Originalism, Tradition, and the Separation of Powers Transcript

Yuval Levin: 

All right. Hello, everybody. Welcome. I’m Yuval Levin of the American Enterprise Institute. And it’s my pleasure to welcome you in this room and those of you joining us online to what should be a fascinating and important conversation. We’re delighted to host today’s conversation jointly with the Catholic University of America’s Center for the Constitution and the Catholic Intellectual Tradition. I want to thank our friends at CIT, especially Joel Alicea and Derek Webb for partnering with us on another important joint conversation. 

The question that we’re gathered here to consider is on its surface a kind of methodological question, a question about how judges decide cases. But as often happens in constitutional law, the methodological question opens up onto something of a larger question, a question about the nature of the authority of the Constitution and even the nature of the connection between the present and the past and how we ought to think about the meaning of our legal tradition in a republic that means to govern itself by a written Constitution. 

Originalism, the idea that judges should understand the Constitution based on the words on the page given their meaning at the time they were ratified has become in a lot of ways, the dominant mode of judicial interpretation in the contemporary American judiciary. But in a way, as it has gone from being a dissenting voice to being that dominant mode of judicial action, originalism has also increasingly been reaching for another set of tools, clearly a related set of tools and yet a distinct one. And we’ve seen some on the court pointing increasingly to history and tradition more frequently in their thinking about the Constitution. This has happened on a wide range of issues touching on personal rights and administrative law and regulation, in some ways maybe also especially as our title today suggests around the separation of powers and the structural Constitution. And all these cases, the justices have looked not only to the founding era understanding of the constitutional text but also to something of a longer sweep of Anglo-American practice sometimes long before and also after the enactment of the Constitution and its amendments themselves. 

And that forces some complicated questions to the surface about whether originalism and traditionalism are the same thing or quite different, maybe even opposites. Are they both ways of looking to the past and trying to understand the meaning of the text as it’s come down to us? Is tradition a mode of somehow liquidating indeterminate text through practice or are they very different? And is tradition really a way of evolving from the original beginnings of the constitutional text and in a different direction? Does tradition maybe point towards something more like a living constitutionalism, living in practice? Or does it pull us back toward the original meaning of the text? These are difficult and important questions and will only get more important as originalists strive to operate as the dominant voice in the American judiciary, and to decide cases rather than fundamentally to criticize the excesses of a court that fails to look to the text. 

We have, I think, a really ideal group of scholars with us to think about this complicated set of questions this afternoon. Stephanie Barclay from Georgetown Law, Charles Barzun from UVA, Marc DeGirolami from The Catholic University of America. They’ll take up these questions from a variety of angles and really try to think through their depth. And a conversation between them will be moderated by our friend Derek Webb from Catholic University. Derek will introduce the panelists and so let me just open by saying a word about him and turn things over to him for that conversation. 

Derek Webb is an Assistant Professor of Law at Catholic University at the Columbus School of Law. He’s widely published in law reviews. He’s working on a book that I’m very excited about, about Washington’s cover letter for the Constitution and what it ought to teach us about conciliation in a divided country. Before coming to CUA, he spent some time at Yale Law School at Georgetown. He clerked for the great Jeff Sutton on the Sixth Circuit. Derek is really, in a lot of ways, a model of what it looks like to work at the intersection of intellectual life and the law. He’s also the only legal scholar I know of who has been cited by the King of England in front of Congress, that happened just this month. And I don’t know how you’re even… Have your feet on the ground at this point there. It’s hard to imagine what that must have felt like. 

Derek, as I say, will introduce our panelists. They’ll each speak for a bit and offer their view of this large set of questions and then they’ll talk to each other. 

Derek, with that, the floor is yours. 

Derek Webb: 

Thank you very much. Thank you. Thank you very much, Yuval. And good to see everybody here today. 

I’ve had an opportunity to read through the scholarship of our panelists today, and Professor DeGirolami, also my colleague at CUA has a line in one of his essays on traditionalism arising where he says that even the very word tradition can sometimes leave people just screaming and running away. Congratulations to all of you for not doing that and staying put and being ready for this conversation. It’s my honor to introduce three wonderful scholars and real friends too. Let me go in order in which you’re going to hear from them. First, Professor Stephanie Barclay. Professor Barclay is a professor of law. 

Charles Barzun: 

A last minute change. 

Derek Webb: 

Oh. Is there… What’s the… 

Charles Barzun: 

I mean, you can do the order of the same but … 

Derek Webb: 

Oh, I’m going to go first? 

Charles Barzun: 

I’ll go second and then Stephanie. 

Derek Webb: 

Got it. Well, I’ll still stick with this introduction- 

Charles Barzun: 

That’s fine. 

Derek Webb: 

…and then you can let me know. 

Stephanie Barclay: 

Sorry. 

Derek Webb: 

That’s fine. Thanks for letting me know. Okay. Professor Barclay is Professor of Law at Georgetown University Law School and the Faculty Director of the Georgetown Center for the Constitution. Her research focuses on the role of our different democratic institutions and how they play in promoting and protecting minority rights, particularly at the intersection of free speech and religious exercise. Barclay’s work is published or is forthcoming in leading journals such as the Harvard Law Review, the Chicago Law Review, the University of Pennsylvania Law Review, and the Yale Law School Journal Forum. Her work has been featured in many media outlets, including the New York Times, the Wall Street Journal, the Washington Post, USA Today, and Bloomberg, BNA, The Hill, and Law 360. And her work has been cited by the US Supreme Court. 

Prior to joining Georgetown, Barclay was twice voted Professor of the Year. Barclay has also litigated constitutional cases at both the trial and appellate level, including both the US Supreme Court… before the US Supreme Court. Barclay also served as a law clerk to Judge Randy Smith on the US Court of Appeals for the Ninth Circuit and to Justice Neil M. Gorsuch of the US Supreme Court. Professor Barclay is a faculty affiliate at the Constitutional Law Center at Stanford Law School and is a Newt Barr Fellow at the Newt Barr Institute on Law, Religion, and Ethics at Pepperdine University. She currently serves as the chair for the ALS Law and Religion Section and is a member of the executive committee for the AALS Constitutional Law Section. She graduated summa cum laude from BYU Law School where she was elected to the Order of the Coif. She now has her Ph.D. in Law at Oxford University as a Clarendon Scholar and a Tang Scholar. 

Charles Barzun joined the faculty of the University of Virginia in 2008. His areas of interest include constitutional law, torts, evidence, and the history of legal thought. He also serves as a faculty advisor for the dual-degree JD/MA program in legal history at the University of Virginia. After receiving his undergraduate degree in government at Harvard University in 1997, Barzun worked in corporate and product development at CNet Networks an internet media company in San Francisco. In 2005, he received a JD/MA degree from Virginia. During law school, he served as a notes-development editor of the Virginia Law Review and won the best note award for his student note, Common Sense and Legal Science, which I think he’s still thinking about those topics still today. After graduating, he clerked for Judge Robert D. Sack of the US Court of Appeals for the Second Circuit. Prior to joining the faculty of UVA, Charles was a Climenko fellow and lecturer at Harvard Law School. 

And finally, Professor Marc DeGirolami is the inaugural St. John Henry Newman Professor of Law and Co-director of the Center for Law and a Human Person at Catholic University. His publications include the Constitution of Practice on Law and Tradition forthcoming with Cambridge University Press and the Tragedy of Religious Freedom, Harvard University of Press, as well as articles in the Yale Law Journal Forum, Notre Dame Law Review, Washington University Law Review, Constitutional Commentary, Legal Theory, and the Boston College Law Review, among other things. He has written in the Popular Press for the New York Times, the New Republic, First Things, Commonweal, and Law and Liberty. Before joining Catholic University Law School in 2024, he was the Cary Fields professor of law and the co-director of the Mattone Center for Law and Religion at St. John’s Law School. He’s also been a visiting professor and visiting fellow at Princeton University’s Department of Politics, as well as a visiting professor at Notre Dame Law School and Catholic University Law School. 

