Traditionalism Rising, Part IV: The Problem of Justification

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.

Comments

[ReaderY]

The 18th century naive faith in reason being articulated seems very out of touch with modernity. Obscurantism is very real, and obscurantists have repeatedly been right over tbe long run. In a complex society and environment, innovations frequently turn out to have unforeseen consequences, sometimes disastrous ones, and traditional practices turn out to have more efficacy than might have been perceived by reason alone.

We now know that human capacity to reason doesn’t have anything like the limitness magnificance if had in 18th century grandiose fantasies. It’s very limited. We have almost zero ability to predict the future. As Nicholas Nassim Taleb explained, much more of history is the result of rare and unforeseen events than of causes we were able to perceive. And our attempts to predict what society will be like and the long-term consequences of innovations are very often wrong. IBM predicted a maximum world-wife market of 50 computers tops. The New York Times said television would never catch on because people wouldn’t have time to stare at a small screen. 3M executives initially rejected Saran Wrap because it had this nasty tendency to cling.

The mere fact we’ve survived with a practice for some time is some evidence it’s compatible with survival. Like the appendix, which doctors famously used to believe served no function, our inability to see reason in something can be nothing more than evidence of our own ignorance and blindness. “Reason” is very often nothing more than ones ideology, and dismissing things they can’t see the reason for is often nothing more than the way people in power demand fealty to the ideology of the day.

This has been the case many times in our history. To give a very recent example, in just the last couple of decades behaviorial economics has finally started illustrating how rediculously bad a predictive model the sort of rationalist assumptions made in classical economics ended up providing once exposed to empirical testing. Empirical evidence has increasingly shown that what seems to be reasonable explains almost nothing about what’s actually going on. Many aspects of economics as it really is simply behave in a counterintuitive way.

What behavioral economics has shown is that asking “is this reasonable” is simply a bad way to arrive at truth or wisdom, at least compared to empirical evidence. What we think is reaonable just doesn’t matter nearly much as it seemed in the 18th century when we still thought ourselves as being largely at the center of the universe.

Indeed, many current theories would have been completely unreasonable to people of centuries ago. The idea that the earth revolves around the sun is unreasonable. The concept of evolution is unreaonable. Quantum mechanisms is unintelligible - we can’t explain it, it defies our concepts of logic. The concept of climate change is unreasonable. Increasingly, it’s become clear that proceeding based on what we think reasonable can be a very poor way to proceed. The world around us is just durned unreasonable a good deal of the time, and we just have to deal with it.

Let’s talk sex. Restrictive sexual practices like monogamy offer a population some protection against fatal sexually transmitted diseases which may well arise every few thousands or tens of thousands of years. Many isolated communities never had such practices, but they never had the diseases either, until introduced by explorers. And once exposed to the global biome, it often didn’t exactly go well for them. Perhaps our ability to cure diseases has reached the point where we are confident we can deal with any new one that comes up, and we don’t need to maintain a sort of ritualized semi-quarantine about sex to cover the possiblity. But perhaps not. Do we want to take the risk?

I would submit that there is no clear rational answer to that question. We can’t predict the future. Sometimes the best thing to do is admit we don’t really know. The risk-averse obscurantist may be right. Courts should leave such questions to legislatures and let people slog it out as best they can. Doing this in no way guarantees the right answer. But at least it ensures people, and not some elite who self-importantly imagines they have answers they don’t really have, will be to blame for the consequences.

[SimonP]

It's really too bad that this is so incoherent.

There is really nothing more to this than "status quo ante, ergo itaque semper" (or whatever the proper Latin would be). Yes, people value social conventions and enduring practices. That's why we mourn the loss of privacy rights and the way in which the public sphere has increasingly become a shooting gallery. But there are social conventions and enduring practices that deserve to be cast aside. The continuing development and perfection of virtue is therefore open-ended and always evolving, where the old conventions give way to new ones, as we try to understand where our principles and values truly lead.

That's what most modern virtue theorists understand, and try to grapple with, and it's really quite careless to cite them while actually arguing for a more static, natural law-oriented theory of constitutional interpretation. MacIntyre cited community and continuity as a way of giving substance to a virtue ethic not rooted in Aristotelian or Thomist conceptions of the "human good." But unless you're aiming to incorporate that kind of living ethos into constitutional interpretation, MacIntyre does you no good here. If you're trying to interpret the scope of the Second Amendment's protection, for example, but you're interested only in what the conventions and practices in the mid-nineteenth century around gun usage and prohibitions were, then MacIntyre and modern virtue theory provides no justification for your approach. You're just lobotomizing their work and cherry-picking it to suit your substantive aims.

Originalism, at least, connects its method to a presumed set of rule of law values that cohere with a constitutional legal system. But you make no effort to "justify" traditionalism here that makes sense for a legal system. Social conventions and enduring practices might inform how we draft our laws and constitutions, but the purpose of passing those laws and ratifying those constitutions is to set forth an objective set of rules that govern. As such, the justification of any interpretive method applicable to those legal texts needs to be rooted in that purpose, not in an underlying interest in furthering contemporaneous traditions that already finds expression in the laws themselves. In other words, we, as a society, decide what traditions and practices to protect and further by passing laws. Under originalism, judges have nothing further to add to that process.

In contrast, under living constitutionalism, judges have the role of further refining and revising those traditions and practices, in order to be more perfectly consistent with a deeper and more enduring set of values inherent in our law. That sacrifices some rule of law values in favor of a deeper, but still public, sense of "justice."

How do we "justify" traditionalism, in similar terms? I see nothing of the sort here.

