Comparing Traditionalism and Originalism

I have the first of two posts up at the Liberty Law blog comparing originalism and traditionalism in constitutional TP Bannerinterpretation. 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.

Panel at AAR Meeting Next Month

The Religion and American Law Discussion Group will host a panel at the upcoming meeting of the American Academy of Religion in San Diego (November 22-25). Topics will include “Religion and American Law, Applied” and “The Meaning and Ramifications of Greece v. Galloway.” Speakers include Dusty Hoesly (UC-Santa Barbara), Michael Barber (UC-Santa Barbara), Michael Graziano (Florida State), Charles McCrary (Florida State), Alan Brownstein (UC-Davis), Steve Smith (San Diego), and Steven Green (Willamette). Details about the conference are here.

Dane on Legislative Prayer

Former CLR Forum guest Perry Dane has a typically thoughtful post about the legislative prayer decision. The post offers a distinctively Brennan-esque, separationist perspective, with two moving parts: legislative prayer should be unconstitutional for separationist reasons; but if it is to be constitutional, legislative prayer should not be policed by the Court for ecumenical sufficiency. A bit from the second half of the argument:

To forcefully strip legislative prayer of its rootedness in particular faith traditions or to demand a compulsive even-handedness in rotations of chaplains would only further trivialize and politicize the act.

That’s not to say that public prayers should be “sectarian.”  Quite the contrary.  Religious (and even sympathetic non-religious) folk can find ways to pray together. And the wisest religious traditions demand sensitivity to other faiths (and persons of no faith) in the public arena. But if the Constitution is to allow official public prayer (which, as I’ve said, it shouldn’t), then it has no business demanding such wisdom as the price of admission to the halls of government.

Berger on Town of Greece and Praying While Smoking

The inimitable Peter Berger has this column on Town of Greece v. Galloway. Here’s the cleverly charming beginning:

In a Benedictine monastery there is a chain smoker. He smokes all the time. He smokes during work, during meals, even during communal prayers. He says that he would become seriously ill if he stopped. The abbot is solicitous about the smoker’s addiction, but this has become such a scandal that he feels constrained to consult the relevant authorities in Rome. He asks, “May one smoke while one prays?” Rome doesn’t act quickly, but after a few months the answer comes back –“No, one may not.” It so happens that a Jesuit is visiting on the day the reply from Rome arrives and the abbot tells him the story. The Jesuit thinks for a moment, and says: “You asked Rome the wrong question. What you should have asked—May one pray while one smokes?”

One could say that, in a decision of May 5, 2014, the Supreme Court of the United States was guided by Jesuit logic.

Remedies and the Religion Clauses: Reflections on the Jurisprudence of Tradition

The past few days have seen many criticisms from academic quarters of the Supreme Court’s reliance on historical evidence and practice to reconstruct the tradition of legislative prayer in reaching the conclusion that it did in Town of Greece v. Galloway. I have argued at length elsewhere that recurrence to long-standing and unbroken traditions of practice as themselves constitutional justifications is a sensible way to give presumptive meaning to open-ended provisions in the Constitution like the religion clauses. This is particularly so in the face of the tragically clashing values of religious freedom, where the elevation of one value as paramount will result in the loss of others.

True, other considerations of sufficient weight can and should supervene on the presumptive deference accorded to traditional practices. True also, the nature of a tradition may itself be contested and subject to different interpretations. The past speaks with many voices, as Martin Krygier has put it. So that the reconstruction and reconstitution of a tradition by a court will often smooth away rough edges; it must do so, as this is what law invariably and necessarily does—skeletonize fact, in Clifford Geertz’s phrase. The court’s reconstruction will not be the historian’s reconstruction because it cannot be. It will be a legal reconstruction—a judicial historiography. In this, tradition is hardly to be distinguished from the sorts of abstractions that courts and others often prefer to debate in this area of the law—equality, neutrality, and human dignity, to name only a few. But the reality of contestation does not mean that the idea of tradition or the substance of specific traditions are empty or somehow a fraud—any more than contestation about the idea of equality or neutrality or their specific applications mean that equality and neutrality are empty or a fraud. Because, like Rick Garnett, I believe that the core function of constitutional interpretation is not to resolve political division and disagreement, but to ascertain the meaning of words in a text (if that is what is meant by textualism, then I subscribe to it), the facts of a practice’s historical roots and duration are evidence of its consistency with the words of a law. Moral or political argumentation can, in unusual circumstances, trump such evidence. But those situations are, for me, exceptional. As I say, these are not extremely popular views in the legal academy. But they were controlling in Town of Greece. While legislative prayer may often be unwise as a political matter (and I believe that it is), the case was, in my view, correctly decided as a constitutional matter.