And of course, he teaches constitutional law, constitutional theory, criminal law, freedom of speech and freedom of inquiry, jurisprudence, law and religion, professional responsibility and torts. And he was just this year named the best law professor both for 1L students and overall at Catholic University. He is our superior, my superior in all respects. 

We’ll begin with, I believe 

Charles Barzun: 

Yeah, I think I’m starting now. 

Derek Webb: 

…Charles kicking off. And then I think the order will basically be each of our presenters will speak for about 10 minutes or so and then followed by Q&A and then eventually we’ll open up to questions from the audience. 

Charles Barzun: 

Should I go up there or we can do it from our seats? 

Stephanie Barclay: 

Charles Barzun: 

Okay. 

Derek Webb: 

Yeah, I think that’ll be great. 

Charles Barzun: 

I can do that as long as I can fit this thing up here. Can I do that, I hope? 

Yeah, I think that basically works. Thank you so much… I have the mic here so I don’t really need this. 

Thank you so much for inviting me here. I’ve never been to this building before or to AEI so this is a tic for me. I’m going to talk today about this question about whether originalism and traditionalism are intention with each other or consistent with each other. Although that really depends on what one means by originalism. Basically, the shape of my short talk is just going to be to distinguish a few different kinds of originalism, talk then further about traditionalism or a kind of originalism that is consistent with traditionalism and then draw out some of the implications. And basically, the point is going to be just that if we think of traditionalism as something that evolves over time, it’s going to raise the same kinds of questions that living constitutionalists have had to deal with. And so, if it’s consistent with originalism, that means originalism does too. In a way, it’s a kind of fusion of different traditions here. 

First, with respect to originalism versus traditionalism, I think it’s the most intuitive understanding of originalism would see them as opposed in this respect. Originalism in theory is the motivating idea, the motivating legal philosophy of originalism is the idea that law derives its legitimacy or its authority from a single act that expresses a will that has moral significance, in particular, a democratic will. The founding is important because at that moment the whole country came together and authorized the Constitution. That fits that model of legal authority, it fits the civil law tradition, and in our own system, the model of statutory law. Traditionalism, on the other hand, seems to flow from a very different understanding of law, one more associated with the common law, customary law, and so forth. The idea here is that law derives its authority or its legitimacy from its capacity to reflect the organic habits of a people that reflect a kind of consent over time. These are very different ways of understanding law and traditionally they have been seen to be opposed. 

More recently, however, there are at least two and there may be more, but I think two very prominent understandings of originalism that could take on board a lot of the understandings of traditionalism. And by the way, I haven’t really defined traditionalism and nor will I except to say that something that looks to practices, to actual practices in political, social, or economic life. And I’ll leave it to Marc and Stephanie to specify more concretely than that but that’s my rough understanding. 

On one view of originalism where they’re consistent, the point would be this, what sometimes goes under the distinction between interpretation and construction. People who say that originalism requires deference to the original public meaning of originalism, that’s a school of thought, that is they draw a distinction between the meaning and then application of a term. Discerning the meaning is a purely linguistic, sociological, empirical endeavor to figure out what the communicative content of some provision was. But then there’s a further question of how we turn that into law, how we construct that or apply it to particular facts. 

Now, often this school recognizes the law is vague, the terms are vague or indeterminate and that requires an act of construction, that whereas the first kind of inquiry interpreting linguistic meaning is just a kind of linguistic exercise. When you’re engaged in construction, you’ve got to make normative judgments about what is going to be best served constitutional principles or purposes. That’s one view under which tradition might be relevant because it might be thought as we are filling out and constructing the constitution over time, we ought to look at what those traditions are as a source of guidance, the habits and practices that have developed. 

Another view of originalism, what’s sometimes called Original Law Originalism associated with the work of Stephen Sachs and William Baude, the constitutional scholars, is the idea that what we owe deference or what originalists should be concerned about is original law which means the law at the founding, unless that law has been legally changed in some authoritative way. Now from that we can make the observation that, well, the law at the founding, the Founders, well, they believed in natural law, they were participants in the common law of tradition and they talked a lot about general law. I’m not going to define all of these terms but all of them are much more open-ended than looking to a particular text at a particular time. They seem to involve looking to habits, traditions, practices, and require sometimes making moral or normative judgments. 

Okay. I’m just going to assume that one of these two views is a plausible or correct interpretation of originalism. I’m not going to defend that view. I’m just going to assert it and then assume it for the sake of further discussion. Let’s say on one of these views, tradition is relevant and they can be consistent. I want to say three things about this, three kinds of implications of this. One is it requires treating traditions as genuinely authoritative practices about the meaning of the Constitution and constitutional purposes. Second, that those authoritative practices are only presumptively authoritative, that is they can be overridden by other kinds of constitutional considerations. And finally, that in making that determination as to whether a practice or tradition should be overwritten, the historical circumstances in which that tradition arose are relevant to the legal analysis. Those are three points. Let me say a word further about each. 

First, tradition is a genuinely authoritative practice by which I mean that we look to traditions as guides for understanding what serving the purposes of the Constitution requires. We defer to those practices. If there was no deference, if it was just, we’re doing it because it’s a good idea, take something like congressional restrictions on removal of power. If the thought was, well, that’s just important because of the nature of political life or something like that, it flows necessarily from some important truth, then the fact that we have done it for many years isn’t doing a lot of work in the argument. What has to be true of taking traditionalism seriously is that it’s the mere fact of the practice or the tradition is part of the reason to defer to it. 

Now, the assumption on which that is true when which that seems plausible is that the people developing those practices had an understanding of what the constitutional purposes were, had a clear understanding of it and were free to develop it as they saw fit so that those practices reflect their knowing and voluntary participation in that practice. And then if it endures over time, then there’s a kind of notion that it has survived the so-called test of time. Think of all the different metaphors we use for that kind of thing, survival of the fittest in the context of evolution. The crucible of experience, they talk about the common law or as they traditionally sometimes would say that it’s the common law working itself pure, that idea is what survives does so for a good reason. We trust the practice that has survived in that kind of way. 

Okay. But the second point is that kind of trust or deference to those practices is clearly not absolute and that seems obvious the moment one thinks about it for a second because there have obviously been practices and customs that have endured for a long period of time, see slavery, Jim Crow, et cetera, that are clearly not faithful to the Constitution and its purposes. That does not mean that traditions always improve or we no longer have slavery. Thank goodness. But that was not because of necessarily the common law working itself pure, that took a war to sort it out. 

The question is, when should we abandon certain kinds of traditions? When is that presumptive deference to be overcome given that it’s not absolute? And the answer to that question or answering that question leads to the third point, which is that in making that determination about whether a tradition requires deference, it clearly requires some kind of moral judgment about the moral adequacy of the tradition. But sometimes in the case of slavery, that’s clear. It won’t always be so clear, right? Sometimes the moral inflection of it won’t be as obvious. Another thing that is relevant in addition to one’s first order judgment about what is consistent with the Constitution is the historical circumstances surrounding it, and that’s because those historical circumstances bear on whether the assumptions underlying the deference hold. Let me explain what I mean by that. 

Again, the assumption is that the practices of people deserve deference because they have understood, the participants in those practices have understood and freely participated in the construction of constitutional practices. But you might think those don’t hold so let me give you one example. In a famous case from the ‘90s, a federal court’s case about sovereign immunity, Justice Souter in dissent made the following kind of argument, the majority had relied on an expansive understanding of sovereign immunity relying heavily on that 1896 case called Hans versus Louisiana and saying that this is what the 11th Amendment requires, this is what sovereign immunity requires, Congress can’t take away sovereign immunity under these conditions, et cetera. The doctrinal points don’t matter that much, what matters is what Souter said. 

Souter said, “We can’t trust Hans versus Louisiana.” You know why? Because that happened in Louisiana in 1896, the federal troops had fled the South after reconstruction had ended, there was no way the Supreme Court could have enforced their decision the other way. The court actually just decided that Louisiana was immune from suit because it was worried that it couldn’t enforce its judgments and would look bad. There, one of the assumptions on which deference typically depends does not hold. Namely, the court did not think it had the power or the capacity to implement what it understood its constitutional purposes to be. Now, what’s interesting is that in the majority opinion, Chief Justice Rehnquist said that the dissent’s explanation of this case did a disservice to the court’s traditional method of adjudication because it gave this political explanation of one of its prior decisions. And that’s true and it’s not typical. But it is implied by, it does make sense in terms of the understanding of the role that tradition, including precedent, plays in constitutional argument. 

