I have said before that if you are interested in law and religion, you must read Anthony Trollope. I can’t think of many authors who are more intimately concerned with the quotidian working out of church-state arrangements. As Hawthorne once put it, “Trollope’s novels are solid, substantial, written on the strength of beef and through the inspiration of ale and just as real as if some giant had hewn a great lump out of the earth and put it under a glass case, with all its inhabitants going about their daily business and not suspecting they were being made a show of.”

Trollope’s Barsetshire Novels in particular are concerned with political and cultural change, or “evolution,” within the Anglican Church in English nineteenth century life. Here is a wonderful passage from “Barchester Towers” in which a “new man” representative of the progressively liberalizing episcopacy (Mr. Slope) informs an “old man” (Mr. Harding) about the changes coming to the Church and to English life more broadly:

“You must be aware, Mr. Harding, that things are a good deal changed in Barchester,” said Mr. Slope.

Mr. Harding said that he was aware of it. “And not only in Barchester, Mr. Harding, but in the world at large. It is not only in Barchester that a new man is carrying out new measures and casting away the useless rubbish of past centuries. The same thing is going on throughout the country. Work is now required from every man who receives wages; and they that have to superintend the doing of work, and the paying of wages, are bound to see that this rule is carried out. New men, Mr. Harding, are now needed, and are now forthcoming in the church, as in other professions.”

All this was wormwood to our old friend [Mr. Harding]. He had never rated very high his own abilities or activity; but all the feelings of his heart were with the old clergy, and any antipathies of which his heart was susceptible, were directed against those new, busy, uncharitable, self-lauding men, of which Mr. Slope was so good an example….

Mr. Harding was not a happy man as he walked down the palace pathway, and stepped out into the close. His preferment and pleasant house were a second time gone from him; but that he could put up with. He had been schooled and insulted by a man young enough to be his son; but that he could put up with. He could even draw from the very injuries, which had been inflicted on him, some of that consolation, which we may believe martyrs often receive from the injustice of their own sufferings, and which is generally proportioned in its strength to the extent of cruelty with which martyrs are treated….But the venom of [Mr. Slope’s] harangue had worked into his blood.

“New men are carrying out new measures, and are carting away the useless rubbish of past centuries!” What cruel words these had been; and how often are they now used with the heartless cruelty of a Slope! A man is sufficiently condemned if it can only be shown that either in politics or religion he does not belong to some new school established within the last score of years. He may then regard himself as rubbish and expect to be carted away. A man is nothing now unless he has within himself a full appreciation of the new era; an era in which it would seem that neither honesty nor truth is very desirable, but in which success is the only touchstone of merit. We must laugh at every thing that is established. Let the joke be ever so bad, ever so untrue to the real principles of joking; nevertheless we must laugh–or else beware the cart. We must talk, think, and live up to the spirit of the times, and write up to it too, if that cacoethes be upon us, or else we are naught. New men and new measures, long credit and few scruples, great success or wonderful ruin, such are now the tastes of Englishmen who know how to live.

I have a reply to the essays of Professors Bernstein, Levinson, and Stoner up at the Liberty Fund blog. It is the last in this series, and I’ve enjoyed it very much. Here is a portion from the middle, responding to some of Professor Levinson’s challenging remarks:

It is a somewhat different thing to reply to Professor Levinson, who has earned more attention in this reply by being considerably less sympathetic than my other interlocutors to the value of exploring the relationship of tradition in law. He makes three primary points: 1) My essay was pitched at a sufficiently abstract level so as to be criticized with the aphorism that we are all traditionalists in America so long as we are essentially liberal Progressives (or libertarians). 2) American Founders such as the authors of the Federalist Papers were revolutionaries, not traditionalists, so that the predominant American political-legal tradition is liberal Progressivism, if not radicalism. 3) To the extent a non-liberal-Progressive traditionalism has been part of American intellectual history, it has been responsible for terrible things—slavery most prominent among them—that have rightly been abandoned.

As to the first point, it is difficult to think of anybody (not even Professor Levinson’s traditionalist incarnation, Edmund Burke, would qualify) who holds that a positive view of tradition implies or requires stasis or the total absence of change. Even for those, like Burke, well-disposed to adhere to past patterns of behavior, it is necessary to devise new ones if only because the situations to which those traditional patterns must be applied are different than those that preceded them—“confirming the wisdom of what remains,” as Professor Stoner has it. At any rate, though the relationship between tradition and social change is complex, at least this much may be said: It is not a one-sided affair. It is not all tradition and no change or progress. Otherwise, we would all be liberal Progressives.

