The Role of Tradition in Constitutional Law

Kevin Walsh (00:17):
Well, good afternoon and welcome. Let’s open with the prayer. In the name of the Father, Son, Holy Spirit. Lead us Lord in your path and we will enter into your truth. Let our hearts be gladdened that we may fear your name. Come Holy Spirit, fill the hearts of your faithful and kindle in them the fire of your love. Send forth your spirit and they shall be created and you shall renew the face of the Earth.

Father, Son and the Holy Spirit. Amen. Okay, well welcome to this afternoon’s program sponsored by CIT, the Project on Constitutional Originalism and the Catholic Intellectual Tradition at Columbus School of Law, the Catholic University of America. CIT is devoted to the scholarly exploration of the relationship between American constitutionalism and the Catholic intellectual tradition through programs like this one, fellowships for law students and young legal professionals, lecturers, and related events.

For more information, visit our website, I’m Kevin Walsh, CIT co-director, along with my Columbus School of Law colleague, professor Joel Alicea. We’re pleased to present our program this afternoon on the role of tradition in constitutional law. Each of our speakers will provide an opening statement, after which I will facilitate a conversation and then open the floor for questions.

The first of our speakers will be Marc DeGirolami, the Carry Fields Professor of law at St. John’s University School of Law. Next up will be Ernie Young, the Alston and Bird Professor of Law at Duke. Both of these scholars are excellent.

I’ll skip what you can read about them on their faculty webpages and just offer some very brief recommendations about their scholarship and where you can learn more. So for Professor DeGirolami, I recommend what we will now call his traditionalism trilogy, the most recent of which is traditionalism Rising, forthcoming in the Journal of Contemporary Legal Issues.

For the other parts of the trilogy, go on SSRN. You can find those. For Professor Young, it’s hard to pick just one for scholarships. So instead I will say find his case book. I taught for many years from the Supreme Court in the constitutional structure. We were talking before this event. There are aspects, I still use the teaching notes.

For Professor Young, really a full range of things. But it has been a privilege to learn from his scholarship in teaching constitutional law. Enough with the introductions, let’s go to the opening statements.

Marc DeGirolami (03:05):
Okay, terrific. Thank you Kevin for that generous introduction. I’ll take traditionalism trilogy. I’m like the JR Token of traditionalism or something like that. But first before I get started in talking about traditionalism, I just want to say how pleased I am to be part of this really excellent program at this excellent new center Kevin and Joel have managed to put together, with each conference accepting this invitee, of course.

Really just exceptional programming, exceptionally interesting and cutting edge work involving originalism and constitutional theory in general, in historical perspective as it is being practiced today. I think you are very… All of you here are very fortunate, extremely fortunate to have a center like this with a kind of fire power and engagement that you have here. It’s really, I think, unique in the country. I just wanted to acknowledge that.

Now on traditionalism itself, I think something that seems new is happening at the court, but what looks new is actually old, quite old. The sort of function of the previous pieces that I wrote was to try to map out a method that I saw working itself out in a number of cases over a number of different subject areas within constitutional law that shared certain methodological assumptions, but that hadn’t been identified as a method, as itself a method.

Maybe we could talk about why that is, but the method which I ended up calling traditionalism shares certain fundamental features. What are those features? I’ll start by identifying them and then tell you a little bit how I see them working themselves out in some of the cases in the 2021 term. The method focuses first on practices, practices, concrete practices. When I say practices, I mean something fairly specific, not precedence, not judicial elaboration, not anything like that.

I mean either regulatory practices, regulatory practices of federal, state and local governments. And/or I mean cultural and political practices, the practices of individuals or groups. So that’s the first element. The second element, I call endurance. The endurance of those practices. An endurance can be broken down into three separate sub elements. An element of age, simply how long the practice has been engaged in. An element of longevity, not just how old the practice is, but over how much time the practice has been engaged in.

Continuous or just in terms of a sheer number of… Usually continuity is what longevity reduces to. And then finally what I’ve called density or one could call breadth or something like that. But the category of density means over time and space at how many levels of governments and how broadly adopted has this practice been?

Do you see it in state and local and other parts of government. Again, across time and space. So these three components are the ways in which courts have been evaluating the power of practices. These practices, I should emphasize, are determinants, what I call determinants of meaning and law. Determinants of meaning and law.

That means that essentially, it is through the practices and through the endurance of the practices that we come to learn or we come to figure out over time and space what the meaning of various constitutional provisions is and what the meaning of our constitutional law is.

