnham plurality denied that a state’s exercise of personal jurisdiction over a defendant depends solely on measuring the extent of his contacts with the state against abstract, evolving, and ultimately subjective tests of fairness or justice.
The plurality also noted that its methodology differed significantly from Shaffer v. Heitner, in which the Court had stated that “traditional notions of fair play and substantial justice” may be “readily offended by the perpetuation of ancient forms that are no longer justified.” Justice Brennan’s concurrence in Burnham likewise urged the Court to apply “contemporary notions of due process.”
The Burnham plurality responded that it was doing just that, for “contemporary notions of due process” just exactly are the “traditional notions of fair play and substantial justice” that “are applied and have always been applied in the United States.” These notions are not the playthings of the justices. They are not judicially evolving notions. Neither are they merely historical notions. They are traditional notions. Personal jurisdiction over a defendant physically present within a state may be reformulated as “fair” (as Justice Brennan urged) because the defendant could “reasonably” have expected it. But his expectation would have been reasonable only because personal jurisdiction in such circumstances is traditional: “fairness,” the plurality said, “exists here because there is a continuing tradition.” The tradition can change, of course, if a state wishes to change it. But the overwhelming majority of states had not, and it was not the justices’ proper role to do so.
The plurality opinion in Burnham is, in sum, one of the Court’s most traditional decisions. And in its response to Justice Brennan’s progressive understanding of the judicial role, one is reminded of Eliot’s famous essay, Tradition and the Individual Talent: “Someone said: ‘The dead writers are remote from us because we know so much more than they did.’ Precisely, and they are that which we know.”
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).
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.”
In the Italian journal, Il Foglio, our friend and sometime guest contributor Pasquale Annicchino (European University Institute) has a provocative essay, “Now America waters down religious freedom and prefers rainbow colors. Why is that?” Annicchino sees a paradigm shift in American human rights policy. Where the US once favored religious liberty, it now gives priority to personal autonomy, especially LGBT rights:
What seems to have permanently changed is the cornerstone of the American projection in its narrative on rights around the world. The White House lights up with rainbow colors in the day of the Supreme Court ruling that recognizes the right to gay marriage. There is a decline in action for religious freedom, a right that refers to groups and individuals, while a vision linked to individualism and the principle of personal autonomy is on the rise, and the rights of LGBTI people are probably the clearest example of that.
An interesting take. You can read Annicchino’s essay here.
James Ruff as Daniel in the Trinity Production (NYT)
Earlier this month, I had a chance to see the Gotham Early Music Scene’s production of The Play of Daniel, a medieval Christmas pageant, performed as part of the annual Twelfth Night Festival at New York’s Trinity Church. The festival, which the church started several years ago, revives the idea of Christmas as a twelve-day holiday beginning on December 25 and running until Epiphany, January 6. It includes concerts and plays at Trinity and nearby St. Paul’s. I hope the organizers include this production of Daniel every year.
Students at Beauvais Cathedral in the north of France wrote Daniel, a drama based on episodes in the Old Testament book, around the year 1200. The text is a mix of Latin and Old French. The music, without rhythmical notation, survives in a manuscript at the British Library; the Trinity production rendered many of the numbers as dances. Interpolated within the biblical story are non-biblical texts, including songs that foretell the coming of Christ and even a Christmas carol of sorts, Congaudemus celebremus natalis sollempnia—“Let us together joyfully celebrate the Feast of the Nativity.” The presence of these songs, as well as some other internal evidence, suggests Daniel is meant to be performed at Christmastime.
The Trinity production was a lot of fun—the music; the costumes, inspired by pictures at the Cloisters in upper Manhattan; the acting, everything. Trinity’s Gothic Revival setting worked perfectly. Early music isn’t everyone’s thing, I know, but I think everyone would enjoy this production, including kids. There are even some laughs.
For people interested in church and state, the play has additional meaning. In the Old Testament book, King Darius’s courtiers urge him to issue an order providing that “whoever prays to anyone, divine or human, for thirty days, except to you, O king, shall be thrown into a den of lions.” Darius issues the order, but Daniel refuses to comply. “He continued to go to his house, which had windows in its upper room open toward Jerusalem, and to get down on his knees three times a day to pray to his God and praise him, just as he had done previously.” The courtiers find out and haul Daniel before Darius, who cannot take back his order, as the laws of the Medes and Persians, once proclaimed, are irrevocable. Daniel goes off to the lions, but God sends an angel to protect him. Moved, Darius frees Daniel and orders the courtiers thrown to the lions instead. They don’t fare as well.
