Posted on by Marc O. DeGirolami

Gratitude for Legal Traditions

I completed my law and tradition cycle of posts today at Liberty Law with this one,TP Banner Gratitude for Legal Traditions. Here is the rest of the cycle in one place:

And here’s a little bit from the beginning of the most recent post, which responds in part to Mark’s post on the subject:

The prospects for law and tradition are difficult to discern. This is in no small measure because the most frequent predictions about tradition’s future have little time for any traditions other than those of science and technology. And these generally are not presented as traditions but instead as repudiations of tradition—as simply rational responses to changing circumstances in the service of progress and present need. The prophets of the traditionless society never go quite so far as to strike out the traditions of science from their predictions.

Recently, my friends John McGinnis and Mark Movsesian engaged in an interesting exchange on the subject of tradition and contemporary politics and society. John argued that technology creates a culture and a politics relentlessly oriented to the future and deracinated from the past. Mark responded that traditions and traditional institutions survive, even today, because they speak to basic human nature and “most of us need the stability the past provides, the guidance of received wisdom.”

Each man makes his points. It is certainly true that substantive traditions—particularly substantive religious traditions—have been severely shaken by various contemporary tremors. They have been attacked directly and they have been weakened from within. And yet they have not been destroyed. Perhaps they cannot be destroyed so long as human beings are born to human beings. So long as parental care is necessary for the raising of children. So long as people seek to find meaning in an infinitely mysterious universe. So long as they depend upon rules, categories, and institutions which they cannot create ab ovo and for that occasion alone whenever changing circumstances demand it. So long as the autonomous acts of autonomous actors cannot achieve all of the ends that render life worth living. Just so long will people seek and find traditions, cling to them, and be grateful to them. Though they may become dissatisfied with them, human beings need traditions to live.

Posted on by Mark Movsesian

Tradition’s Future

TP BannerAt 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.

Read the whole thing here.

Posted on by Marc O. DeGirolami

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.

Posted on by Marc O. DeGirolami

Magna Carta’s Votaries, Skeptics, and Traditionalists

I have this new post on the subject of law and tradition at the Library of Law and Liberty, the fourth in my Tradition ProjectTP Banner 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.”

Posted on by Marc O. DeGirolami

“Tradition and the Judicial Talent”

Playing on TS Eliot’s famous essay, that is the title of the third entry in my Law and TP BannerTradition 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.”

Posted on by Marc O. DeGirolami

Law and Tradition: A Tradition Project Blog Series

Over at the Library of Law and Liberty, I am guest blogging for the month of TP Banner
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).

Here is my first post, Tradition and the Constitutional Curator. A bit from the beginning:

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.”

Posted on by Marc O. DeGirolami

Announcing the Tradition Project

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As reported in this story, the Center for Law and Religion at St. John’s University School of Law has received a major grant from the Bradley Foundation to launch the Tradition Project, a new, multi-year research initiative.

The project seeks to develop a broad understanding of what tradition might continue to offer for law, politics, and responsible citizenship. It will explore the value of tradition and the relationship between tradition and change in today’s world.

For its first event in Fall 2016, the project will bring together leading public figures, scholars, judges, and journalists for a lecture and workshops addressing the multiple meanings of tradition and the importance of tradition for American law, politics, and citizenship.

Through the project, the Center for Law and Religion aims to develop a broad clr-logo1and rich understanding of what tradition might continue to offer in cultivating virtuous, responsible, self-governing citizens.

For more information on the Tradition Project and the Center for Law and Religion, please contact the project’s co-leaders, Marc DeGirolami and Mark Movsesian.