And then the final component of the method, which is actually a component at least at the moment that I see, but that the court has not formally recognized is the presumptive but not conclusive force of these practices as determinants of meaning. So that there’s again a strong presumption that these practices do determine meaning, but that presumption can be overcome in a number of situations, although those situations will be exceptional, highly exceptional situations.

Those are the constituents of the method. In terms of how the… As I say, the method was always there. It was there particularly for a number of discreet areas of constitutional law in the First Amendment in due process and in other ways. But it’s really as of the 2021 term that I think the court is more self-consciously saying that it is applying something that is increasingly looking like the method that I’ve just described to you and that it is doing so saying we are applying a method of tradition or text and tradition, so on.

You can see it in the big Second Amendment case. You can see it in the substantive due process case, the abortion case, you can see it in religion clause cases. You can see it in free speech cases and across other domains as well. You can see the method developing in some of the papers I’ve described the method in personal jurisdiction cases, so cases without any obvious political, in the partisan sense, political valence, one way or the other. The method was used by conservative justices, by progressive justices.

I have the sense that bit by bit, the court is making its way, is coming to this method self-consciously. That’s what I mean when I say that the method is, it’s not new in the sense that it had been used many times before, but never in this thorough going and self-conscious way as in the last term.

Now, of course, remains to be seen what happens in this term’s cases. The method may not be used as systematically and so on. There are, and we could talk about, I don’t know how much more time I have, Kevin, but we could talk about there are some differences, some real differences between for example, originalism and living constitutionalism sort of on each hand. And again, with respect to traditionalism, we could talk about those.

There are of course, and I think Professor Young may raise some of challenges or some problems that we will need to confront many of them at different theoretical or conceptual levels with the method. But it’s here friends. It’s here with us, this method now.

My sense is it’s going to be here for years if not decades to come. So it is the present reality of a lot of our constitutional law and we’re going to need to try to make the method the best that it can be over a period of time.

And so it’s an exciting time for me, but I think for constitutional law in general, where in all of these areas, a new way of doing things, a new methodology is opening up as I say again, self-consciously but in a way that reflects itself a kind of long-standing practice in the Supreme Court’s actual decision making. Thanks.

Kevin Walsh (11:17):
Well, I think we will make sure in the Q&A, since you have said traditionalism is different from originalism in their important contrast, we’ll make sure to cover that in the discussion that follows. Professor Young.

Ernest Young (11:33):
Well, first of all, I want to thank Joel and Kevin for inviting me and for… I thank the center for holding this event. It was a real pleasure to read Marc’s paper and to see the case for traditionalism made so well. I encountered traditionalism for the first time in a freshman political theory class in college.

I’m taught by a guy named Vincent Starzinger who was the grumpy old conservative curmudgeon on the Dartmouth political science faculty. And he introduced me to the thought of Edmond Burke, who was, I think, remains the preeminent theorist of tradition and advocate of tradition. Changed my life and it’s good that I’ve lived long enough to see it really having its rising time in constitutional law. Usually when I go to an event on constitutional law and talk about constitutional interpretation, I’m the only person in the room who thinks traditionalism is a good idea and so I have to engage in the full-throated defense of it.

The fact that I don’t have to do that this time kind of gives me an opportunity to voice some worries that I have about traditionalism as a method of interpretation. I voice these as from inside the house. These are problems to be solved and thought about by traditionalists, not reasons to reject it.

I think the essence of traditionalism in constitutional interpretation is that we don’t just look at a snapshot of history as the originalists would at the particular generation that frames and ratifies a particular constitutional provision. But you look at the entire sweep of relevant history from before ratification to long after ratification to see how things have developed over time.

If you think about parts of Justice Scalia’s opinion in Heller where he invokes powerful evidence that by reconstruction, the Second Amendment to bear arms had come to be thought of as an individual right, it’s much clearer at that point in our time than it is at the founding, I think.

That would be a kind of classically traditionalist opinion. He gets criticized for that by originalists, rightly so. I’ve always thought that a conservative who starts with Burke’s premise that human rationality is limited, ought to be nervous about a view of interpretation that simply takes a snapshot of history at a particular time as determining the meaning for all time of a constitutional provision. That puts a lot of weight on the rationality of that generation.

Burke talks about a method of interpretation in which time is one of the agents, and it takes more minds than one generation or one age can muster. I think if you believe in bounded rationality, then you would want many minds colluding over time in order to forge constitutional meaning.