The story of Daniel in the lion’s den is pretty well known, even in our age of biblical illiteracy. But there is another church and state allusion in Daniel, more obscure today, but which contemporary audiences would surely have recognized. Daniel was written at the height of the investiture crisis, a centuries-long struggle for control of the Catholic Church that pitted the Holy Roman Emperor and other sovereigns against the papacy. Harold Berman famously dated the origins of the Western legal system, particularly legal pluralism, to the investiture crisis and what he called “the papal revolution” of the late Middle Ages. When Daniel was written, Becket’s murder was still in living memory, and the outcome of the investiture crisis was far from certain. Surely those students of Beauvais had current events in mind when they staged a drama showing what happens to courtiers who try to impose the power of the state against believers.
If you can, go and see Daniel next Christmas. Meanwhile, to tide you over, here is a video of this year’s performance from Trinity’s website.
Professor Richard Epstein has performed a welcome service in reminding us of the classical liberal case for the freedom of association. The classical liberal champions the primacy of rights as guarantors of the individual’s sovereignty to make free dealings with other sovereigns. He values rights as safeguards of the freedom to make moral and economic choices, to unite with others of like mind, and promptly to divest when the benefits of union are no longer perceived. He distrusts rights as claims for the imposition of obligations that override others’ sovereignty, reserving such mandates for special cases—force and fraud, as well as monopolistic control.
As Epstein has incisively noted elsewhere, discriminating associations are features of well-ordered societies in which people disagree about the good life, much as discriminating palates are features of well-ordered societies in which people disagree about good taste.[1] Association implies discrimination; to include some is to exclude others. Discrimination is legally wrongful only when it completely blocks a class of persons from access to a particular set of commoditized goods and services. But it is not legally wrongful if such persons feel the offense of exclusion but still can access alternative market channels. Respect for rights is supposed to limit the power of the state, not enhance it. All this is an appealing view of associational freedom in many ways.
Why, then, is this view so much in retreat? For it is today in open and full retreat. As Epstein’s Liberty Forum essay shows, the scope of antidiscrimination law, and the zeal with which it is enforced, have greatly increased over the last few decades. The power of government to mandate proliferating and ever more rigorous norms of equality has accelerated and shows no signs of abating. More perplexing still is that a significant and growing number of Americans, especially those in elite circles (including in younger generations), have acquired a wolfish appetite for measures that contract First Amendment freedoms and swell the state’s power to stamp out discrimination of increasingly recondite varieties wherever they may exist. Epstein notes all this and rightly laments it. But he does not explain it.
What happened to the libertarian, economically-inflected, live-and-let-live vision of the freely associating society?
Many things that this brief response to Epstein cannot comprehensively catalog. Yet one explanation for the classical liberal retreat lies in its failure to account for the psychologically affective features of law—and in particular its blindness to the influence of its own marketized and contractualized conception of First Amendment freedoms, including associational freedom, on the civic virtues and ideals of the citizenry. Law gives direction; it teaches, orders, and ranks; it creates hierarchies. The classical liberal model of law is no exception.
Check out this superb essay on the Heritage website by philosopher Roger Scruton (left), “The Future of European Civilization: Lessons for America.” There’s much to ponder, but I’d like to focus on just one point. Scruton argues that “Human Rights” has replaced Christianity as the religion of Europe’s elites.
Human Rights purports to provide a grounding for morality and social order—what Christianity used to do. The problem, Scruton says, is that Human Rights is itself without foundation and therefore cannot play the role people wish to assign it:
“If you ask what religion commands or forbids, you usually get a clear answer in terms of God’s revealed law or the Magisterium of the church. If you ask what rights are human or natural or fundamental, you get a different answer depending on whom you ask, and nobody seems to agree with anyone else regarding the procedure for resolving conflicts.
“Consider the dispute over marriage. Is it a right or not? If so, what does it permit? Does it grant a right to marry a partner of the same sex? And if yes, does it therefore permit incestuous marriage too? The arguments are endless, and nobody knows how to settle them.…
“We are witnessing, in effect, the removal of the old religion that provided foundations to the moral and legal inheritance of Europe and its replacement with a quasi-religion that is inherently foundationless. Nobody knows how to settle the question whether this or that privilege, freedom, or claim is a “human right,” and the European Court of Human Rights is now overwhelmed by a backlog of cases in which just about every piece of legislation passed by national parliaments in recent times is at stake.”
It’s an important point, and Scruton makes it with his usual grace and insight. He’s correct that the left often talks about Human Rights as though it were a kind of religion and, in fact, an improvement on the old faith. For example, in his recent book, Christian Human Rights, which I review in the current issue of the magazine, First Things, Harvard scholar Samuel Moyn compares Human Rights with Christianity, and concludes that Human Rights has the potential to do a superior job in improving people and making the world a more moral place.