Why does this matter? This points to what I think is the animating impulse behind what is typically known as living constitutionalism. Living constitutionalism is the idea that there is a certain kind of learning or progress over time and that we can make judgments, there are ways of making judgments about what kinds of practices to continue and which kinds of ones we should not. For instance, a classic example of living constitutionalism is the Obergefell decision or the gay marriage cases or the gay rights cases in general where the logic is something like the practices which restricted marriage to a man and woman were not giving expression, were not made under full knowledge and freedom. People didn’t understand certain things and people didn’t have the freedom to say what they really thought. People didn’t have knowledge- 

… freedom to say what they really thought. People didn’t have knowledge often whether about themselves or about their family members that distorted these kinds of traditions, so this is just showing how one way that traditions change or evolve is by paying attention to the conditions under which those practices were formed. Now in a sense, to say this is just to acknowledge a problem, it’s not an answer, because what it suggests is if we’re looking to traditions, we have to figure out when to abandon them and when not to. 

And in addition, we have to look to which kinds of practices matter, and scholars and courts look to different kinds of practices. You might look to social movements, right? On the political left that’s where they tend to look as an expression of democratic agency and understanding. You might look to customary practices of the habits of social life, you might look to governmental practice, you might look to Marcets, something that the American Enterprise Institute needs no saying, right? Marcets are organic reflection of people pursuing their own interests in a way that reflects perhaps their understanding of what is in the constitutional purposes. In any case, this question of whether and when we abandon or continue certain kinds of practices is a hard one and that’s just the beginning, but my only point is that it is not only a problem for living constitutionalism, it’s also a problem for traditionalism and perhaps also even originalism. 

Speaker 1: 

Thank you. 

Charles Barzun: 

Hope I haven’t gone too long. 

Marc: 

Let’s see here. 

Stephanie: 

That was great. 

Marc: 

All right, well, thank you very, very much. I’m delighted to be here. Thanks to Yuval and to Joel for organizing this, and to my colleagues, Charles and Stephanie, whom I’m very honored to be appearing next to, and of course to my junior colleague and friend, Derek, for introducing us and for herding us. 

So I want to say a lot of things about what Charles said, but I’m going to talk about something else and I’m going to talk about this. So in a recent lecture that I very much recommend to you, my colleague and friend, Professor Joel Alicea, described traditionalism together with Professor Adrian Vermeule’s common good constitutionalism as natural law influenced non-originalist constitutional theories. And so what I’d like to do in my time is to pursue Joel’s insight a little bit and to talk about the emergence of this new phenomenon, that is to say constitutional theories that we might collectively describe as from the right that are in some sense not or not interested in or just not originalist. And I picked Professor Vermeule’s theory, because it’s a very prominent theory and because it has, I think, many adherences among young people. 

So, a first preliminary, what do we mean when we say that a constitutional theory is influenced by natural law? And here I’m going to follow Joel in thinking that by natural law we’re talking about in broadest terms, and this is a quote from his essay, “Those principles and precepts that conduce to the human good and are knowable through human reason. Natural law theory holds that there are objective goods understandable in light of human nature that we can identify through reason, which also means that there are objective moral wrongs.” And skipping ahead, the traditions most well-known thinkers include Aristotle, Cicero and Aquinas. Okay, that’s preliminary number one about what I mean by natural law. 

Second preliminary. In light of that definition, how are traditionalism and common good constitutionalism in some sense natural law or natural law influence theories? And here I’m going to be painting in broad brushstrokes, but traditionalism is a theory of what constitutes our constitutional law that looks to, at least in the way that I’ve tried to describe it, enduring political practices that have presumptive force for determining that law. Why does it look to those practices? Well, because at least in part, it holds that enduring political practice determines law within the limits set by natural law as it discloses the law’s virtues over time in various domains of political life. So we acquire various legal and political virtues as a people through the process of this iterated practice, and this is how we bind ourselves to our Constitution and how we bind ourselves to one another as citizens. 

So, traditions operate in the realm of what St. Thomas Aquinas called determinatio. Broad principles of natural justice, natural law justice constrain our choices, they set outer limits on the range of our laws, but within that range, Aquinas says that people may manifest their lawmaking powers through custom as, “Things done repeatedly seem to proceed from deliberate judgments of reason.” And this is the way Professor John Finnis puts it, “Precisely what rules should be laid down in order to constitute such a regime is not settled, determined by the general requirement of justice. Reasonable choice of such rules is to some extent guided by the circumstances of a particular society and those circumstances are not unfettered or arbitrary, but are instead shaped by the authoritative…” Here I’m going to pick up on something Charles said, “Authoritative force given to usage, practice, custom.” 

So, that’s on traditionalism side. What about common good constitutionalism? Well, as I understand it, this is a theory that applies, and here I’m quoting, “The core precepts of the classical legal tradition to interpret the Constitution.” So for common good constitutionalism what’s crucial is in fact the arbitrariness, in the sense of the relatively open discretion in the intermingling of reason and willed human choice by those wielding political authority permitted to prudential decision-makers in formulating these determinations. That discretion a theorist like Professor Vermeule says, “Given shape by an account of the ends for which discretion must be used that of promoting the good of the whole community as a community.” Okay, so those are my two preliminaries, the rough meaning of natural law and the rough sense in which traditionalism and common good constitutionalism are natural law influenced theories, and now I’m going to reflect on some similarities and then I’ll conclude with some differences. 

A first similarity is that they’re both interested in the concept of the political as an intrinsic good and in the relationship of the political to constitutional law. So by the political, I mean what the philosopher Pierre Manent has called the common thing of the community. What constitutes good constitutional government? Both traditionalism and common good constitutional have this feature of the natural law, the nature of the political good very much in mind. Both oppose the view that constitutional law or even law generally is detachable from the political project. Both think it’s a mistake to believe that these concepts are strictly separable from one another, and I think with Professor Alicea, both think that constitutional theory must engage with moral truth claims, and those moral truths will often concern the nature of the good political community. So, that’s similarity number one. 

Second similarity. Both traditionalism and common good constitutionalism share a renewed emphasis on the sustained development of the classical virtues or excellences of constitutional government as the end of constitutionalism in general. I’m going to start with this point about in general and then in my discussion about differences between the theories, I’m going to talk about American constitutionalism in particular. But in general, both theories resist a kind of American constitutional exceptionalism, a view of constitutionalism that sees the American constitutional situation as cut from entirely different cloth and so cut off from other constitutional cultures. 

They both see “constitutions” of which our Constitution is just one relatively late arriving example as political regimes. Constitutions including ours are systems of political union. They’re founded for common advantage, or as ours happens to put it, “to promote the general welfare.” The reason to have a Constitution is to achieve some shared political good or sets of political goods. It’s a symptom of our impoverished understanding of our own Constitution that people usually don’t think of it, let alone try to explain or defend it in terms of the excellence that is its reason for being. 

Constitutional law is generally taught with no thought at all about just who we the people is or what binds it. Professors just skip right past that to structure and rights. They avoid, theorists do, or only offer thin accounts of what makes for an excellent polity. Sometimes just thinking that it’s obvious, it’s something like freedom or something like this or some other abstract creedal commitment that doesn’t go to the deeper question of what makes a people. But when the Constitution talks about achieving a more perfect union and striving for justice and promoting the general welfare, it’s memorializing the idea that political perfection in the union of the people is the end of constitutionalism. 

So this second similarity that the United States is not entirely exceptional in its constitutionalism, that the excellences of political union of the people need to be at any constitution’s heart, that puts, it seems to me, common good constitutionalism and traditionalism on one side of a debate against other theories that do take an exceptional view of the American situation, and suppose that this exceptional status exempts the United States from having to think about who the people really is, who the people is and not who some people who just happen to live next to one another are. 