The other advantage of, I think, traditionalism as a theory is it tends to smooth out constitutional change. It tends to be more incremental in its nature because you’re always looking at what happened just before and what happened after and then after that.

What that means though is that traditionalism I think has a hard time with revolutionary change. We live in a system in which we’ve had revolutionary change. We fought a revolution, for example. I think that makes traditionalism a difficult fit with certain aspects of our constitutionalism. And I just want to give three examples of that, and two are going to be pretty prosaic. They’re the more…

I’m a federal courts teacher by trade and so I love technicalities like state sovereign immunity and Article III Standing. Both of those areas are fundamentally traditionalist jurisprudences, but I think they also raise this problem of how does traditionalism deal with revolutionary change.

And then the third example, which is probably obvious, is the 14th Amendment which is framed after a more revolutionary time in our history than the original founding, I think and means to uproot settled practices and change the world in fundamental ways.

How does a traditionalist use traditionalism to inform the meaning of a provision like that? I’ll start with state sovereign immunity. Sometimes people are tempted to say that state sovereign immunity comes from the 11th Amendment, but the court has been very clear that the text of the 11th Amendment neither, neither creates nor exhausts the scope of the immunity that the states enjoy from suit.

Instead, it is based on tradition, it’s based on a tradition of thought and political theory about what sovereignty means, a tradition in the common law of what remedies were available against the crown. A lot of traditional practices of governments which have relied to some degree on the hope that they will be immune from certain sorts of liability.

The jurisprudence in this country has developed both before the 11th Amendment and then wildly afterwards in a way that diverges from the text. And so we end up having a very broad definition of sovereign immunity grounded fundamentally in tradition.

That’s hard to square with our revolution because part of the point of the revolution was to throw off the trappings of monarchy and get rid of the relics of feudalism. Arguably a concept like sovereign immunity that the government is just not accountable in law in many instances, is just fundamentally inconsistent with that sort of revolution.

By the time you get to the modern jurisprudence in which states sovereign immunity can even thwart a federal statute, it seems that it purports to subject the states to liability. It seems that that tradition is really getting in the way of not one but two revolutions accomplished by the founders.

One was throwing off monarchical rule. The other one was creating a federal government with two levels, a division of sovereignty that was really unprecedented in the world. And yet we allow the states to defy the supremacy of federal law that’s integral to that system. And so I think it raises the question of should we allow tradition and practice and the kind of lingering effects of those practices to trump kind of basic revolutionary conceptions in our system?

The standing example is a much more kind of slow motion revolution but the idea is that Article III Standing really doesn’t rest on the text of the Constitution. The Constitution doesn’t mention the word standing. Instead, it talks about the judicial power. It talks about cases and controversies.

What the court has construed that to mean is simply that the federal courts can hear the sorts of cases that courts have traditionally held, that they’ve traditionally heard.

And so it’s defined almost entirely by tradition. The problem is how do you really interpret what that means and what the limiting principles that it imposes are when the tradition itself has always been understood as something that’s in motion? The common law was consistently developing new remedies, new options, new forms of action, new doctrines and that’s happened in our jurisprudence.

Over time, there’s no single point of revolution in the justiciability doctrines. And yet the scope of litigation, especially on the civil side today, we have multidistrict litigation, we have class actions, we have states bringing massive lawsuits on issues of public law.

It’s a fundamentally different litigation environment than what the framers would’ve contemplated as traditional at the time that they draft Article III. And so it’s traditionalism that has facilitated that. And I think this is an example that kind of highlights the role of traditionalism as a form of living constitutionalism.

It’s this evolving practice that has informed the meaning of Article III and allowed it to change over time. Yet, the court also wants to use that tradition as a constraint on Congress’s ability to create new causes of action under financial Fair Credit Reporting Act for instance. And so it creates a dilemma. So when are we going to treat tradition as enabling change and when are we going to treat tradition as constraining change and how do we mark the limits of the latter?

That’s essentially the problem with the 14th Amendment as well. We think of the 14th Amendment as a revolutionary amendment, as fundamentally changing the world. I think the framers of the 14th Amendment thought of it a little differently. I think they thought that the war had fundamentally changed circumstances on the ground, that it had abolished slavery, it had abolished the southern economic system, it had abolished the southern political system and the 14th Amendment was meant to entrench those results.

