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.

An interesting feature of a society built on the intellectual and cultural cornerstone of a progressive philosophy of history–the view that a society advances linearly toward a more universally just, rational, and equal world–is that it tends to excite hatred of the customs and practices of its past, imperfect self. The phenomenon is particularly acute for more mature, materially and socially successful societies, because it is these societies that can afford a well-to-do, highly educated, elite social stratum, which separates itself from those self-same customs and practices. The seeds of self-loathing are therefore contained within the successful society and a cyclical marker of its decline.

Something like this seems to be the thesis of an interesting new book: Western Self-Contempt: Oikophobia in the Decline of Civilizations (Cornell University Press) by Benedict Beckeld.

Western Self-Contempt travels through civilizations since antiquity, examining major political events and the literature of ancient Greece, Rome, France, Britain, and the United States, to study evidence of cultural self-hatred and its cyclical recurrence. Benedict Beckeld explores oikophobia, described by its coiner Sir Roger Scruton as “the felt need to denigrate the customs, culture and institutions that are identifiably ‘ours,'” in its political and philosophical applications. Beckeld analyzes the theories behind oikophobia along with their historical sources, revealing why oikophobia is best described as a cultural malaise that befalls civilizations during their declining days.

Beckeld gives a framework for why today’s society is so fragmented and self-critical. He demonstrates that oikophobia is the antithesis of xenophobia. By this definition, the riots and civil unrest in the summer of 2020 were an expression of oikophobia. Excessive political correctness that attacks tradition and history is an expression of oikophobia. Beckeld argues that if we are to understand these behaviors and attitudes, we must understand oikophobia as a sociohistorical phenomenon.

Western Self-Contempt is a systematic analysis of oikophobia, combining political philosophy and history to examine how Western civilizations and cultures evolve from naïve and self-promoting beginnings to states of self-loathing and decline. Concluding with a philosophical portrait of an increasingly interconnected Western civilization, Beckeld reveals how past events and ideologies, both in the US and in Europe, have led to a modern culture of self-questioning and self-rejection.

Taking a break from the regular book posts to flag a very interesting article by Professor Samuel Bray (Notre Dame Law School). The piece is The Influence of the Catholic Tradition on the Common Law, and it discusses three ways in which Catholic thought shaped the common law tradition. One of the difficulties in such a project, Sam says, is that the common law tradition is largely a post-16th century English phenomenon, when the role of Catholicism was, shall we say, diminished. Here is the abstract of the piece, followed by a few little reflections:

This essay considers the influence of the Catholic intellectual tradition on the common law. As a preliminary matter, the essay notes that the term “Catholic intellectual tradition” is of recent vintage, though its referent is much older. It identifies three mechanisms of influence: inheriting, conversing, and generating. For inheriting, the essay notes that some common law doctrines, such as the Chancellor’s conscience, were inherited from the Catholic intellectual tradition. For conversing, the essay notes the conversation across confessional boundaries in early modern Europe, which was facilitated by the use of Latin and scholastic curricula well after the Reformation. This point, while familiar to early modern intellectual historians because of revisionist work over the last quarter century, may be surprising to legal scholars. Finally, for generating, this essay shows that the common law judges, by their own lights, were participants in the Catholic intellectual tradition. This is demonstrated, for example, by analysis of Chief Justice Vaughan’s opinion in Thomas v. Sorrell (1673/4). When this intellectual tradition is viewed without anachronistic narrowness, its influence on the common law is substantial.

The piece is short, sweet, and full of great learning and insight. I highly recommend it. One rapid thought on the “anachronistic narrowness” point quoted above in the abstract. On what he calls the “generative” influence of Catholic thought on the common law, Sam argues very interestingly that the division of Catholic Intellectual Tradition from Protestant thought is likely of relatively recent vintage (say, the 19th century or so, especially in the resistance of the Church to modernity during that period), and that the common lawyers of the early period of the common law did think of themselves as working from (and perhaps even within) the Catholic Intellectual Tradition. One might call it instead the catholic intellectual tradition that is, Sam suggests, the tradition that had influence on the early common law–the Western Christian or Christian apostolic tradition unbound by today’s anachronistic divisions.

There are some comparatively small questions I had about some of Sam’s more specific claims. He says, for example, that each “side”–“Roman” and “non-Roman”–argued in “Newmanesque” fashion that “whoever did not change or augment the deposit of faith was the truly catholic side.” But is this really a full description of the disagreements that were themselves generated in and just after the period Sam surveys? There are not too many people in this world who would like more to believe that everybody is actually, deep down, a traditionalist. But disagreements about tradition and development (a/k/a change), it seems to me, eventually led to Cardinal Newman’s own position, decisions, and intellectual contribution. I wonder whether they materialized quite as late as Sam suggests.

Nevertheless, in highlighting one of Sam’s perhaps more controversial points above, I want to emphasize that Sam seems to me quite correct on all three influences with respect to the thought of learned commentators such as Coke, Hale, St. German, and others (perhaps even as late as Mansfield and Blackstone, for example), as well as judges such as the one who wrote the lead opinion in cases like Thomas v. Sorrell (1673/4). “[G]iven the cross-confessional argument and pollination in the early modern period across the republic of letters,” Sam contends, “it is plausible to think that sharply demarcated “Catholic” and “Protestant” intellectual traditions are from a later time.” As I say, just when that “later time” began is difficult to determine, as Sam properly acknowledges (the 19th century seems quite late, indeed), but at least as to the earlier common law writers, his view seems (to this admitted non-expert in English legal history) persuasive.

At any rate, check out this very fine piece.