Scruton is right, too, that competing understandings of Human Rights exist, and that they lead to different practical results in some cases. For example, a Catholic understanding, based on an objective conception of human nature and human dignity, does not allow for same-sex marriage as a human right. By contrast, the dominant secular understanding, based on the value of subjective choice, does. In the contemporary West, the latter view dominates. In the global context, however, it’s not so clear. In addition to the Catholic understanding, there are also Islamic and Orthodox Christian conceptions of human rights that differ markedly from the secular, subjective version—as well from each other.
The drafters of the Universal Declaration of Human Rights (1948) famously avoided these debates. Philosophical agreement would be unnecessary, they thought, as long as nations signed up for the basic idea of human rights. Besides, nations would always retain some discretion in applying the so-called “universal” rights in the context of their own cultures. But it’s becoming increasingly difficult to ignore debates about the grounding for human rights now, and aside from the power of office – “we control international human rights organizations and you don’t”– there doesn’t seem a clear way to resolve them.
Nonetheless, Scruton overstates his case a bit. It’s true that there is much disagreement about Human Rights at the global level. But within Europe? I wonder whether the absence of agreement on particular cases makes today’s commitment to Human Rights all that different, as a practical matter, from yesterday’s commitment to Christianity. It’s not like Christians have always agreed among themselves on what Christianity requires for law and politics, either. (See: The Protestant Reformation). May Christians divorce and remarry? May they use artificial contraception? Some Christian communions say yes, others no. Do these disagreements mean Christianity is useless as a means of ordering society? I wouldn’t think so. Besides, even if one disagrees with it, there is a consistent European Court jurisprudence on many human-rights questions.
I suppose the response would go something like this. Fundamentally, Human Rights – at least, the dominant secular version – denies the basis for any objective truth claims. So there’s no way to resolve any issue, other than deferring to individual subjectivity, which is no basis for a legal system. It’s not a matter of a few difficult cases here and there, but the whole run of possible cases. Without a commitment to some objective value, something other than individual choice, the whole system will ultimately collapse.
I’ll need to think about this more. Whatever your view, Scruton’s essay is, as always, profound, elegant, and thought provoking.
At USA Today, columnist Kirsten Powers writes about the State Department’s apparent reluctance to refer to ISIS’s persecution of Iraqi and Syrian Christians as a genocide. The reluctance is puzzling. According to press reports, the Department is poised to declare a genocide ISIS’s persecution of another religious minority, the Yazidis. If Yazidis are the victims of genocide, she asks, why not Christians? The situation of these two persecuted minorities is quite similar.
Powers makes a very good point. The 1948 Genocide Convention defines “genocide” as, among other things, “deliberately inflicting on” a religious group “conditions of life calculated to bring about its physical destruction in whole or in part.” Obviously, what ISIS is doing to the Yazidis qualifies. So does what ISIS is doing to Christians. ISIS is driving Christians from their homes, seizing their property, and, quite often, killing them in the most horrible ways. How does that not qualify as a genocide?
Apparently, the State Department is hesitating because, unlike Yazidis, Christians have a way out. As “People of the Book” under classical Islamic law — which ISIS has purported to restore in its newly declared caliphate — Christians can choose to abide by the terms of the Dhimma, the notional contract that governs the treatment of Christians, Jews, and some other minorities. As dhimmis, Christians may remain in the new caliphate as long as they follow the rules – paying the jizya tax, for example, and accepting social subordination. (I detail the dhimmi restrictions ISIS has imposed on the Christian communities of Iraq and Syria here).
As Powers point out, however, on many occasions, ISIS has disregarded the dhimmi rules. Moreover, even at their best, the rules are punishing. The jizya is often set at a level where many Christians cannot pay it. These Christians have no choice but to leave. More fundamentally, how is it acceptable to tell religious minorities that things are comparatively good for them because they can “choose” to accept oppressive and demeaning treatment and manage to survive? Quite obviously, ISIS’s goal is to eliminate these ancient Christian communities. And it is largely succeeding: those Christians who can do so are fleeing. Some experts believe that Christianity will disappear from Iraq and Syria – places where Christians have lived the religion began – within one or two generations.
Last Friday, a group of Christian leaders, human rights advocates, and scholars sent a letter to Secretary of State John Kerry asking for a meeting on this question, at which they hope to persuade him that Iraqi and Syrian Christians, as well as Yazidis, should be included in any designation of a genocide. (Full disclosure: I am one of the signatories). Secretary Kerry has not yet responded.
At the First Things site today, I have post about why the future of tradition, and traditional institutions, may be brighter than we imagine. Notwithstanding the power of markets and technology to weaken tradition, I argue, the human need for stability and continuity with the past remain:
series. In it I discuss a recent essay by Professor Martin Krygier, whose reflections on law and tradition I have 