Yet in the balance of this post, I want to consider another feature of the case. What Town of Greece also shows is that the academy and the courts view the import of traditional analysis in legal interpretation in wildly different ways, assigning very different value to it. And the divide between the legal academy and the Supreme Court when it comes to the issue of the weight of tradition is not confined to the law of the religion clauses, or even to constitutional law proper.

In a superb new paper, The Supreme Court and the New Equity, Samuel Bray (UCLA) explains that what is “new” about the Supreme Court’s approach to remedies is that its methodology appeals to history and tradition. In a series of about ten cases in which the Court has been confronted in statutes with the words “equitable relief” or “equitable remedies,” it has reconstructed and re-entrenched the division of law and equity by relying on history and traditional practice. These statutes are authorizing courts to give certain specific kinds of remedies, not recommending that they do whatever they believe is politically or morally best in the name of equity. Bray writes that the Court has rejected the conventional academic wisdom of the past four decades and beyond—that there is no longer any viable distinction between equitable and legal remedies (this is seen most clearly in the difference between academic and judicial views about the continuing vitality of the irreparable injury rule). Here is Sam from the introduction to the piece:

[S]omething remarkable has happened at the Supreme Court. Over the last decade and a half, the Court has been slowly, perhaps even accidentally, laying the foundation for a very different future for the law of remedies. In ten different cases in nearly as many substantive areas, the Court has deeply entrenched the “no adequate remedy at law” requirement for equitable relief, and it has repeatedly underscored the distinction between legal and equitable remedies. The Court has shown no appetite, however, for reviving old distinctions between legal and equitable courts, procedures, or substantive areas of the law. Only in remedies—but there, with vigor—has the Court insisted on the historic division between law and equity.

The Court has not given a defense of perpetuating the division between legal and equitable remedies. Instead, at every point, the Court has supported its new equity jurisprudence by appealing to history and tradition. For example, in one of the new equity cases—a mere eight pages in the U.S. Reports—the word tradition or a cognate appears fourteen times.

The Court’s reconstructed tradition of equity is not fixed at any given moment. But neither does it recognize evolution or development. Rather, it looks, as Justice Kagan put it in U.S. Airways, Inc. v. McCutcheon, to “the kinds of relief ‘typically available in equity’ in the days of ‘the divided bench’ before law and equity merged.”

In relying on the history of equity to reconstruct a tradition of the division between equitable and legal remedies, sometimes the Court has gotten it quite wrong. It has made errors, and these have been rightly pointed out by legal historians. Sometimes these errors have been corrected by the Court; sometimes they still await correction. And yet, Sam writes that while the legal academic critique of the jurisprudence of tradition has been “stinging,” it has also been “incomplete.” As the jurisprudence of tradition was employed in an increasing number of cases, the historical errors decreased, the Court developed consensus about the boundaries of equitable remedies and about its own methodology, and the appeal to tradition sometimes restricted but also sometimes expanded the reach of equitable remedies. The jurisprudence of tradition matured.

Some legal academics have gone further in their criticisms. They have claimed that the “tradition” of equity is a fabrication—a fraud constructed by the Court—and that no such sharp-edged historical referent is even conceivable just exactly because the tradition is so ancient and so varied. But Sam resists this criticism, and quite rightly in my own view. The judge’s imperative is to interpret language and to decide cases, and it is in the shadow of this imperative that he looks to history. Here is Sam again, in a telling passage:

Judges are looking to history, but not for historical purposes. They must force unruly historical events through a decisionmaking process that will have binary results, such as liability or no liability, damages or no damages, guilt or acquittal, a jury trial or no jury trial, the availability of laches or no availability of laches, contempt or no contempt. Judges have no leisure for prolonged investigation, a series of monographs, a revise-and-resubmit. They do have some grounds for abstaining from making a decision, but there is no such thing as Incomplete Historical Record Abstention. Pressed to use history and pressed to decide, judges tend to emphasize the continuity of past and present. In this way, too, their use of history differs sharply from historical scholarship, in which the characteristic theme is discontinuity.

And yet this does not mean that the idealized tradition that judges reconstruct is empty or a phantom or a fraud. The tradition of remedies typically available in equity is not meaningless. Naturally there will be disputed questions at the borders, as there always are. But there are many questions that will be clearly settled by such an approach—indeed, this is what will make it possible for legal historians to criticize courts for clear mistakes (as when the Supreme Court misdescribed the writ of mandamus as an equitable remedy). As time goes on, the jurisprudence of the tradition of remedies typically available in equity will settle. It will mature.