The 14th Amendment was meant to take those results of the war and make them part of the constitution so that they would be impossible to change and was meant to check backsliding. So it was an entrenchment position as well as an instrument of revolution. And as an instrument of entrenchment, the 14th Amendment fundamentally failed for the first half of its life. The first 75 years or so of time after the 14th Amendment’s ratification, things didn’t get better for black people. They got worse. We had the redemption of the southern states culminating in 1876 with the withdrawal of federal troops from the South.

We had the advent of Jim Crow by the 1890s. And so the tradition was evolving, the practices were evolving, but in a terrible direction that was inconsistent with what the framers of the 14th Amendment had been trying to accomplish. And so by the time you get to Plessy v. Ferguson, the court invokes tradition.

It invokes traditional practices as something that we’re not going to read the Constitution to sweep away. But those practices were post 1868 as Professor Woodward has shown. Those were relatively new. Jim Crow segregation did not exist under slavery. This was an evolution in the meaning of equality as understood by the people in a terrible direction.

I think the problem that the 14th Amendment poses is how do you entrench constitutional change, especially revolutionary constitutional change and keep it from being eroded by changes in practices over time? I don’t think the answer is to abandon traditionalism because I think there’s nothing else that is sufficiently culturally weighty enough to check these sorts of bad impulses. You have to come up with an account of traditionalism that would be more robust, more resistant to that kind of terrible change. I think that’s something that traditionalists really need to think about.

Kevin Walsh (23:40):
Well, we have a lot on the table right now and I think one way to get the conversation going might be to observe that our discussions of theory in constitutional law or dominated by the word methodology or something and maybe traditionalism is not a methodology as much as a disposition toward certain practices while exercising the art of judgment.

Maybe this is a way out, but there needs to be some way out because every time… What do I mean out of? Out of the binary between originalism on the one hand and living constitutionalism on the other? Because even in this brief set of opening remarks and in other discussions, there seems to be a move that happens all the time to say, “Well, that traditionalism, that sounds a lot like originalism in one sense or it sounds a lot like living constitutionalism on the other hand.”

Maybe we’ll start with you Marc and say, is traditionalism really a method? Is it different? Or how is it different from these two binary approaches that we keep mapping constitutional theory onto?

Marc DeGirolami (25:09):
So great. There’s a good question and I appreciate it, Professor Young’s points as well to which I have thoughts. One quick one before I even… Just a little footnote before I get to your question, Kevin, is notice I hadn’t even thought about standing as a category in which traditionalism is…

The 11th Amendment issue I have thought about, but I haven’t really done that much work on it and I’m just struck even as Professor Young was talking about again, how pervasive it is. It is just all over constitutional law and this a lead in to what Professor Walsh asks about, which is this really a method? I think it is a method. I think it is a method.

I don’t think that the court has… Or at least, it could be a method. I see it at least latent in the sort of earth of constitutional law, cross domains, a similar kind of thing going on that can be isolated and analyzed into these recurring elements.

If that’s not a method, I don’t know what is. That’s what a theory is. A theory is a set of general propositions about what we do when confronted with a particular set of concerns that are generalizable, that happen again and again, that can be generalized into principles and that’s what we’ve got here in my opinion.

As for the differences between originalism and living constitutionalism, I think the first point to make is that these are, each of them, very complicated. I think of them as umbrellas under which a number of different sub theories sort of sit and interact. There is no single originalism or single living constitutionalism. You take originalism now it’s a very big tent with a lot of different theories that are working underneath it.

One could say some of them are perhaps closer to traditionalism than others, but in my view, none are the same thing as traditionalism. Why? Well, because I think all originalism of whatever kind aim to fix meaning in text. Professor Larry Solom has called this the fixation thesis and trying to reduce, if you were to think of mere originalism. Well, mere originalism would say at the very least what originalists do is they try to fix meaning in text. As Professor Young has said, traditionalists don’t do that. They do not fix meaning in text, at least not at one moment. They think about meaning and law as being determined across time, long periods of time. I think the way that traditionalists measure time is sort of in geological terms. Very long periods of time, that’s the way that they think that meaning gets fixed.

That’s one I think very important difference. A second difference, I’ll mention this one. I don’t know how much… You cut me off when you need to, I’ll stop after this one.