Yes, we have a text, but that text does not fundamentally change the ends of constitutionalism in America or remove American constitutionalism from the classical tradition of constitutionalism as it existed before the country came to be and adopted its text. This disagreement I will add goes a little bit to the creedal nation versus cultural nation debates that are rather hot right now in areas like the Citizenship Clause issue. And I would say even if you’re inclined to take the creedal nation view, you would be well advised not to ignore culture and tradition. Cultures, social, religious, intellectual, these are the contexts in which creeds emerge and in which they are sustained. So, that’s a second area of similarity. 

Final area of similarity. Both theories believe in, “the law as connected to some kind of metaphysical reality.” Indeed, that the law is connected to God’s providence and the eternal law mediated by the particular determinations of legislators and the people. It seems to me that the theories share a view connected to this older metaphysical dispensation. Whether the commentator is Thomas Aquinas or John Fortescue or Edward Coke or William Blackstone, or the judge is John Marshall or James Kent or Joseph Story or George Sutherland. Even though constitutional law implicates the discovery of the will of the lawmaker, more is needed for law than simple enactment. So for traditionalism and common good constitutionalism, the law is in some sense recursive. It is cycling back to the eternal law as manifested in the intentions of the legislator, the law’s text and the concrete practices, customs, and traditions of law and politics that are ordered by it. 

So, those are three similarities. Here are quickly three differences, each of which relates in some way to the three similarities. Difference number one. I’ve said that both traditionalism and common good constitutionalism generally operate at the level of determinatio within a natural law framework. One big difference involves the process and constituents of determination. Professor Vermeule and Professor Conor Casey emphasizes, I’ve said, the arbitrariness of decision by those in power in the sense of the relatively open discretion to exercise judgment. That view of determination of the natural law also explains their preference for technocratic administrative rule. Their determinations are made by the arbitrary moral reasoning within the limits set by the natural law of the political authority, whereas the sort of view that I advocate is more organic. Enduring practices diffused across space and time determine constitutional law within the limits set by the natural law. To be sure, judges are going to be the ones telling the story, but the raw material is in those practices. So that’s an important methodological difference, it goes to a second and deeper difference. 

In discussing the second similarity that traditionalism and common good constitutionalism share, I mentioned a renewed emphasis on the sustained development of the classical virtues or excellences of constitutional government as the end of constitutionalism in general, but what about American constitutionalism in particular? Traditionalism is very much concerned to cultivate the particular excellence of American constitutionalism in democratic republican government. What sits at its core is an ambition to reconnect the American people to their basic charter of governance by giving them greater agency in determining the law of the Constitution by fostering affection for the Constitution and for one another. 

Common good constitutionalism, as far as I can see, is not particularly interested in democracy or republicanism. Not much in it is particular to American law, politics, history. In fact, common good constitutionalism’s emphasis on the classical legal tradition traceable to Roman law seems to sideline the distinctively American notion of dual sovereignty. The upshot of common good constitutionalism is that the states become mere municipalities of the Imperium. The federal government becomes part and parcel of a larger system of international law, individual rights are defined by the views of people working at the nerve centers of power. I should say this is as it happens not too far from the system that we actually have, so for all of the controversy that Professor Vermeule’s theory has caused it’s actually quite conventional in many ways. 

Connected to the second difference is the relative trust or mistrust in experts and elites latent in these approaches, it’s a dispositional difference too. Traditionalism is something of an anti-theoretical theory, and that’s partly because I suppose I don’t like or trust the very smart and highly educated or sophisticated as much as I should. 

Last difference related to that third metaphysical similarity. Because of common good constitutionalism’s top-down orientation, it might appear to be more overtly or pronouncedly natural law influenced than traditionalism. It’s certainly true that common good constitutionalism is reliant on Aquinas’s view of the nature of law, because it emphasizes one of the core features of Aquinas’s definition of law, the common good right in the title. To the extent that common good constitutionalism assumes as I have claimed a certain metaphysics, it aims to reintroduce that metaphysics by what we might call a very direct route from the top down. 

What about traditionalism? How is its natural law metaphysics different? Traditionalism fuses considerations of reason, character, virtue, and emotion, what I’ve called affection in constitutional law. It’s deeply informed by Aristotelian thought, especially in the sense captured by Alasdair MacIntyre here. “The discovery of a directedness in ourselves toward a final end is initially a discovery of what is presupposed by our practice as it issues in a transformation of ourselves through the development of habits of feeling, thought, choice and action that are the virtues, habits without which, even if impartial and imperfect forms we are unable to move toward being fully rational agents. Only secondarily as we articulate at the level of theory, the concepts and arguments presupposed by and informing our practice, are we able to recognize that we have had to become some sort of Aristotelian.” 

So while there is this metaphysical connection, it seems to me that traditionalism says, look, there’s a steep cliff separating where we were at the close of the 19th century and where we are now, and any viable metaphysical recovery has to proceed by a slower, longer, more circuitous route than is proposed by common good constitutionalism. That is from the bottom up rather than from the top down. Thanks very much. 

Stephanie: 

That’s great. Okay, it’s such a treat to be here. Thank you so much to Yuval and Joel for organizing, and to Derek and Marc and Charles for this great conversation. Let’s see, are my slides going to be up on the screen now? Okay, great. Fantastic. Okay, so we’ve been hearing from Charles about ways in which tradition is used differently and sometimes similarly between originalism and living constitutionalism. Marc is discussing some of the differences in terms of how tradition might be used between common good constitutionalism and traditionalism, and I’m going to talk a little bit about some of the intra-originalist debates about how tradition might be relevant, including justices who adhere to an originalist school of thought. 

So if you’re an originalist, this is at least what some originalists say, and certainly Justice Barrett, for example. She would say that originalists do use history for a variety of contexts, sometimes that involves tradition, but the most important one is to provide context for constitutional meaning. So it is informing the commitments, the decisions, the changes that the constitutional ratifiers or relevant constitutional makers were making. So that includes history is going to be most important during the ratification era, including years shortly after and following, and pre-ratification era to illuminate some sort of preexisting legal norm that’s being codified or incorporated in the constitutional document. 

Why might we also be interested in history or tradition that don’t fall within that category? Well, because tradition might operate even for originalists as a type of precedent, not unlike judicial precedent, so if our political branches have been doing something for a really long time, even if that didn’t start in ratification era, those political branches are often entitled to some level of deference. Some justices, Justice Birt would say that deference doesn’t override original meaning if it’s clear that what the political branches are doing is inconsistent with original meaning, but it’s a type of precedent that tradition moving forward. 

It might also be the case that some judicial doctrines require courts to look to tradition that extends well beyond or goes well before the ratification era. So the Glucksberg test that the Supreme Court applied in Dobbs, which is looking to whether some sort of right is deeply rooted in our nation’s history, that’s not limited to ratification era, and so there are reasons why even originalists would be looking to tradition beyond ratification era, and they’re still doing originalism if they are, they’re just respecting those sorts of precedents. International Shoe is another one. 

So these are some things that I think, and originalists debate about this, what history can’t or shouldn’t do, what we shouldn’t expect traditions or history to do. First of all, sometimes history is not emblematic of the relevant constitutional commitment. Charles touched on normative reasons why that might be the case, but I want to talk about historical reasons, empirical reasons why the history at the time might not be something an originalist would want to look to. 

I think Justice Barrett was right, and I’ll come back to this, that history doesn’t let courts skip the hard work of creating implementing doctrines in some context where they need to do something to implement that historical meaning. Some history, as Professor Joel Alicea has noted in his article, some history may just be incidental or contingent rather than substantive to a right. That might just incidentally have been how we were regulating, that doesn’t mean that it was into the right. That might just incidentally have been how we were regulating. That doesn’t mean that it was inherent in the meaning of the constitutional provision. 

And then post ratification era history, long post states the ratification era I don’t think tells us anything about the constitutional meaning. This is a debate that some of the justices, originalist justices are having in Vidal, Samia and Rahimi. History also doesn’t allow us to assume that here I said courts, but I should have said other government actors were regulating to the limit of their power. So this is a point Justice Barrett made just because Congress didn’t, during the founding era, cover the US Capitol and pink and purple polka dotted blankets for April Fool’s Day does not mean that Congress could not do so now if they chose to celebrate April Fool’s Day that way. So the silence of government action doesn’t necessarily mean historically that we must presume government can’t do those things or different branches of government are robbed of that power now. 