The jurisprudence of tradition’s project to reconstruct an idealized history of equity is, in fact, a plausible middle course between the options of freezing equity at a distant historical moment, on the one hand, and imbuing it with amorphous exhortations to courts to be “flexible” or “adaptable” or to do “what is right,” on the other. These are the options available to a court confronted with the necessity to interpret and decide. Even more than that, however, the methodology of the jurisprudence of tradition highlights—helpfully—the perennial separation between academic and judicial functions, purposes, and roles. Perhaps there are lessons here for the religion clauses as well.

Bloomberg Law Interview About Town of Greece and Elmbrook School District

I was interviewed today on Bloomberg Law about the petition in the Elmbrook School District decision out of the Seventh Circuit and the possible effect of the Supreme Court decision in Town of Greece. You can download the podcast here. My segment starts at about the 7.30 minute mark.

Want to Understand the Possible Implications of the Legislative Prayer Case?

Then you should read these two posts by Kevin Walsh.

In the first post, Kevin explains the way in which Justice Kagan’s dissent lines up in important ways with the views of Judge J. Harvie Wilkinson in his opinion for the Fourth Circuit in Joyner v. Forsyth County (Justice Kagan explicitly relies on some language in Joyner, but the similarities in outlook run deep).

The second post discusses a pending cert. petition–the Elmbrook School District case out of the Seventh Circuit in which Judges Easterbrook, Posner, and Ripple authored dissents from the court’s en banc opinion–and what might happen to it in light of the Court’s holding in Greece.

Both issues are discussed at length in the article that Kevin and I wrote together–Judge Posner, Judge Wilkinson, and Judicial Critique of Constitutional Theory (see in particular Parts I(B) and II(C)). You should read that too!

Justice Thomas’s Concurrence in Town of Greece

One last expository post on Town of Greece v. Galloway, this one on Justice Thomas’s concurrence, which was joined by Justice Scalia as to Part II alone. There has already been a fair quantity of commentary on the case, but little of it has focused on Justice Thomas’s concurrence.

The Thomas concurrence is divided into two sections. The first part restates and develops Justice Thomas’s view, first expressed in Elk Grove Unified School District v. Newdow, that the Establishment Clause should not be incorporated against the states because the Establishment Clause represents a protection for the states against interference by the federal government in matters of religion. Like the Tenth Amendment, the Establishment Clause is not a protection for individual rights. The clause’s incorporation was simply assumed, wrongly and without argument, in the Everson case.

Some discomfited attention is being paid to Justice Thomas’s statement that “[a]s an initial matter, the Clause probably prohibits Congress from establishing a national religion.” How could he only say “probably”? But there is an explanation. The citation for this statement is the excellent book, Church, State, and Original Intent, by religious historian (and Center for Law and Religion board member and former Forum guest) Donald Drakeman. Here is Don at 260 of the book:

The strongest evidence from the constitutional ratifying conventions, the amendment proposals, the records of the congressional debates, and the ratification of the Bill of Rights points consistently in one direction: that Congress should be prohibited from establishing a “national religion.” The First Amendment thus succeeded in turning the hotly contested subject of church-state relations–which had already caused legislative battles in the states and would continue to do so virtually in perpetuity–into a “milk and water” amendment by focusing on the one thing no one wanted and everyone could unite against: a “Church of the United States.” There was no need for the various participants to agree on what that meant, and, indeed, interpretive disagreements arose as early as the first few decades, but, for this review of the understanding of the clause at the time it was adopted, there is no body of evidence that supports any more detailed sense of what the language meant to the people who voted for it or to the American public who received it.

There is therefore enormous uncertainty as to what the clause meant as an original matter (this is one reason that original expected applications originalism is so useful as to the Establishment Clause)–uncertainty that is reflected in the very spare historical record that reveals next to nothing about the clause’s historical meaning. Church-state arrangements in the early republic were, as they are now, deeply unsettled and contested, and the Establishment Clause was not intended to settle them. If the clause is read as Justice Thomas reads it–as a federalism provision–then one must make the inference (and it is an inference) that a national church was prohibited, since a national church would present a major obstacle to the freedom of states to decide on their own church-state arrangements. 

Part II of the concurrence assumes that the clause had been incorporated and then argues that what the clause proscribes is “coercion of religious orthodoxy and of financial support by force of law and threat of penalty.” Note that here there is a kind of unity with Justice Scalia’s view of the scope of protection afforded by the Free Exercise Clause. This “actual legal coercion” test–which the Justices distinguish from a “subtle coercive pressures” test (see Lee v. Weisman) involves the exercise of government power “in order to exact financial support of the church, compel religious observance, or control religious doctrine.” It is therefore unsurprising that Justice Thomas and Justice Scalia did not join Part II(B) of Justice Kennedy’s opinion dealing with the type of coercion required to make out an Establishment Clause challenge (assuming its incorporation against the states).

