The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Referring to the Bladensburg cross case, DeGirolami criticizes Justice Breyer for "drawing" the practice with reference solely to the very cross at issue…But, of course, that criticism doesn't address the possibility that we could characterize the cross a little more generally—as a token of a practice involving crosses as symbols of wartime sacrifice in connection with a war that the wider culture immediately (recall the citation of "In Flanders Field") associated with crosses, for example—without moving to the more general "war memorials" or (even) "memorials of sacrifice" or (even) … well, you get the point.
Traditionalists do face the issue of how to decide on the determinants of the tradition against which they compare the case they are considering for inclusion within or exclusion from the tradition. Drawing a practice too narrowly will stunt the tradition's interpretive power in future cases. Drawing it too broadly will dilute the tradition to the point where the method begins to resemble something else altogether—often something like principle-driven adjudication. Then there is the associated problem of manipulability. If the fact of judicial narrowing and broadening of traditions introduces too much uncertainty in outcomes, then it may begin to appear that the method cannot really control outcomes with any predictability. Traditionalism might even be accused of being empty.
Traditionalists have some responses to these points. First, traditionalism may contain some built-in uncertainty, but so do virtually all interpretive methods anybody finds attractive. Principled interpretation (approaches that apply principles of "liberty" or "equality" or "secularism" and so on) involves a healthy dose of uncertainty as judges debate the scope of the principle at issue. To say nothing of pragmatic, balancing, or cost/benefit approaches, whose defining feature is the unpredictability that inheres in particularistic judgment. And the same is true for originalism, in which "construction" of meaning (for originalists that endorse construction) in the many crucial situations where text is unclear depends upon what construing criteria the judge decides on. Uncertainty and disagreement about outcomes are simply in the nature of interpretation.
Second, if some uncertainty concerning outcomes is inevitable, the relevant question for traditionalism is how it compares to other methods. Here, traditionalism fares well. As the Court said in Bruen, while asking judges to make historical evaluations can be "difficult" and call for "nuanced" analysis, that undertaking is "more legitimate, and more administrable, than asking judges to 'make difficult empirical judgments' about 'the costs and benefits of firearms restrictions,' especially given their 'lack [of] expertise' in the field." Traditionalism has the advantage that it focuses judges' attention on the concrete. Rather than debating in the abstract about costs and benefits, or about the scope of principles such as "equality," "liberty," or "dignity," judges are compelled to examine practices such as pamphleteering, firearms regulations, legislative prayer, the regulation of speech in specific locations, and so on. In doing so, they rely on a body of evidence that, though it may be contested, actually exists and is presented to them to be interpreted. The majority in Bruen clarified that the traditionalist process is similar to analogical reasoning for legal precedents, something judges are already well trained to do, though the object of the inquiry is enduring practices rather than judicial decisions:
On the one hand, courts should not "uphold every modern law that remotely resembles a historical analogue," because doing so "risk[s] endorsing outliers that our ancestors would never have accepted." … On the other hand, analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin. So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.
A more radical version of the level of generality critique (perhaps this is Tushnet's true objection) would be that the choice of the level of generality of a practice is entirely arbitrary—that nothing at all guides the choice, and that there is no object toward which one can point an interpreter. But contrast a similar criticism of precedent-based approaches. At what level of generality should the holding of a case be read, in order to determine its precedential weight? Answers here will vary from the narrow (the holding is the narrowest proposition thought sufficient to resolve the case as it was resolved) to the somewhat broader (the holding is the rule implied by the narrowest proposition necessary to reach the result, or "ratio decidendi") to the even broader (the holding is the most accurate prediction of how the court will rule in future cases on the basis of what it says in the decision). The conclusion one might draw is that there is no such thing as a holding, or that precedent-based theories of judging are empty. But it would be better to say that while precedential theories may underdetermine what holdings are, they direct the interpreter to various inquiries and thereby narrow the range within which disagreement about holdings occur.
Something similar occurs with traditionalist interpretation. For example, a tradition of regulating the carrying of firearms in "sensitive places" such as schools and government buildings (an example offered in Bruen) might be narrowed to exclude, or broadened to include, a law prohibiting carrying firearms in mixed-use facilities, or in schools during after-hours programs where rooms are rented to private organizations for meetings of adults. Though there might be disagreement about the outcome in these cases, the nature of traditionalist inquiry—graduated evaluations of similarity or difference between traditional "sensitive places" and the new context of regulation—occurs within a relatively confined range of uncertainty and possible disagreement.
So, too, with the initial choice of "sensitive places" as the relevant tradition. The Court has said that traditions should be "carefully refined by concrete examples" at a specific level, and while the choice of that level is not self-executing, the method sets the outer bounds of the range of judicial choice. Interpreters are directed, in the way that they are for narrower precedential interpretive accounts, to the description of a practice that best makes sense of or explains the regulatory terrain. Disagreement about which concrete practices properly fall within the tradition of "sensitive places" regulation—evincing nuanced differences about "how and why the regulations burden a…right"—is qualitatively different from free-range disagreement about what "liberty" might require in the abstract, or how to balance safety against freedom in some free-floating policy calculus concerning the dangerousness compared against the social utility of carrying firearms. The range of disagreement is refined and delimited by the discipline of traditionalist inquiry—by the direction to reflect on the "how" and the "why" of a tradition. Answering the "why" question—that is, why select the specific level of generality that one does?—will implicate some moral and political justifications for traditionalism, which I excerpt from the paper in the next post.
Finally, the possibility that there might be disagreement about whether narrowing or broadening of a tradition is appropriate in any given case is not a methodological flaw. It demonstrates traditionalism's suppleness in the face of new facts and practices. Traditionalism is not an unvarying or mechanical decision procedure. It must be judged by how well it can handle new cases. Predictability is an important part of that judgment, but only one part. Narrowing and broadening are techniques that traditionalist judges use to adapt traditions so as to account for new phenomena closely connected to the enduring practices already within the tradition. These techniques are traditionalism's dynamic feature.