A second difference concerns something else professor Young mentioned, which is post ratification practice. Now, some originalists, a few of them have tried in relatively recent years to account for post ratification practice in something that they call liquidation. But A, that’s a very small slice of originalists. And B, most originalists reject post ratification practice as it all meaningful and B, even those that work from that accept post ratification practice as evidence of liquidation are not doing the same thing that traditionalists are because again, they are originalists first and they are trying to fix the meaning, in practice, that came very shortly after ratification.

Another little feature that distinguishes traditionalism, generally speaking, fixing meaning through shortly post ratification practice by very, very, how to put it, fancy people. By people working at the nerve centers of political and legal power, a Jefferson, a Hamilton, a Marshall. These are the sources that originalists look to those that are interested in liquidation where traditionalists are not, at least not in the way that I… Or not exclusively, they will look to diffuse patterns of practice at all levels of government to try to understand the way that meaning develops.

I think I’ll stop there and let other people speak, but those are at least some differences, important differences it seems to me between traditionalist methodology and I do think that it’s a method and originalism.

Kevin Walsh (30:14):
Maybe Professor Young to pick up on some of those points and send it over to you, it was Hamilton in a federalist paper where he’s treating the relationship between the federal judiciary, the anticipated federal judiciary and the state judiciary, that he says, “It is time only that can mature and perfect, so compound a system can liquidate its meaning.” Suggesting that perhaps maturation and perfection is different from liquidation, which is about meaning.

That sort of raises the question when you think about something like sovereign immunity. I’m surrounded by traditionalists too, one on my right, one on my left. I want to ask, how does a traditionalist approach deal with so-called landmark cases? So we can think about, so for example, to pick up on state sovereign immunity. You have a case like Seminole tribe. So Article I powers and maybe just the commerce clause, but the holding is that Article I powers cannot be used to abrogate state sovereign immunity.

This settled, at least for a time, a very important question about the scope of state sovereign immunity and maybe they ended up at a good place that is you can abrogate using the 14th Amendment Section Five power and not Article I, but maybe it was also wrong given the whole sweep of constitutional history.

But here we are, 27 years later and we have to decide what to do. There’s Seminole tribe, or you can take a case like Dickerson looking at the scope of Miranda or whether Miranda should continue to be a rule. Or Dobbs and Dickerson and Dobbs go different ways with respect to the landmark cases of Miranda and Roe. How does a traditionalist approach to interpretation? This is would be for both of you, but we’ll start with you Professor Young. Approach the question of landmark cases.

Ernest Young (32:22):
So that’s an interesting question. I read a piece by Sherif Girgis on traditionalism. My recollection was he wanted to exclude judicial precedents from what counts. I think that’s probably wrong, that a precedent is a tradition, especially a precedent that spawns progeny. A lot of follow on cases as Seminole tribe has, for instance, is a tradition of interpreting a constitutional principle or provision in a particular way.

It has all of the same arguments for adhering to it that any other tradition would have. The idea that many minds stare decisis is sometimes justified as the court, the number of justices that have concurred in this precedent over time dwarfs the number of justices on the present court. We should defer to the collective wisdom of all of those judges that have followed this precedent over time.

I think there are strong traditionalist reasons to believe in stare decisis. But at the same time, I think a traditionalist probably has an easier time with the inevitable indeterminacy of precedent that precedents can be interpreted in multiple ways and each time you interpret them, you’re also changing them a little bit.

It’s a little bit like Heisenberg’s Certainty principle in physics. You can’t measure something without also altering it to a certain degree. And every time you interpret a precedent and apply it to a new situation, you are changing the meaning of that precedent even if only in a little way, sometimes in a larger way. A traditionalist I think is going to be more comfortable with the fact that the law is going to evolve through that process than an originalist who is only interested in precedents that are accurately gauge the original understanding.

I actually want to go back to the question of whether traditionalism is a method or a disposition. I think I would say it is a disposition that is trying to develop a methodology to go along with it. I think that’s a strength of traditionalism is that it’s not just a methodology.

I think originalism in many ways is just a methodology and it can seem pretty technical, especially in Larry Solom’s hands, for instance, how you go about deciding a case. I think traditionalism starts with just a connection to the past.

I think the best defense of traditionalism of precedent is Anthony Kronmant’s article called Precedent and Tradition, which is basically a sermon on a text from Burke. Burke says, “If human beings weren’t tied to the past, they would be no more than the flies of a summer.” the idea is that flies live for a brief time. They don’t leave anything for the people that come after them. They don’t draw anything from the flies that came before.

They just live in the moment. Whereas people are part of these intergenerational projects that are accumulative over time. Culture is cumulative over time. The law is cumulative over time.

