Prof. Marc DeGirolami (St. John's) Guest-Blogging on "Traditionalism Rising"

I'm delighted to report that Prof. Marc DeGirolami (St. John's) will be guest-blogging from Tuesday until next Monday on his new article, "Traditionalism Rising," forthcoming in the Journal of Contemporary Legal Issues. Here's the abstract:

Constitutional traditionalism is rising. From due process to free speech, religious liberty, the right to keep and bear arms, and more, the Court made clear in its 2021 term that it will follow a method that is guided by "tradition."

This paper is in part an exercise in naming: the Court's 2021 body of work is, in fact, thoroughly traditionalist. It is therefore a propitious moment to explain just what traditionalism entails. After summarizing the basic features of traditionalism in some of my prior work and identifying them in the Court's 2021 term decisions, this paper situates these recent examples of traditionalism within this larger, longstanding interpretive method. Contrary to many claims, there is little that is entirely new or unexpected, other than the Court's more explicit embrace of traditionalism this term than in the past. The paper then distinguishes traditionalism from originalism, focusing especially on what some originalists have called "liquidation."

Finally, it raises and considers one comparatively straightforward and two more difficult problems for traditionalism: (a) the problem of selecting the operative "level of generality" for any tradition; (b) the problem of tradition's moral justification, offering possibilities based on the connection between enduring practices and (1) human desires, (2) virtues or legal excellences, or (3) natural law determinations; and (c) the problem of traditionalism's politics.

I very much look forward to Prof. DeGirolami's posts!

Comments

[SRG]

and (d) marking the start and end points of a given tradition and (e) the rationalisations required to prefer a tradition over an earlier or later tradition.

[bernard11]

the problem of tradition's moral justification,

This looks like quite a problem to me. The fact that something is traditional doesn't really carry any moral weight in and of itself. It suggests that we should try to understand why it has lasted, but that's a different matter.

[SRG]

From the online draft: "For some, the mere mention of “tradition” in law will be sufficient reason to run screaming"

[bernard11]

Well, yes.

Defining what is or is not a tradition looks like quite a problem as well. Lots of room for selective history, ignoring some points of view, defining start dates, limits, etc.

Maybe DeGirolami will provide some answers.

[Sarcastr0]

Constitutional liquidation has always seemed a good and practical doctrine to me.

[Darwinnie]

America had a tradition of slavery. Then after the 14th Amendment it had a tradition of Jim Crow.

[The Margrave of Azilia]

Does "(3) natural law determinations" suggest that he's going to comment on the attempted revival of the classical legal tradition?

[ReaderY]

After Bowers v. Hardwick, there was a period when this was the rage, and in Webster v. Reproductive Health Services, between Bowers and Casey, the clinic proceeded to argue that a right to abortion was deeply rooted in this nation’s history and tradition.

I find myself less of an “ist” than some others. I find myself inclined to agree with Brown v. Board of Education, despite Congress having voted for segregsted schools in Washington, on grounds that a de jure caste system was inconsistent with the concept of equal protection of the laws by any reasonable definition, and also that separate but equal had proved unworkable. So I find myself not strictly bound by either originalism or tradition. At the same time, the constitution does not embrace philosophers’ ideals of strict equality as a moral imperative. So I don’t think the constitution requires strict scrutiny every time there’s a racial difference. In general I think limited affirmative action is constitutional. There’s a big difference between racial disparaties rising to the level of a caste system and minor considerations of race at the margins.

For due process, I do think history is more important, and I am skeptical of an expansive concept of sunstantive due process. The voters and legislatures rather than the judges need to be the ones to pick which philosopher to go by.

So judges aren’t strictly limited to history. But what they do has to be directly grounded in text and informed by history if a departure from tradition. They can’t just pick general phrases as justification for doing whatever they think is right.

Informed by history doesn’t always mean staying with tradition. History showed that separate but equal resulted in a de facto and substantially de jure caste system.

[The Margrave of Azilia]

"minor considerations of race at the margins."

Unfortunately, that would open the door to all sorts of "minor" discrimination, against *all* races. And if an instance of discrimination is rare, that would be perhaps a very annoying thing for the person to whom the rare thing happens.

When the plain text doesn't give a specific answer, then those who believe in timeless principles underlying the law can advocate reading the text in light of those timeless background principles. This is why I hope the author is going to look at the revival of the classical legal tradition - scrape away barnacles like Vermeule's love affair with the administrative state, and the idea may be shipshape.

[Darwinnie]

Timeless background principles? That’s an invitation for judicial activism if I ever heard one. Totally amorphous with no guardrails save, as I suspect is the case with you, a judge’s interpretation of the Bible or other preferred religious text.

[The Margrave of Azilia]

More mind-reading?

I think I've gotten to the point where, rather than "rebut" would-be mind readers, I'll just point out their fallacy and leave it at that.

[Darwinnie]

That’s a cop out. I’ll just assume I’m right and leave it at that.

[The Margrave of Azilia]

I simply don't see the benefit of an extended argument along the lines of "you believe this!" "No, I don't!" "Yes, you do, you're lying!"

Especially on an issue where my views - unlike, I suspect, your own - are fairly nuanced.

Suffice to say that even Adrian Vermeule, a real-life integralist theocrat straight out of your bad dreams, also cites Ronald Dworkin for certain purposes.

[SRG]

Are "timeless principles" similar to "natural law"?

[The Margrave of Azilia]

Even the author of the post used the term, and I quoted that part to express hope he'd be talking about the classical tradition...so yes, good guess.

[Darwinnie]

Natural law is rooted in religion. See Mike Pompeo. It has no place in a secular government.

[The Margrave of Azilia]

Would you believe that the classical legal tradition derives no little inspiration from...the classics?

Here are some of the nuances:

"This paper treats the relationship between natural law and Cicero's code of laws, as presented in Cicero's work On Laws. In response to recent interpretations, it argues that Cicero's code is not identical with natural law. Instead, his laws participate imperfectly in the commands and prohibitions of natural law. Just as Cicero uses a Stoic conception of natural law, so he uses a specifically Stoic view of participation in natural law. His laws share imperfectly in the guiding power of natural law by prescribing intermediate duties as a means to the attainment of virtue. Overall, Cicero's code of laws prefigures modern written constitutions in the attempt to found the basic laws of a state on an unchanging moral norm."

Elizabeth Asmis, "Cicero on Natural Law and the Laws of the State," Classical Antiquity (2008) 27 (1): 1–33.

https://online.ucpress.edu/ca/article-abstract/27/1/1/92778/Cicero-on-Natural-Law-and-the-Laws-of-the-State?redirectedFrom=fulltext

[Sarcastr0]

You do see how that 'unchanging norm' shows how there is not a workable definition of what the natural law is?

[SimonP]

"Living constitutionalism"'s new, conservative garb. This is just transitioning conservative judicial activism from its minority, oppositional "originalism" stance, to an ascendent, empowered school of thought. For a generation, we were told to look back to the text. Now, it turns out that the text and even the history isn't quite so important.

It makes me genuinely nauseous to think that this rank hypocrisy and incoherent doctrine could define constitutional law for the remainder of my life.

[hobie]

HaHa!
"his new article, "Traditionalism Rising," forthcoming in the Journal of Contemporary Legal Issues."

[The Margrave of Azilia]

Heh heh, I hadn't noticed that.

[Stephen Lathrop]

Presumably traditionalism is not just some fancy way to say, "history." Thus, in whatever context we find it, does traditionalism encounter and reinforce history, attempt to avoid history, or seek to replace history?