Perhaps the differences between Professor Levinson and me are therefore more matters of mood, disposition, or emphasis. He lights up at those moments in American culture and history in which people exercise their freedom to “denounce” the inheritance of the past. It is probably fair to say that I find such moments less electrifying, though I agree with Professor Levinson that they do exist.

I offer the Madison of the National Bank controversy. He counters with the Madison of Federalist 14 (though I might observe that a “decent regard to the opinions of former times” is not the same as an indecent contempt for them).

I could parry with language in Federalist 15 (“experience” as “the best oracle of wisdom”) or the very final Federalist 85 (“No human genius, however comprehensive, is able by the mere dint of reason and reflection to effect it. The judgements of many must unite in the work.”). Or even Federalist 2, in which John Jay notes with some pride that “Providence” has seen fit to give the country to a people “very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long ad bloody war, have nobly established general liberty and independence.”

Doubtless Professor Levinson would have a riposte at the ready, and so it would go on. He characterizes these as internal “contradictions” within The Federalist but they may simply be different features of the moral and political experience of these three authors, each representing its own portion of wisdom. Many of them do not vindicate liberal Progressivism in the least.

In fact, it severely distorts the American Founding to call it either committed to a liberal Progressive ideological program or rabidly radical. True, there were elements of the Old World that were cast off by the new nation, but as historians from Forrest McDonald to Eric Nelson have (in their own ways) shown, the temper of the American Founders may have been even more traditionalist than their English progenitors. Early Americans were the inheritors of an English constitutional traditionalism that was centuries old. Their revolution was motivated by the Crown’s denial of what they perceived as their traditional, ancient rights as Englishmen, rather than by the desire to denounce and exchange those rights for something altogether and radically different. What they desired for themselves was what they already knew well as the tradition of self-government in liberty.

The English Bill of Rights was a model for ours, just as the Act of Union was a model for our federalism. As Greg Weiner has put it in his fine recent essay for Law and Liberty, “Of course, the colonists were deeply affected by the ideas of the Enlightenment, as they were by the ideas of antiquity (far more essentially a staple of their curricula).” Tradition and change were at least equally parts of their political and intellectual constitution. As they should be (but regrettably are not) of ours.

The final response to my essay on law and tradition has been posted over at Liberty Law, and it is superb: Professor James Stoner’s Legal Realism, Legal Revolution. Jim’s work has been formative for my own learning about the relationship of the common law tradition and American constitutionalism–and in particular about the erroneous and all-too-common characterization of constitutional law as “judge-made law.” It’s wonderful to have his contribution. A bit from the end of Jim’s piece:

Just a little over two months after praising Americans for discarding a “blind veneration” of legal tradition, Madison wrote a most interesting passage in Federalist 49. In that February 2, 1788 essay he explained the need for the Constitution to earn what I infer must be enlightened “veneration” (he repeats the noun, without an adjective) from the people. This would come over time, as the system established by the Constitution demonstrated its capacity to insure good government. I think Madison had in mind a respect that inclines people to work within the system to seek improvements, and an inclination to wonder whether even what appear to the most agitated of us to be “stupidities” or “rigging,” might not have a reasonable purpose, even if that purpose has come to be overlooked or forgotten.

“In a nation of philosophers,” he continued, “this consideration ought to be disregarded. A reverence for the laws would be sufficiently inculcated by the voice of enlightened reason. But a nation of philosophers is as little to be expected, as the philosophical race of kings wished for by Plato.” The impossibility of such a nation, moreover, is not accidental, but somehow essential, if the limits of human reason are understood. As Madison explains a few papers later, “Had every Athenian citizen had been a Socrates, every Athenian assembly would still have been a mob.”

DeGirolami seems right on point in describing the anti-traditionalism of the legal academy today and, since this has been the case for more than a generation, of the bar and bench that they have trained. The thirst for novelty, driven by academic practices that ultimately imitate the natural sciences without showing anything like scientific progress, except perhaps to partisans of dominant opinion, has corrupted the respect for tradition that once imbued the law and that—let me repeat by way of emphasis—made possible genuinely successful reform.

Perhaps, as DeGirolami hopes, something can be salvaged of the common law tradition, in its new guise as “judicial process,” to guide pragmatic reformers who don’t want to scrape their shins on the furniture—even if the brightest and most ambitious eschew Holmes’ path of “profound interstitial change” in favor of openly promoting causes they think noble. I confess to being a bit skeptical that tradition can be recovered as a formal category and an independent good apart from the actual, concrete tradition of common law and constitutionalism which we inherited, developed, and now seem eager to spend down. I doubt, too, whether that tradition could be restored unless the difficult philosophical work were done inside the law schools and outside of them—the work that would be needed to revive the thought, the experience, and even the faith in human reason out of which our tradition first emerged.

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.