And so traditionalism allows people to be connected to the past in this cumulative over time way. And I think that’s tremendously important because I think it means that it’s not just a methodology. I think that’s important because my project, looking at the failure of the 14th Amendment has taught me that I don’t think any methodology alone can keep constitutional law from going south under horrible pressures, waves of racism and conflict and things like that.

I think you need more than just a method for lawyers in order to allow the constitution to stand in the way of something like that. I think it has to have cultural resonance. And so traditionalism I think has a hope of having that sort of cultural resonance that can maybe make the constitution stronger when it needs to be.

Kevin Walsh (37:01):
I’ll send it right over to you.

Marc DeGirolami (37:03):
Yeah, two points and then I’m curious to hear from others. The first is on the point about precedent and how traditionalism deals with precedent. I think I’m perhaps more with Sherif than I am with Professor Young on this one. In as much as I like Sherif, don’t think of precedence as constituents of traditionalism. I think of other other kinds of practices in order to distinguish what is a common law constitutionalism, which really does depend on precedents.

That’s number one. However, on the point about how to deal with precedents or what Kevin called landmark precedents, for me that will depend on whether the landmark precedent itself was interpreting traditionally. So a traditionalist precedent that is interpreting traditionally has a different sort of weight than a non-traditionalist interpreting precedent. I’ll give you an example.

Well, Roe v. Wade is an example. If the idea is, well, we have had 50 years since Roe v. Wade of a tradition that looks different. For example, from the previous X amount of time, much, much longer amount of time, I’d like a discount rate for that 50 years, please, in light of the fact that Roe v. Wade itself was not interpreting traditionally and therefore nudged the culture in a non-traditionalist direction in a way that it otherwise would not have been nudged.

Everson in the establishment context in 1947 is a similar kind of example. That’s the first point. The second point on what Professor Young has been talking about Burke and Burkinism and the sort of many minds justification for traditionalism, I think that that’s an important justification. I don’t think that… It’s not my primary justification. And if I could give a little footnote here to a paper that Professor Alicea has just written an extremely important paper that I recommend to all of you called practice-based constitutional theories.

Professor Alicea says, “Look, practice can’t justify itself. It requires some… It’s the theory that justifies reliance on the practice.” So we need some kind of account of why one would want to be or why one should want to be a traditionalist in order to then justify our reliance on practices, not the other way around. And I think he’s right about that. My own account tends to emphasize Allister McIntyre’s account of traditions, that traditions are extended arguments over time worked out in countless concrete interactions among people in a host of contexts about what various constitutional virtues require of us.

If you take any practice, a practice like pamphleteering let’s say or restrictions on speech in certain venues, why do we pursue those practices? Well, it isn’t just because of the result that we get. It’s because by working out those practices, what we owe other people and what they owe us in those concrete settings, we get a window in on what constitutional justice is about worked out over long swaths of time.

That’s the value to me, of traditionalism is that it instantiates certain constitutional virtues to which we can only have access through the working out of tradition.

Kevin Walsh (41:06):
We have a tradition of opening the floor to questions. Please have the mic brought over. I will recognize the speakers. As that is happening, I will just observe that your account of Everson, for example, it picked the tradition that is one side of Virginia debates over the assessment for religion. Then it carried it forward and it did spawn a lot of progeny and yet at the same time, one of which would be Levin and the emergence of traditionalism at the Supreme Court in more recent years came exactly out of that confusion where you have the traditionalist approach of say a Marsh v. Chambers sort of replacing the sort of three-step, three-factor approach of Lemon. It’s a very lively emergent theory in establishment clause.

Yes, in the back.

Speaker 5 (42:15):
Thank you very much for your talk. It’s very interesting for somebody who practices in international law to hear about this concept of a tradition as means for interpretation and the fact of it being just recently understood as a mechanism for interpretation.

Because in international law, there is a principle of interpretation called the Principle of a subsequent practice or subsequent agreement between the parties regarding the interpretation of a treaty.

This mechanism of interpretation is established in the most important treaty regarding treaties, the Vienna Convention on the law of treaties. I wonder whether you would consider this principle of subsequent agreement between the parties… Sorry. Subsequent practice, subsequent practice in the application of the treaty to be a manifestation, you could say, of a tradition similar to what you’re talking about.