How do we decide if history is emblematic of constitutional meaning? This is one of the most important questions. One, again, Charles was saying maybe we have to look to normative questions if we’re saying the history of Plessy versus Ferguson isn’t the type of history that should guide our action moving forward. Let me give maybe a different way of thinking about this. It’s just like a more empirical question. In the Second Amendment context, for example, with some caveats and limitations, we were largely happy with a lot of the English common law right to keep and bear arms. So we had this longstanding statutes that went back to 1181 and 1285, 1689 that have deep protections for the right to bear arms under English common law. There were some things we didn’t like about it that were religious distinctions about who could bear arms. There were class created distinctions in who could bear arms. 

So when we were incorporating this important right in our constitutional document, we modified it some. We were like, “We can have the right to bear arms regardless of what someone’s religious affiliation is. We’re discarding that piece of the right.” But a lot of it remained intact and in which case that history, that rich history is really relevant to understanding what was the content of the right that was mostly emblematic and that the Second Amendment was meant to be incorporating. In some ways, the establishment clause is like the same only backwards. So we have a pretty clear understanding of what was going on with established religions at the founding. We have a rich history of that. We’re telling the federal government, “That rich history that has been going on, we don’t want you to do that. Hands off federal government. So states are allowed, but you are not.” 

But it does mean that when we have other sorts of historical analogs like the first Congress, the same Congress that drafts and approves the establishment clause also authorizes legislative chaplains to give prayers in both chambers. That strong evidence that whatever the framers of the Constitution thought was going to violate that provision of the establishment clause, it wasn’t something like legislative prayer. When you have those same sorts of constitutional actors who are engaging in that history, providing that sort of historical analog. And I think the Supreme Court was right about that in cases like Town of Greece. 

So freedom of speech is more of a mixed bag. This is something scholars continue to debate. Is the Alien and Sedition Act representative emblematical of freedom of speech or is it more a counter example, an area where we were falling short of the constitutional commitment that had been made over a decade before? So let me make the argument that some have made, including Michael McConnell, for why this is probably better understood as counter history, not emblematic history. So among the 138 member seats across the two chambers during the full Congress that passed the Constitution, something like three to five signers of the Constitution, or excuse me, that passed the Alien and Citizen Act, only three to five members of the Congress that had passed the Constitution were seated at that moment. 

And we didn’t have much of an overlap, only 10 to 13% overlap between the first Congress that is introducing the Bill of Rights and the Congress that passed the Alien and Sedition Acts. So unlike the establishment clause context where the exact same constitutional actors are making legislative prayer constitutional the week that they are introducing the establishment clause, we have very different constitutional actors here engaging the Alien Sedition Act. 

We have a President Adams as part of the constitutional discussion who has a much more robust notion of freedom of speech and who shifts and embattled President Adams, who doesn’t really like his political opponents, has a more crabbed approach to freedom of speech. I submit to you that the version President Adams articulated as part of the constitutional debates where he was closer to something that’s like behind the Rawls’ veil of ignorance. He doesn’t know how that’s going to cut. That’s better evidence of the type of constitutional commitment we were making for freedom of speech than later when he wants to marshal political power against his political opponents. And there’s arguments that the election of 1800 presidential pardons that come afterwards were ways in which our country was rejecting perhaps as part of constitutional liquidation the history of Alien and Sedition Acts. 

Okay. Then maybe an example where some of our history is least emblematic, certainly through English common law of the right that we were trying to instill in our Constitution is religious exercise. This is a significant break from English common law. The big impetus of why we came to establish this country was we weren’t happy with how religious exercise was being protected or lack thereof in the old world. So there’s certainly some intellectual tributaries, the framers that were relying on Locke, dissenting traditions, and other 17th century writing. So it’s not as though there was no other influences that were relevant for how we thought about free exercise, but it was a break from the practices. Many of the practices that were going on, both in England and the colonies, I would submit things like blasphemy laws weren’t emblematic of the type of protection we were trying to offer. 

And I think it’s predictable that in a constitutional context where we’re trying to turn this ship around where we’re saying “We have been doing X and we ought to do Y and so this constitutional commitment is enacting significant change, that there would be more stumbles along the process,” as opposed to if we’re saying, “We’ve been doing X and we want to do slightly modified X. We just want to make sure that we have incorporated it so it’s crystal clear that slightly modified X is part of our constitutional tradition.” You could make a similar argument for what was going on with the equal protection clause. We were not happy with how members of society were being treated who were people of color. We weren’t happy with the type of discrimination, obviously slavery that was going on and we were making radical changes. Many of those who had gone about engaging in racist activities, when they regained power in government, we shouldn’t be surprised that they continued to try and find ways for those sorts of practices to continue, that those may have been stumbles along our constitutional tradition. 

And this is something that Madison also recognizes when he introduces the Bill of Rights. He notes that while many states already had their own Bills of Rights, there were a few particular states in which some of the most valuable articles have not at one time or another been violated. He still thinks it’s important to have Bills of Rights. He thinks that will reduce the likelihood of violation, but he’s noting that we often fell short of our constitutional commitments. There’s another interesting anecdote with President Washington dealing with appropriations at the founding, so not constitutional rights, but he actually gives a speech to Congress where he basically says, “Mea culpa, I didn’t fulfill sort of the requirements that needed to be done constitutionally.” And he knows it’s going to take a little bit of time for some of these bigger constitutional changes for our republic to come in line with the constitutional commitments, our framers and vision. So it’s important to ask in any constitutional context, which one of those are we dealing with? 

So when we’re thinking about constitutional rights, how can history inform some of what we’re doing here? One of the things I want to jump to is I think one of the important questions that we’re asking is if a constitutional right is defeasible as opposed to categorical, which sorts of reasons or justifications can government rely on to limit the right? I think history can do a lot to inform this question. Rahimi pointed out that it was searching for a “permissible reason” for restricting firearm use. And one thing that I’ve thought about is in the Second Amendment context, I’ve increasingly understood more why looking to things like historical analogs could be relevant for helping us to understand the why, the permissible reason in that context, because we were, as I said before, happier with those historical analogs constitutionally and that might be a reason why looking to historical analogs of how we were regulating at the founding in some context can be more of a mixed bag for analyzing something like religious exercise if we’re trying to understand the constitutional commitment there. 

The last thing I want to point out is I’m going to jump ahead. Yeah, I’m going to come here. So to the debate in Vidal v. Elster that Justices Barrett and Thomas are having, what do we do about implementing doctrines? How should history inform particular constitutional disputes? So the Latham Act is the act that’s being debated in Vidal v. Elster, the names clause, all nine justices agree that it’s constitutional, even though it’s clearly content based regulation, which is usually a problem in the freedom of speech context, why is it constitutional? They disagree about the rationale. Justice Thomas declines to delineate an exhaustive framework. He just says, “I’m going to just look to history and tradition for relevant analogs of the law here. I found some analog that looks plausibly similar, not from the founding era. And I’m going to say because this seems similar enough to that analog, that’s enough for my day’s work, this is constitutional.” 

Justice Barrett says, “You’re wrong twice over. That evidence isn’t really a genuine analog. It’s not even that similar even if you squint hard and look at it funny and you’ve picked the wrong historical period. So you have no theoretical reason why this is relevant. That’s not the ratification era.” She says, “The majority doesn’t explain why hunting for historical forebear on a restriction by restriction basis is the right way to analyze the Constitution.” And she points out, “Your attempt to do this was to avoid a judge made doctrine, but you just created a bad judge made doctrine that doesn’t provide much predictability to lower courts. We should think of doctrines that will give more content or more guidance to other government officials about how history will be relevant, about how it will be applied to future cases.” 

