The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Constitutional Interpretation

Traditionalism Rising, Part V: The Problem of Politics


I'll conclude my time here discussing my new draft on traditionalism with the problem of traditionalism's politics. The problem is pressing because of internecine political discontent that now seems to afflict originalism, in whose shadow traditionalism at present stands. But it is also vital because all interpretive methods have a politics: they may be motivated by a particular set of political commitments; or they may lead systematically to outcomes with a particular political valence; or the adherents of the method may tend to come from a particular political perspective; or some combination of these. Interpretive methods are of course more than their politics, but in this post, I am focusing on this feature of them. To understand traditionalism's politics, it may be helpful to set it in relief against the politics of originalism against which it is emerging.

In its early years, originalism as a sociological movement was a response to the liberal-progressive legal politics that came to dominate constitutional law in the twentieth century. For first-wave originalists, the jurisprudence of the Warren Court was felt to be incompatible with conventional lawyerly craft and led systematically to undesirable political outcomes. Yet as originalists came to suspect that a direct assault on the citadel constructed by the Warren and Burger Courts might backfire, they pivoted to offer an interpretive program that appeared politically neutral and might not be dismissed as mere political tit-for-tat.

As originalism's second wave accelerated, however, the politics of its adherents changed as well, attracting more libertarian and progressive scholars. Methodologically, the second wave no longer conceived constitutional law as the search for the lawmaker's will, but as a quest for the meaning of the Constitution's words. With its constitutionalism of semantics, methods, conventions, and most recently computerized linguistic corpora, originalism hoped to offer something apolitical.

But politics could not be so easily outrun. At first, originalism's positivism, and its putative rejection of politics, was a way of inscribing a fusionist alliance of libertarianism and conservativism into the constitutional realm. The illusion of originalism's political neutrality, however, could last only as long as the subscribing constituencies sensed that they were equal partners in a strategic alliance of method. As fusionism began to unbind, as originalism attracted progressive adherents, and as social conservatives' sense of embattlement and of the consistent failure to win critical cases increased, originalism's political denialism became less tenable.

Did all that change in the 2021 term, in which ostensibly conservative outcomes prevailed in some of the perennial political hothouses of constitutional law?

In part, that depends upon the extent to which originalists claim the Court's output. There are significant disagreements about that. In part, it depends upon whether the decisions really are originalist. On various metrics, they may not be. But it may also, finally, depend upon how originalists understand and present the politics of their method. In rejecting the Court's output (or perhaps in concurring specially in selected results), some originalists might insist that originalism does have a politics—the politics of classical liberalism, libertarianism, progressivism, or something else not conservative—and that these politics were not reflected in (some of) the Court's key decisions. Another approach might be to persist in denying that originalism has any politics. Originalists might reject the term's cases as non-originalist—or perhaps as "bad" originalism—because they are politically motivated, or because they fail on a technical metric of originalism, or something like this. But this response would ignore the reason for the rising discontent with originalism: the unbinding of fusionism in the political culture and its effect on the constituency that once supported originalism.

Indeed, perhaps frustrated by a perceived divorce of interpretive technique from politics, some legal conservatives (especially younger ones) have begun to invest intellectual resources in alternatives. One of the most prominent is "common good constitutionalism," which, as Adrian Vermeule describes it, holds that the "sweeping generalities and famous ambiguities of our Constitution afford ample space for substantive moral readings that promote peace, justice, abundance, health, and safety, by means of just authority, solidarity, and subsidiarity." One of the felt attractions of such an approach is that it reorients constitutional discourse in an expressly political direction, returning it to the classical legal tradition for guidance. Already, common good constitutionalism has generated many critiques, and it has pushed some originalists to formulate their own political premises more explicitly. It is a time of significant political ferment for conservative constitutionalism.

Traditionalism, too, reflects a response to the present political moment. Unlike both originalism and common good constitutionalism, the politics of traditionalism ought to relate in some way to the enduring practices that sit at the method's core. Also perhaps unlike these others, traditionalism's ground-up approach assumes that constitutional interpretation and adjudication proceed small bore, in cases and controversies that involve ordinary details and the mundane facts of Americans' lives. Traditionalism asks us to recall that ours is a constitutionalism of things: banks, religious observances and symbols, families, homes, businesses, guns, countless varieties of human relationships, voting procedures, schools, contracts and property arrangements, wills, government policies and programs of many sorts, and sundry political and cultural practices.

The preservation of the enduring practices of the past, practices that have given people's lives structure, meaning, and worth, motivates traditionalist interpretation. Often such a politics would be what many consider conservative, but it might be politically unconventional as well. It is preservative and custodial, and while it might interest some conservatives, it might also appeal to political progressives concerned about the displacement of communities, customs, and ways of life.

Consider traditionalism's politics in what might seem an unlikely area: civil procedure. Traditionalism might be the custodian of enduring practices reflecting the constitutional sensus fidelium of what is just and right in, for example, a state's power to compel a defendant—whether an individual or a multinational corporation—to answer for wrongs done to the community. Or consider free speech. Speech that wantonly disgraces military valor, attacks families grieving at the funerals of their loved ones, floods communities with commercial messaging that degrades common spaces, inundates children in blood-soaked forms of entertainment—state regulation of these might be preserved by the traditionalist judge as civic expressions of an enduring, healthy, moral and political ecology against the onslaught of those in the grips of a destructive vision of freedom.

Not all traditions will be worthy of preservation and continued custody, and it will require elaboration of the justifications I discussed in an earlier post (or others) to determine which should endure. But many should, and many urgently require a concerted defense and reconstruction. To the extent that a revitalized constitutionalism is possible today, it will depend upon interpreting the words of the Constitution with an eye to the sustenance, custody, and conservation of these old and enduring ways of doing and being.

Traditionalism, perhaps unlike some of its rivals, proceeds toward the common good inductively and from the ground up. The freedoms we enjoy, the obligations we are bound by, and the goods we pursue are intimated in our concrete experience of them as they exist in our world. Traditionalism therefore takes an oblique approach to the common good. It finds its way bit by interpretive bit into an older metaphysics of law now largely lost to us.

Rediscovering the role of justice, freedom, security, prudence, human well-being, and others, as well as their relationship to one another in law, is an important and necessary political project. But it may be that, perhaps unlike in centuries past, the line of causation in their rediscovery, at least in constitutional interpretation and adjudication, will run today from the particular to the general. The extent to which courts might encourage and promote the rediscovery of the political virtues of American constitutional law will depend upon whether they can protect and cultivate the sustaining traditions of the past within the compass and limits of their office. As Dante learned when he was suddenly struck blind by the brilliance of the face of St. John, the metaphysics may come easier with time, patience, and enduring practice.