Ernest Young (43:24):
I think it’s a hard question because it might be a subsequent interpretation that moves through tradition and changes the content of the underlying constitutional principle. It also might just be a violation of the previous constitutional principle that needs to be struck down. That, I think, is the hardest thing.

As the tradition changes, what changes are just legitimate evolutionary changes and what changes are just violations of a well established principle? I don’t have a good answer to tell you. I think I would say it would be some combination of too far and too fast.

Just something that’s too much of a departure is not going to be okay. I think you can try to mitigate that problem by focusing on the ways in which the constitution allows for evolution in ways that don’t necessarily trump positive law, that draw on positive law, but don’t trump it.

So for instance, the due process clause protects property rights but doesn’t define them. The meaning of the due process protection for property will evolve over time as the underlying definitions of property evolve as well. But you aren’t saying that those definitions trump or change any preexisting constitutional principles. There’s ways of…

I don’t think this problem exists as often as people assume that it might, but I think it’s a very, very difficult problem.

Marc DeGirolami (45:10):
Yeah, I do think so, Professor Powell. I do think that there is a kind of an analogy here in the method that is used in international law with respect to the interpretation of these laws that practice fleshes this out over time. And on the question of… It will always be the case that a new phenomenon that the court will have to evaluate, it will have to decide whether that new phenomenon is, I think as Professor Young says, is continuous with or a break from the tradition.

It might be an issue of too far too fast. That’s certainly part of it. I think it’s also an issue of whether the new practice is properly and this is a matter of admittedly where discretion comes in. Is properly encompassed within whatever is the function or the reason for the existing tradition in the first place.

I give an example here. Again, if you come back to something like a tradition like legislative prayer, at what point does a new example of a legislative prayer, a new situation in which a legislative prayer is being had fall outside of the longstanding tradition? Well, it might be for example that in the new phenomenon or the new thing that’s being looked at, the legislative prayer is being used to attack someone, to ostracize someone overtly, to stick it to someone to show you’re not a part of the community. Or to force someone to do something that they don’t want to do.

That’s the function. And so a court can, I think fairly in that context say, well, no. Look, the tradition of legislative prayer if being used for these purposes is not manifesting the kind of, and I think about this as you could call it, I think of it as a virtue or some kind of the reason for having legislative prayer in the first place or for continuing that practice is not manifested or is not exemplified in this whatever it is, this new phenomenon that’s going and therefore is excludable or by contrast, is includeable even though slightly different than the existing tradition of legislative prayer.

I think these are good things. This is the dynamic feature of the method. This is what allows the… This incremental change itself going on as people flesh out, figure out in these debates together over time what the practice is all about for the community, the extended community in which they’re living.

Speaker 7 (48:15):
Professor Sherif Girgis’s article, Living traditionalism, has come up in your discussion. I’d recommend that anyone interested in this topic here read the article. It’s forthcoming in the NYU Law Review.

I think his understanding of what traditionalism is closer to yours, Professor DeGirolami and I think you said this earlier, that because he’s excluding precedent as part of what traditionalism is. And so just to continue the dialogue that I think he is putting himself in with you among others, he poses this problem called the ratchet.

I wanted to get your reaction to it. He says, “Well, if traditionalism is about practices, non-judicial precedential practices, those practices change over time.” As you emphasized, originalism kind of looks at a particular discreet moment in time and you said that’s not what traditionalism is. It’s continuity over time. Well, those practices change over time. Is it possible then that under traditionalism to be internally consistent and coherent, traditionalism has to allow for the possibility that the court’s interpretation of the constitution as traditionalism constituting its meaning could itself change over time?

So that today, Dobbs is rightly decided tomorrow or not tomorrow, but decades from now as practices change, Dobbs could be wrongly decided insofar as it relies on traditionalism, if the tradition changes and the practices change.

The problem with the ratchet is it either seems to put you in the position of saying, “Yeah, what could have been a correct judicial interpretation of the Constitution could be wrong 50 years from now as tradition changes.” Or to instead adopt this one way ratchet view of tradition that just by the happenstance that the court is deciding the case today with the state of practices and tradition that is right now, that’s the correct view, but if it happened to have interpreted the constitution, if the case had arisen 50 years from now, could have been totally different.

I’m not sure what your response would be to this problem that Sherif poses. I was just curious what your thought is.