You can disagree with Justice Barrett about the particular doctrine she chose in that case, but I think she’s right about the point that where the historical analog from the founding isn’t directly on point, like an on point case with the dispute that judges are dealing with in front of them. They’re going to have to do something else other than point to other randomly chosen historical analogs at random periods of time to assume that that history as an originalist resolves the matter. And I’ll go ahead and pause there. 

Derek Webb: 

Great. Thank you. Thank you all three of you for some very interesting comments. It was sort of an intellectual feast here, but I want to now get us into sort of conversation with each other for a little bit and we’re going to, by the way, turn over questions to you guys in about 15 minutes. So start kind of formulating your questions and your thoughts. 

I want to first begin with Charles, our leadoff batter and you concluded at the end of your comments about starting to talk about living constitutionalism and its relationship to originalism and I think you’re offering maybe a counterintuitive kind of suggestion actually that in some ways that there are linkages between living constitutionalism and originalism in a way. 

The theme that you really hit on in the context of living constitutionalism and the common law was the way in which learning happens over time and tradition may be sort of a working out, working to purity and understanding of a certain kind of constitutional rule or constitutional norm. I guess the question that I have that I go from learning is to who is doing the learning and kind of who ultimately from your standpoint institutionally kind of ratifies that learning. It ratifies the result of that learning and if it’s courts and since we’re here really talking about the Supreme Court and the work of courts, what role do you see courts doing in the process of sort of helping us to understand better our Constitution? I think that’s the opening kind of question for you. 

Charles: 

Yeah, it’s a great question and a hard one. I mean, my instinct is to say that in general they should not be on the vanguard leading the way, but then it’s hard because our counter examples, like Brown where they disrupted a pretty entrenched tradition looking back it seems like that may have been a good thing. Although it’s hard to know how things would have played out, maybe things would have played out differently in some ways that were better had they gone a different route. It’s hard to know. I mean, what makes it particularly hard is that where the breakdown to kind of science and other forms of just discernment where those analogies kind of break down is that of course courts also have an influence, right? I mean, this is a preoccupation of legal historians. Courts and legislatures, of course, are constituting those practices and shaping them and influencing them as they try to reflect them, right? 

I mean, I think you used the word recursive at one point in years, which sort of rang a bell in my mind because I think that’s exactly right. It’s both. They’re reflecting and they’re shaping the culture as they go, which makes it kind of hard to know. 

I don’t have a firm view on that. I mean, I think there are trade-offs obviously in both directions, right? In a way, what I’m sort of trying to focus on is just sort of what the logic is, what the kind of inferential logic is of any theory of thought, any theory of interpretation or adjudication or whatever you want to call it that treats social practices as a form of kind of normative guidance, which I take something like traditionalism to be. 

Derek Webb: 

Maybe a little follow up on that. You have this lovely essay on progress that’s right on point on these themes and you conclude your piece with this line, which I loved, which was, “Perhaps the lesson is not that we should find ways of making it easier for judges to decide questions of constitutional change. Rather, the lesson is that we should reconsider who should be making those decisions in the first place.” And then you conclude with this really interesting line, “The original progressives had something to say about that, period, and nothing more.” 

Charles: 

Did I even have a footnote on that? I may not have even had one. 

Derek Webb: 

Nothing. It was this very mysterious- 

Charles: 

That’s a more concrete answer to your question, right? I mean, I guess that’s where my sympathies lie is a kind of deferential posture, right? But I don’t take myself to have fully defended that in either that essay or other. But I think that’s right. I think that’s right. And I think it follows from a lot of logic of what Marc is talking about, right? If you think that the traditions are something from the people, then legislatures, or at least we hope, more reflective of the people than courts in some kind of brute kind of mechanical way. So I think a kind of general presumptive posture of deference kind of follows from it. So the point of the reference to the progressives was, of course, it was a very court critical political movement. They thought the courts were choking off social expression of social needs and so they were critical of the court whereas sometimes progressives embrace the court. 

Derek Webb: 

So critical of the court and also really active in recommending constitutional amendments. 

Charles: 

Absolutely. 

Derek Webb: 

Whereas even on things like the 19th amendment where you might think there’s a lot of learning going on there across all 50 states about whether women should have the right to vote under the Constitution and on theory of constitutional change and learning, you might say, well, we’ve learned at this point that women do have the right to vote. Why go through the kind of really laborious process of amending the Constitution when all it takes is a decision five Supreme Court justice to call it a day. We’ve learned. But it sounds like from your standpoint that the progressive had it right in the focus on. 

Charles: 

I think so as a sort of baseline presumption, yeah, I think so. 

Derek Webb: 

Yeah. Okay, great. Thank you. 

Marc: 

And just quickly,- 

Derek Webb: 

Please. 

Marc: 

… if I can. Sometimes I think about the difficulty of constitutional amendment today, how long it’s been since our last constitutional amendment. I think I, at one point, looked at this and it’s something like the third longest time period now between now and the previous constitutional amendment than at any other point in our history. And I think it’s hard to imagine given the kind of polarization and the trouble that the country’s in when the next constitutional amendment is going to be, right? I mean, I think- 

Charles: 

And what it’s going to be about. 

Marc: 

Exactly. And so these other mechanisms of change, which I think are important, they’ve taken a much more sort of central role in part just because of the difficulty of constitutional amendment, which is- 

Charles: 

Unquestionably true. 

Marc: 

… bad, right? 

Charles: 

Right, right. 

Marc: 

It’d be good for constitutional amendments to have more, I don’t want one every day, but I mean, it would be good for them to be passed with some kind of regularity, I think. I don’t know what you both think about that. 

Stephanie: 

I agree with that. In fact, some of our friends across the pond in the UK, like Professor would say that one of the reasons that our constitutional order functions well is because the state constitutions are very amendable and they’re amended frequently and there’s a lot of lawmaking and regulating that’s happening. And so it’s really our system of federalism that makes the ability of government officials to orient law more effectively, more often to the common good than if we’re just focusing on how hard it is now to amend the federal Constitution. 

Derek Webb: 

All right, Marc, question for you. And the question is, I wonder whether your focus and really deep and really rich, interesting exploration of the theme of traditionalism, given what you’ve said, I wonder still though whether there might be still some room for reproachment between a spirit of amity, if you will, between traditionalism and originalism. I know the conversation has been framed in terms of sort of a traditionalism and common good constitutionalism as two non-originalist alternatives to constitutional interpretation, but I wonder whether there’s a little bit more room for playing nicely between originalists and traditionalists in thinking in terms of the way Michael McConnell has talked about all these methods of interpretation as sort of different tools in the toolbox of a judge around which there are kind of an order of operations by which a judge kind of goes through when they’re thinking about the meaning of the Constitution. And the first step probably at least for an originalist is beginning with the text of the Constitution and then going to the historical resources and the traditional sources to kind of fill in the meaning of that constitutional provision. 

 When though that meaning kind of runs out, the history runs out, we’re kind of left with a somewhat open textured sort of constitutional provision. The second order of operation is to go from the text then to history, maybe in the form of liquidation, as Madison put it, but that might be kind of the quadrant where traditionalism kind of lives and reigns auxiliary to perhaps the originalist project of trying to figure out the meaning, but when meaning isn’t sorted out either because there’s way too much history on the provision, in other words, there’s too much disagreement in 1787 about the meaning, or there’s just too little history from 1787 or your relevant ratification moment, then you go to what’s called, and what Stephanie was talking about is post ratification history or tradition or history. Under that framework, could traditionalism live happily with originalism as in terms of the methods of tools? 

Marc: 

Yeah. So in my remarks, I talked about something sort of different, or that is to say this other approach that’s emerged, but I think… So I once took the view that originalism and traditionalism were head-to-head competitors. I once took the view that what traditions were doing was fleshing out meaning in various ways, but I changed my mind about that actually. I mean, I’ve been at this for the last 10 years, I’m entitled to change my mind. 

Derek Webb: 

Learning, you’re learning. 

Marc: 

And I actually don’t, now I don’t think that what traditions are doing is determining the meaning of text. The way that I say this is that they’re determining the law of the Constitution, so even an originalist would say something like this, for all but the most straightforward provisions of the Constitution, 35 years old for the president or something like that. But even for some of those, you’re going to need doctrine to help get you from the meaning to judgment if you’re a judge. 

