The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
What justifies reliance on enduring practices in constitutional law? It is possible to defend traditionalism on a descriptive plane, or on the ground that it reflects a democratic-populist perspective appropriate in the United States. I have made those arguments elsewhere, but in this paper, I respond to a familiar criticism that tradition has no moral force at all: doing the same thing we've always done gives us no reasons, so the objection goes, to do the same thing today.
A few caveats: first, traditionalism assigns presumptive, not conclusive, authority to enduring practices; second, what I offer is only a sketch, and more is needed for a comprehensive moral justification; third, I'm not interested in pragmatic reasons for adhering to legal precedent. What I'm after is a deeper justification that explains the worth or value of the substance of traditionalism: enduring political and cultural practices.
In the paper, I offer three justifications, two of which I excerpt here (space constraints!). This is the longest part of the paper, so I encourage interested readers to go to the paper for the third justification: that enduring practices are "determinations" within a natural law framework.
Desires and Enduring Practices: One possibility is to focus on what people desire with respect to enduring practices. Many people tend to regret their loss or destruction, as they do other phenomena: buildings and monuments that have lasted for many years; artifacts and instruments that continue to be useful and enjoyed; legal and political documents, procedures, and institutions; religious and educational institutions; objects of reverence and treasured memory (a crucifix; the national flag; a family heirloom; the gift of a departed loved one); the rules and conventions of languages ("begs the question" does not mean "makes me want to ask a question"); the rules of games (I still grouse at the changing pass interference rules in football); local and personal practices and customs (Thanksgiving dinner with family; weekly reading groups; game night). By contrast, most people do not object to the loss or destruction of other things: the decay and death of stars in distant galaxies; changes in the animal or plant world dependent upon aging or patterns of predation occurring in the natural course; changes in subjective views about a question after private reflection.
What distinguishes these categories is that the items in the first—especially the practices—are part of the social lives of persons. They are social practices. They have constituted and structured the communal lives of our predecessors and of our own together with others. Traditionalists believe that the enduring practices that have done this for constitutional law have (presumptively, and with clear exceptions) served tolerably well, and they are particularly concerned about worse alternatives. It is the fear of realizing those worse alternative possibilities that motivates traditionalism.
Traditionalism is also moved by the desire to connect our legal practices, a kind of social practice, across the past, present, and future. We value, as almost certainly our predecessors valued, the social practices we do on the assumption—and on the hope and expectation—that they will endure far beyond our deaths. If that is so, then these desires and aspirations constitute a presumptive justification for traditionalism in constitutional law. The preservation of our legal practices was an aim or objective of our predecessors, as it is one of ours, and a particularly powerful aim, since a society's enduring legal practices constitute the meaning of the activities of governance through which the members of that society understand and define themselves.
Virtues and Enduring Practices: A second approach would situate the worth of enduring practices within a larger account of legal excellence. One might draw here from Alasdair MacIntyre's moral theory of practices and the virtues:
By a practice, I am going to mean any coherent and complex form of socially established cooperative human activity through which goods internal to that form of activity are realized in the course of trying to achieve those standards of excellence which are appropriate to, and partially definitive of, that form of activity, with the result that human powers to achieve excellence, and human conceptions of the ends and goods involved, are systematically extended.
(AV, 187) Practices, understood in this way, are the "arenas in which the virtues are exhibited," and virtues are "acquired human qualit[ies] the possession and exercise of which tends to enable us to achieve those goods which are internal to practices and the lack of which effectively prevents us from achieving any such goods."
Consider the practices of chess and portrait painting. To succeed (to be excellent) in practices like these, a person must acquire certain virtues—patience, perseverance, conscientiousness, humility, honesty, and so on—together with the techniques necessary for excellence in the practice. A tradition is a set of claims or arguments representing a world view of those situated within a practice, sustained and extended through time, reflecting fundamental agreements defined and redefined by those within the practice.
Can these claims about practices help explain the value of the enduring legal practices forming constitutional traditions? Regulating off-premises signs might seem categorically different from portraiture. Lawmakers regulate off-premises signs to achieve "external goods": public safety, rising real estate values, aesthetic pleasure, and so on. The practices of portrait painting, or chess, by contrast, may lead not only to external goods (monetary and other rewards for excellence in drawing or playing) but also internal goods (the good of a "certain kind of life" revealed to the practitioner in excelling at chess or painting).
In another light, however, the respective practices are not so different. Consider the First Amendment practice of pamphleteering. Or the Second Amendment practice of availing oneself of self-defense in particular contexts, its regulation, and the entire ramified material and moral culture constituted by the practices of private firearms ownership in America. What these practices and their limits in law evince is an ongoing historical argument about the nature of legal excellence, conducted concretely in uncountable contexts, in which what the virtue of justice requires is worked out iteratively over long periods of behavior and regulation of that behavior.
The people who participate in these practices generally do so with a conscious understanding (not irrationally or unthinkingly) that they are enacting and exemplifying important rights they possess. These are the traditions of law, chiseled out within particular communities across time. If justice is something like the requirement that we give others what is due to them, treating others fairly and equitably according to uniform and impersonal standards, then the traditions of law are the contexts within which we learn what justice requires.
That is, justice is a good internal to the enduring practices that shape our constitutional law, and not merely the external result of those practices. For what are the complex of rules determining the appropriate use of deadly self-defensive force over time and across geographic space, or the laws that shape the proper exercise of legislative prayer, or the practice and regulation of pamphleteering, but traditions within which people acquire certain legal and political excellences, and through which certain legal and political virtues are manifested in community? The political excellence of learning to live well in community with others is constituted by the traditions of practice that allow for the achievement of the proper arrangement of the virtues of courage, forbearance, piety, the love characteristic of civic friendship, honesty, and many others. To include, finally, justice.
The argument applies equally to lawmakers and judges. Knowing how to make and apply the law is possible only for someone who possesses the virtue of justice. But one acquires the virtue of justice through creating, applying, perpetuating, and extending the enduring legal and political practices—the arenas within particular communities—in which what justice (together with other virtues germane to law and politics) demands is worked out. In fine, constitutional law is not just something we do to achieve some other non-political benefit. Rather constitutional law is, to borrow an Aristotelian idea, an essential feature of some of the political goods that are natural to us. We come to learn those goods, much as the artist or the chess master comes to understand the internal goods of their practices, through our traditions.