Marc DeGirolami (50:39):
Great. I’ll jump in on it. I take what Sherif to be doing in that piece is to be emphasizing particularly, and I think exclusively, post ratification practice. The point of the paper is to say if traditionalism is about, as he identifies it, as post ratification practice and only about that, which is what he sees in certain other cases that he looks at, then the problem arises precisely that you’ve described, which is A, how do you decide when to start, at which point to start?

So in that way, the traditionalism that he is criticizing is not mine because I really like pre-ratification practice and ratification practice in addition to post ratification practice. It strengthens tradition, a tradition on my account to have endurance across. Again, I think of this sort of geological, glacial periods of time.

The more of it you have, the stronger the tradition. The less of it you have, the weaker. Nevertheless, the question that he asks and that you’re asking now, suppose it were the case and I wouldn’t think it would be decades or even…

I want to see centuries, centuries and centuries of let’s say Roe v. Wade practice at all levels of government before I’m going to be prepared to accept.

By the way, as I mentioned earlier, I want a discount for the post Roe v. Wade period where the court itself interpreted non-traditional in a way to essentially nudge the culture in one way or another. Before, I’m going to be prepared to say, yes, we have enough contrary practice that is dense enough and over enough period of time that the prior existing tradition is overcome.

Nevertheless, I’m going to bite the bullet and say, if you can show me that I don’t think you can on a number of these issues at the moment, but if in the future, centuries into the future we’re in that kind of position, yeah, that’s going to be evidence that a traditionalist would want to look at.

I don’t think of it as a ratchet problem because again, my approach to traditionalism isn’t… It’s not the way that Sharif defines the nature of the method, which is again, for him because he’s trying to isolate something unique solely about post stratification practice. Does that help answer Joel a little bit?

Ernest Young (53:43):
I think that’s exactly right. That the time horizon he’s assuming is too short. We’ve seen traditionalist decisions like that. I mean Lawrence is what? 17 years after Bower’s v. Harwick. Justice Kennedy says that the tradition has changed basically. That seems quick to me. If you are looking at many decades or centuries, then you’re not going to have this kind of isolation or oscillation that creates the problem of the ratchet.

I think he’s also focusing on substantive due process almost exclusively and that’s one sort of conflict that traditionalism can create or one sort of mode in which traditionalism can operate. It’s quite different, for instance, about cases about the traditional scope of government powers or the traditional roles of executive officials or the changes in traditional conceptions of the interests that create, that trigger federal constitutional protection, like the meaning of contracts, the meaning of property rights.

Those things change in ways that don’t create any sort of ratchet problem, but do effectively change the meaning of the constitution. I think it’s focused too narrowly and thinks tradition can change too quickly.

Kevin Walsh (55:14):
While the microphone’s being brought over to our next speaker, I guess I’ll observe that your all’s approach of saying centuries and centuries can change something would definitely be consistent with say by the time of James Otis, the Magna Carta could be treated in a way different from the type of legal instrument that it was.

That would be an example of centuries and centuries of use in a certain kind of way.

Marc DeGirolami (55:41):
Was it by the way? Was it?

Kevin Walsh (55:42):
It was treated very differently, of course from the kind of legal instrument that it was. And so in sort of an traditional approach.

Speaker 6 (55:53):
Speaking, as a concerned citizen, one of my main concerns is legislation that is promoted and passed in the wake of “emergencies” and that often leads to major aberrations.

My question is very straightforward, whether you believe that traditionalism as a method can serve as a shield against these kinds of situation. Thank you.

Ernest Young (56:22):
I would’ve thought so before the pandemic. I would’ve thought so before the pandemic. We’ve had a tradition grading all the way back to Youngstown, that there’s only one emergency power in the constitution. That’s the power to suspend habeas corpus. And that doesn’t come up that often.

There are huge political constraints on its use. Otherwise, the court has said in any number of different contexts, the government’s just got to come in and make their arguments and the tests are, to some extent… They’re flexible. The stronger the government’s interest in a given situation, the more likely they are able to be able to impinge on certain individual rights.

But the test doesn’t change. It’s just the interests you may be able to assert in circumstances, those can change. I think we have been seeing a real live doctrine of emergency powers in some of the pandemic cases and it’s kind of a shock. I would’ve thought our tradition was contrary.

Marc DeGirolami (57:32):
Yeah, I actually agree with what Professor Young just said.

Kevin Walsh (57:37):
Well, I thank you all for the questions from the questions. We range from, we started with constitutional interpretation, we had treaties and to complete the three kinds of law that are supreme law, we had statutory interpretation at the end. Please join me in thanking our panelists today.

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