So, there’s a reason that we have all of the doctrines that we do, the tears of scrutiny or whatever other doctrine, standing doctrines or so on. It’s because if you just sort of look at the text, even if you have a pretty good fix on what the meaning of that text is, you’re going to need more than that in order to make you able as a judge to decide this case that you’re looking to now, what is it that’s going to get you from that point, the meaning determination to this final point? 

Well, Charles in his opening remarks talked a little bit about the development of originalist theories, those that take account of construction, for example, or those that are not so much meaning theories or interpretive theories, but law theories like Steve Sachs’ theories. Stephanie and Michael McConnell have done work with respect to hallmarks. Now, Stephanie and I have a kind of an ongoing, I wouldn’t want to say debate, but question that we’ve been sort of, is looking to the hallmarks of establishment really about the meaning of the establishment clause or is it something else? Is it about a series of practices and so on? But however, that debate cashes out, I think that there are lots of varieties of originalism. Many varieties, or at least some varieties, that would be perfectly compatible with the traditionalism that I’m looking at. 

But again, it’s a little hard to pin down originalism writ large as a single theory. It’s just a lot of different things going on in the theory. But yes, I definitely think my final answer is yes there to what you’re talking about. 

Stephanie: 

Can I add something to that? One thing that I think Marc’s work has done that’s really important for originalists is there are contexts where some of my fellow originalists, I worry would like to try and identify meaning, get a really high level of abstraction and especially where we’re dealing with a categorical constitutional right. One constitutional limitation that categorically prohibits government from doing certain things if it falls within the relevant zone. The establishment clause is an example of this. 

If we have a very abstract way of identifying the principle or purpose that we think animated the establishment clause, which some scholars like Nathan Chapman are advocating for, then I think that’s originalism that is very difficult to implement. That’s originalism that’s ultimately going to leave a lot less room for determinatio by political actors, and I think originalism that needed to be more informed by traditions and actual practices. 

That’s an area where I think traditionalism and originalism should be much closer, fellow travelers, in terms of if there was some sort of law at the founding of the relevant constitutional moment that has real rich practices behind it, then we should understand those as carefully as possible, in order to interpret now what that meaning is. As opposed to then try and back up to a really abstract principle that, really, law, this is a finesse point, but it’s a razz point. 

We have law because people might agree on abstract principles, and not be able to agree on the determinatio of how it cashes out. That’s why we would need law even in a society of angels. Pretending, like going back the abstract principle, is what we should be doing as a matter of law, is getting at the concept of law wrong, I think. 

Marc: 

One small thing, because at this point, I’m with Stephanie on this point. I think it might be something of an answer to Charles who sees the kind of, “Does this all kind of bottom out into living constitutionalism?” 

It has that danger, it seems to me, in some of the developments that Stephanie is describing, which is why I think it’s very important to keep it to the territory in which it’s supposed to sit, which is at this very fine-grained level of historical practices. 

Now, I still think you’re right, Charles, that in order to decide whether to extend or limit that set of practice, that pattern of practice to some new phenomenon, there are going to be moral considerations that play in. Even the court says, “We’re trying to decide the why, and the how of this set of practices.” 

But I don’t think that that necessarily means it all bottoms out in what Stephanie is describing as a kind of, “Let’s just recur back to high principle and forget about all the practices.” 

Stephanie: 

Really quickly, something to keep your eye on, this debate that we’re having is not just academic fodder. The Fifth Circuit, just en banc, upheld a law Texas past allowing for display of the 10 Commandments using an approach to the establishment clause that is much more rooted in traditions, and looking at what were the six hallmarks of an established religion at the founding with a lot of granularity. I think the Fifth Circuit did it correctly. Almost certainly that’s going to be appealed to the Supreme Court, and some academics will argue we should be doing this at a higher level of generality. This debate is going to be very live very soon. 

Derek Webb: 

One little question for Marc, then a question for Stephanie, and then we’ll open it up. Just a little follow-up, very much an intra-CUA Law School kind of question. But you’re thinking in terms of sort of Thomas Aquinas’s theory of the definition of law, and you described tradition as a form of determinatio, determining the law that is, at some level, undefined or maybe even arbitrary. Then you talk about the comparisons between your approach and the common good traditionalist approach. 

I wonder though whether tradition, history, and practices are maybe better conceived under Aquinas’s thinking in terms of custom maybe rather than determinatio. Maybe a distinction without a deep, deep difference, but he has a lot of discussion about this idea of custom, and how law is effectively made through practices that aren’t formally created by a legislator, and that actually could even undo prior law if the law has not been adhered to. But it’s a small question. I’m just curious. 

Marc: 

Yeah. I think it still will be the quote, unquote, “legislator” that’s going to have to adapt the custom. I agree with you. In other words, the custom is going to be sitting there. The legislator, which could be a judge in this telling, will have to be determining, specifying whether that existing set of customs does or does not apply in this particular case. It’s almost like the taking of a custom to decide whether it does or does not encompass a particular set of facts that the legislator, a.k.a. judge, is facing now is I think exactly the process, or it’s a way in which determination can happen. 

Derek Webb: 

Okay, great. Stephanie’s point about the Fifth Circuit is so on point. These topics of history and tradition are not just academic. They can become very theoretical as you can tell. But they’re very important, and maybe outcome determinative in a lot of cases, not only at the Supreme Court. 

But one area of controversy among originalists, which you’ve focused on about history and tradition is the question of whether tradition or post ratification history, decades later, maybe even centuries later is consistent. First of all, using it is consistent with originalism. Second, whether that post ratification history can be described and cashed out in terms of what Madison called liquidation. 

I think Sherif Girgis has weighed in on this question, saying that a lot of post ratification history that’s been used by the Supreme Court isn’t technically liquidation. Because it really didn’t involve deliberation on the part of the relevant political actors. 

Do you have a view on that question that’s kind of bubbling up among originalists as to whether post ratification history decades later, and using it, would, first of all, be originalist, and second, whether that would count as, in most cases, liquidation? 

Stephanie: 

Yeah. I agree with Sherif and Wilbo that for something to count as liquidation, it has to be fairly close in time to the relevant ratifying constitutional moment. Some subject of real debate and deliberation, but that makes the most sense to me in the sense of like, there were some options on the table constitutionally, and then we settled it fairly close in time to when ratification took place. 

When we’re just picking random history from the 19th century, it’s like, “Hey, this looks similar to what we’re dealing with today.” 

That looks nothing like liquidation for any methodological reason. Justice Barrett has said, “Just because you found something old, doesn’t mean you’re doing originalism.” 

I think she’s right about that. I think sometimes some judges and justices are under theorized about, “Hey, I found something old, and I’m excited about it.” 

That doesn’t mean though that later history is never relevant to an originalist. Again, I talked about some. It might be a form of precedent. It might be the judicial doctrine that we’re respecting for matters of stare decisis points us to a later tradition. 

It might also be though that some provisions in the constitutional text point to other sorts of history. If the privileges or immunities clause should be understood to mean ongoing developing traditions, and that’s a reason why we would look to history, and I’m not saying that is what the privileges and immunities clause means, but if that’s what it means, then that’s pointing us to history beyond just the ratification error moment. But note that we had to start with the relevant ratification error moment in the reconstruction period to figure out, “What does privileges or immunities mean?” Only then if that gives us an arrow that is pointing somewhere else, then are you still doing that later coming history consistent with originalism. 

I have had sometimes original judges talk to me, and say, “But what if it’s like the first moment we’ve ever addressed it, and it just happened to be in the 19th century? Can’t we say it’s originalism then?” 

My view is, “No, not necessarily.” 

Just because it’s the first time we’ve addressed the question, that doesn’t mean it’s shedding light on what did the Constitution makers and ratifiers think they were doing at the relevant constitutional moment. 

Derek Webb: 

Right, great. All right. We have about 10 or so minutes for questions from the audience, please. 

Yeah, sir. It’s coming to you. 

Dick Heller: 

Can you hear me? 

Derek Webb: 

Just wait when the mic is right there. 