[ReaderY]

Saying that courts shouldn’t strike down traditional law absent a constitutional mandate is very different from saying tradition is always wise or good. It’s a false dichotomy. It’s just saying that so far as courts are concerned, tradition gets the benefit of the doubt. Legislatures might think differently.

[SimonP]

I don't think I asserted that Marc is saying that "tradition is always wise or good."

I did say that Marc's "justification" for traditionalism doesn't really seem to work, unless the point is to justify a modern traditionalism, the recognizes that recent practice establishes the kinds of traditions and enduring practices people hope to preserve through the law.

[ReaderY]

Ancient skepticism, after knocking out all certainty about what to do, tended to go with tradition. What else is there? In the 18th Century David Hume, who revived and ststematized ancient skepticism, was an anomaly. But ancient skepticism has gotten a much better hearing and following as the centuries have advanced, with significant converts in the 20th and 21st centuries.

This is not to say ancient skepticism is right. But it is rational. And this makes its conclusion, that tradition gets a presumption of validity, a rational conclusion. The idea that changing the law is primarily the job of legislatures rather than courts stems from ancient skepticism.

[apedad]

“Many people tend to regret their loss or destruction….”

Many people also work towards the destruction and elimination of “traditional” practices.

Matter of fact, nothing less than the entire human history is the chase away from tradition and instead is the search for new lands, new practices, new techniques, new philosophies, etc.

I’m beginning to think Tradionalism is simply a lazy, SHORT-SIGHTED way of thinking that only losers of the culture wars wish to use to - tenuously - hold on to there way of life.

[apedad]

AAAARRRG….. their…..

[SimonP]

The game is really given away by the fact that these "traditionalism" posts draw heavily on virtue theory while ignoring that the content of virtue is to be determined by virtuous persons.

Virtue theory is not law-like. You don't establish a set of duties or rules that are justified on deontological or utilitarian grounds. You develop virtue, and virtuous people act virtuously. So at the center of any virtue theory is the concept of the virtuous person - who they are, how they become virtuous, how their virtue is structured, etc.

So people like Marc here really ought to be spending more of their time thinking about judges than about the "traditions" embodied by our Constitution. And our judges are just not very "virtuous" people. The fact that they do not care for that kind of analysis, and treat this exercise as just another evolution of originalism to suit the conservative legal agenda, just helps to illustrate how devoid of content their theory is.

[JasonT20]

So people like Marc here really ought to be spending more of their time thinking about judges than about the "traditions" embodied by our Constitution. And our judges are just not very "virtuous" people. The fact that they do not care for that kind of analysis, and treat this exercise as just another evolution of originalism to suit the conservative legal agenda, just helps to illustrate how devoid of content their theory is.

This has always been my biggest problem with originalism and textualism, as favored by conservative and libertarian legal thinkers. As academic exercises, they take on an air of erudition, but it is judges that need to put it into practice, and our method of selecting judges has become almost hopelessly partisan. Judges inclined to apply judicial philosophy consistently and without regard to their personal, cultural, and political preferences seem to be a vanishing breed. Getting on short lists for federal judicial appointments is too often a matter of networking with partisan activists. Clerk for prominent judges that line up one or the other side, join groups that have ideological agendas, etc. Senate confirmation is a process that is almost strictly partisan now. Few senators anymore have a belief that the best judge is one that is apolitical. Instead, judges' primary qualifications are what ideology they line up with.

Adding another judicial theory that judges can use to pick and choose what they want to achieve their partisan or ideological goals is not something that would do the U.S. legal system any good.

[Kords]

"[T]raditionalism assigns presumptive, not conclusive, authority to enduring practices."

I'm not sure that line is accurate, at least under current traditionalist jurisprudence. For example, in Dobbs, the lack of a historical tradition establishing a right to abortion was treated as conclusive insofar as the court held that "a fundamental right must be objectively, deeply rooted in this Nation’s history and tradition."

So, a tradition of not treating certain things as rights is dispositive, at least in the context of recognizing unenumerated rights.

[JasonT20]

Yes. In the first post on this topic, I noticed that Marc Degirolami said something along the lines that traditionalism would look at more than what laws had been passed, but also at how people actually practiced the things at issue. Abortion was not enshrined as a right at the Founding, and laws restricting or banning it started to appear around the time of the adoption of the 14th Amendment, but those laws would not have been necessary if it was something that was not being practiced. I doubt that Alito's opinion in Dobbs adequately addressed this.

[Rev. Arthur L. Kirkland]

A Fantasy Marketplace Of Ideas would be a great place to test traditionalism, or the contention that 'people (who had less information and experience) have long done it this way.'

This being football season, I envision an 11-on-11 match at the hall of great debate.

On one side would be Prof. Marc DeGirolami and his choice of assembled traditionalists.

I would draft this team for the other (non-traditionalism) side of the debate:

Giordano Bruno
Nicolaus Copernicus
Charles Darwin
Albert Einstein
Galileo Galilei
James Hutton
Mondino de Luzzi
Isaac Newton
Muhammad ibn Zakariya Rasi (Rhazes)
Ignaz Semmelweis
Michael Servetus

As always, may the better ideas win!

[Rev. Arthur L. Kirkland]

If Prof. DeGirolami is wondering where he might find some advocates willing to try to defend traditionalism, this seems a fine place to recruit plenty of tradition-loving clingers.

After reading that article, and being a sport, I would offer Prof. DeGirolami and his team some time for some remedial English and math lessons before expecting them to take on a lineup of Galileo, Einstein, Copernicus, Rhazes, Darwin, etc.