White on Justice Kagan’s Dissent in Town of Greece

Over at the The Weekly Standard, Adam White picks up and expands insightfully on Justice Kagan’s comments about the nature of American citizens’ relation to their government, which I had noted here. I had not known about Teddy Roosevelt’s remarks concerning “hyphenated Americans.” Here’s a bit from Adam’s post:

On the other side of this spectrum, at its far extreme, we find Teddy Roosevelt’s famous criticism of “hyphenated Americans“:

What is true of creed is no less true of nationality. There is no room in this country for hyphenated Americanism. When I refer to hyphenated Americans, I do not refer to naturalized Americans. Some of the very best Americans I have ever known were naturalized Americans, Americans born abroad. But a hyphenated American is not an American at all. This is just as true of the man who puts “native” before the hyphen as of the man who puts German or Irish or English or French before the hyphen. Americanism is a matter of the spirit and of the soul. Our allegiance must be purely to the United States. We must unsparingly condemn any man who holds any other allegiance. But if he is heartily and singly loyal to this Republic, then no matter where he was born, he is just as good an American as any one else.

Roosevelt reiterated a year later, “let us be Americans, nothing else.” Such sentiments find echoes, perhaps distant, in Justice Kagan’s dissent—at least when she urges each American citizen “performs the duties … of citizenship … not as an adherent to one or another religion, but simply as an American.”

These arguments cut across familiar political lines; indeed, I suspect that all of us occasionally harbor thoughts on both sides of the spectrum. Conservatives might today share DeGirolami’s concerns about Kagan’s dissent (and Roosevelt’s concerns about “hyphenated Americans”); but they might also have bristled, just a few years ago, at Justice Sotomayor’s suggestion that as a justice she would benefit especially from “the richness of her experiences.”

And conservatives are not the only ones who likely have seen both sides of these questions. Indeed, note that Justice Sotomayor herself joined Kagan’s dissent, despite the notes strikingly at odds with her own account of how each judge’s own background affects the judge’s work.

These considerations cut across partisan and ideological lines because there is at least a kernel of truth at each extreme. Americans should not stand before their government exclusively as representatives of particular “little platoons.” But it would be just as mistaken to race to the other end of the spectrum and assert that Americans must strip themselves of all prior attachments and experiences before engaging the public arena—leaving us with, in Father Richard John Neuhaus words, a “naked public square.”

I am not saying that Kagan intended to imply that our public square is and ought to be “naked.” Far from it—if anything, I suspect that she was just a little bit too casual with her opinion’s specifics. (In that respect, she would be in good company lately.)

But even if Justice Kagan was just speaking a little too casually, her casual overstatement is an interesting one. Her offhand remark—and DeGirolami’s response—ought to challenge all of us to think more seriously about what citizenship and civic duty truly entails.

Originalism and Town of Greece v. Galloway

Professor Michael Ramsey has a very good post on the degree to which Justice Kennedy’s opinion for the Court in Town of Greece v. Galloway is (and is not) an originalist opinion. He concludes that it reflects a kind of original expected applications originalism. I have always had more sympathy for original expected applications originalism than most, and the points in favor of using this methodology made by Professor Ramsey seem persuasive to me in this context. At any rate, take note, my Fall ’14 students in Constitutional Theory! A bit from Prof. Ramsey’s fine post:

It’s not (typically for Kennedy) an exclusively originalist opinion, but this is a strong originalist element. My question: is it the right sort of originalism? Answer: yes and no. 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.

I share some of this view, but not all of it. So I have some sympathy for Kennedy’s argument. I agree that what ultimately matters is the text, not what particular people (or even everyone) thought of the text. Further, what some people thought of the text may be a poor indicator, because the people cited may have been outliers, or making self-interested arguments. Expected applications must be treated with caution, and doubly so for views expressed after ratification.

At the same time, though, expected applications can be good evidence of what the text actually meant.  The text does not have a platonic meaning apart from what people at the time understood it to mean. 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. This seems especially true of a phrase (like establishment of religion) that may have been a term of art at the time but whose meaning has become obscured to modern readers. The enacting generation was much closer to the language and substituting our view for theirs seems problematic as a strategy for finding the text’s meaning in their time.

So I think the result in Greece v. Galloway is probably right, for at least some of the reasons Justice Kennedy states. But the analysis remains incomplete. Ultimately, an originalist analysis should tie the original expected application back to an original public meaning of the text (since it’s the latter that is what was enacted). That is, there should be a conclusion as to what the text means (consistent with legislative prayer being constitutional). The Court’s opinion does not make that connection. It’s core conclusion is, whatever the clause means, it must allow legislative prayer. But this does come close to saying that it’s the application, not the text, that matters.

UPDATE: I forgot to note a short, helpful defense of the use of original expected applications originalism in this paper by Professors John McGinnis and Michael Rappaport.

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