Dick Heller: 

This question is for Professor Barclay. Merely because you mentioned Second Amendment twice or more, and my name’s Dick Heller, Heller Foundation by the way. In 2008, there was a magnificent Justice Anton Scalia that penned a magnificent Second Amendment decision that basically overturned gun laws and regulations of so many states. 

What I learned today is thinking about the ideas of tradition versus originalism, we had the originalism of if we start in the late 1700’s of the Constitution, and since then we’ve always had the tradition of so many people keeping and bearing arms. It comes to mind that just recently, so many states decided that they could forego that trifecta of Heller, McDonald and Bruen. 

My question is A, under what authority do they think they can violate those decisions? B, do we know how this is going to end predictably in a very short period of time? 

Stephanie: 

I feel like we should hand the mic to Joel for this question. My friend, Joel Alicea, sitting next to you would have a better answer to this than I would. Yeah. 

I think that the fact that some states start to form their own more modern tradition of doing something, that then runs contrary to the original ratification era and a lot of tradition that predated that, is a reason why those are the types of traditions that originalists shouldn’t give weight to. We can form later traditions that violate constitutional meaning. Bruen and Heller were examples of the Supreme Court saying that states have limits on the types of traditions they can politically pass when those are inconsistent with original meaning. 

For what it’s worth, the concern about states coming up with later or more modern traditions, I think, is a reason why one of the methodological things about Bruen that originally concerns some originalists is that there’s a piece of it with the shall issue permits, I think is not really tied to ratification era. It’s not clear which tradition is being given primacy in that decision. 

I think some of the courts later decisions suggest that the type of tradition we’re most looking towards is founding era. I think that’s going to be the more protective type of protection for all of our rights, including the Second Amendment, certainly for religious exercise. 

We have a lot of traditions that later formed like Blaine Amendments that are not very protective of religious exercise. It’s one reason that I think tradition, we got to be really cautious. This is a Sherif Girgis point about giving it free willing force because then it becomes a type of living traditionalism that removes us from the original meaning that’s meant to hopefully provide the most protection for our constitutional rights. 

Derek Webb: 

Sir. 

Michael Cozzi: 

Hi. Michael Cozzi, fellow CUA Law Alumni, 2023. My question is, there’s some constitutional scholarship from the early 2000’s, 1980’s, and ‘90s by Donald Lutz about what you would call the earlier enacted things like the declaration of United Virginians, the Fundamental Orders of Connecticut, those sorts of colonial era documents. I was interested to see how that could interplay with traditionalism and originalism. Thank you very much. 

Marc: 

I guess I’ll give that a crack, and try to connect it with actually something that Stephanie said just before. I agree that just because you can find something old out there, that’s not good enough. That’s not good enough on my account. I’m Mr. Tradition, right? The best traditions are ones, in my view, where you see continuity before, during, and after, for long periods of time diffused, and this gets a little bit to your point, diffused across many, many different actors. 

Some of these documents that you mentioned, on traditionalist premises, they’re important and they can be important together with other documents in other states, for example, that are picking up on longstanding patterns that show, the metaphor that I use in something that I’ve written is like, a ski slope. 

If any of you are skiers, what you want in a ski slope is that you have a long, smooth, and densely packed terrain. If any one of those elements are off, setting aside people that like to do crazy things like ski on ice or something like that, then it’s not going to be as good skiing. Some of the documents that you mentioned, to the extent that they’re picking up on a common cultural sense that a particular right or a particular regulation was important and was thought to be important by many people across long periods of time, that makes a difference on popular sovereignty grounds. 

Stephanie: 

I have a question for you about that, Marc. I think that analogy and that view of tradition makes really good sense when what the constitutional document was meant to do was like, “We really liked how the ski slope was going. We want to make sure it continues going maybe with some minor modifications.” 

But when the Constitution makers are deliberately bringing about radical change, they’re like, “We didn’t really like being on a black diamond. We would like to go to a blue, thank you very much.” Whatever. Think about the analogy however you want. 

“We want moguls now.” 

That’s the reason for the constitutional moment, is we were unhappy with that tradition largely. We would like to chart a new course. It’s going to take some time to reroute the ski course. But there, I think there’s tension with acting as though we’re going to give primacy to only that ski slope, because then it takes away power from Constitution makers to bring about radical change. 

Marc: 

No, I think that that’s probably right. But I would say this. Even on something like the establishment clause where we’re trying to break away, we’re doing something else than what the established church looked like, we’re still looking to hallmarks. 

Stephanie: 

No, I hear you, because it’s like, “We just want to do the opposite of that.” 

Marc: 

We want to do the opposite. In other words, you’re still saying, “Look, whatever it was, I take the point that …” 

Stephanie: 

Talk to me about the Equal Protection Clause. 

Marc: 

Right. No question, that clause, if the due process clause is like one of my best cases, the Equal Protection Clause has some counter traditional content to it. 

I’m prepared to accept the fact that the power of tradition or traditionalism might depend on something like the historical purposes- 

Stephanie: 

Okay, we agree with that. 

Marc: 

… of a clause, right? If it really is true that … Even think about something like the 13th Amendment. The 13th Amendment is cutting off a tradition. It’s saying, “We don’t want that any longer.” 

Why? Because, and here I’m with Charles, a powerful set of moral and other experiential considerations as well as a war, came to just sort of say like, “We need exogenous change from our traditions in that way.” 

Parenthesis or footnote, “By the way, we’re only doing that in absorbing other traditions.” 

Other traditions are rushing in to fill the void, and say, “Look, this is the kind of people that we really are, not the kind of people that engage in slavery but this other kind of people.” 

That’s happening also. But I agree with you on the point that not all clauses are going to be equally susceptible to this kind of method. 

Derek Webb: 

Marc has a great line in his essay quoting Justice Scalia. It happens to be in a footnote, where he says exactly that very point that I think he said it. 

Scalia, “I did not say that every practice sanctioned by history is constitutional, procedures demanded by the Bill of Rights must be provided despite historical practices to the contrary.” 

Then he gives a number of citations specifically in the Equal Protection Clause, which is definitely the cause on point here. 

We may have time for maybe one more question if anybody else has … All right. Yeah, sure. 

Speaker 2: 

We have all these laws … 

Stephanie: 

Wait for the mic. We just want to get you on the recording. 

Speaker 2: 

We have all these laws. It occurs to me that laws and regulations, I learned a long time ago, are generally considered temporary because the principles are universal and forever. Like life, liberty, and pursuits. I missed that part if you all described it that way. 

Marc: 

I’ll go quickly. I don’t like principles. I worry about principles. 

Speaker 2: 

Murder? 

Marc: 

No, murder is an act. Principles worry me, and they should worry all of you too. Because principles, especially by the likes of people like us, can be abstracted away from, and all of a sudden you’re dealing with a very, very different world than the world that you thought the principle that you adhered to was the world in which you were going to live in. 

Principles are tricky things. I’m much more comfortable with practices, with concrete things that everybody can look back and say, “Okay, that’s a thing we did.” 

We’re still going to have to engage in some moral reflection about whether this thing today is like that previous thing, but all of us can look back at the historical record and agree about that concrete thing. It’s much, much harder to think about, “Okay, we all agree about equality. What’s that going to mean today? How is that going to cash out?” 

I suspect your view about what the principle means in practice is going to look very different than what other people’s views might look like. That’s why. 

Stephanie: 

One thing I’ll add to that is I agree with that concern in many contexts. I think that concern has its most significant bite again when we’re talking about if the whole ballgame is figuring out the right principle, and the level of generality. But if the principle is a piece of the analysis, but then other things are involved like a burden of proof on the government that is going to require evidentiary questions that we also can have concrete answers to, other than just abstract moral philosophizing, then I think that’s another way to constrain what government’s doing that is separate from just going to very abstract principles. That’s not the only toolkit, I guess that’s all I would say, but I agree that it’s important one. 

Derek Webb: 

There’s obviously a lot more that we can talk about. The conversation will continue after this. But we are now at time. It’s been an honor to serve as the moderator for this. Let’s give a hand to our three panelists. Thank you.