Traditionalizing Everything

I review Prof. Jack Balkin's new book

At Law & Liberty this week, I review Yale Law Professor Jack Balkin's new book on tradition in law, Memory and Authority. Tradition is having a moment in constitutional law, and Prof. Balkin offers an interesting and, in some respects, persuasive analysis. For example, he correctly observes that lawyers use tradition selectively, highlighting aspects of the past that support their clients' positions and downplaying others. (No great surprise there; lawyers want to win cases). He points out that traditions are often  contested and that appeals to tradition depend on listeners' identification with the past and desire to honor it--which isn't always the case, especially in 21st century America.

Notwithstanding these problems, though, Balkin argues that progressives like him should embrace traditionalism in law and adapt it to their own agendas. Prof. Balkin already considers himself an originalist; it turns out he is a traditionalist, too. I'm basically sympathetic to tradition in law, though I recognize the problems, and it's always nice to have allies. But Prof. Balkin's definition of tradition is so broad that it's not clear he's really talking about tradition at all:

[T]here are limits to how elastic tradition can be, and Balkin's own understanding of collective "constitutional memory" is so expansive that at times it hardly seems like tradition at all. For example, he praises Obergefell v. Hodges, which held that the Constitution confers a right to same-sex marriage, for its correct use of tradition. True, there is no "history of specific legal guarantees for same-sex marriage in American law." But he argues that American tradition should be understood in a broader, more sensitive way, as a commitment to animating principles. The Obergefell Court correctly saw that the reasons why Americans historically have supported marriage generally obtained in the new context of same-sex marriage as well, and applied those reasons to reach a satisfactory present-day result. One can "alter or even reject existing practices," he writes, "while being faithful to the country's traditions of liberty."

Now, one can praise or criticize the Court's reasoning in Obergefell. But to paraphrase something Grant Gilmore said about Oliver Wendell Holmes in a different context, the magician who can traditionalize Obergefell can, the need arising, traditionalize anything. Tradition refers to concrete practices and accommodations that endure across time in a community, not abstractions like "liberty" or "equality" or "dignity" or "justice." And one cannot plausibly claim that same-sex marriage is an American tradition in that sense. One must choose which traditions to follow and which to discard; that is the essence of modernity. But one cannot decide a case according to an abstract, indeterminate principle and call oneself a traditionalist. One may as well say that one is doing something new—that one is deciding a case based on one's normative commitments and leave it at that.

Memory and Authority encourages lawyers who have sympathy for the role of tradition in law to own up to the fact that they inevitably must pick and choose among the traditions that make up our legal heritage and to account for the objections of their fellow Americans who do not have the positive feelings about the past that they do. In that, the book is very valuable. In terms of constructing a persuasive argument for the use of tradition in law, though, the book does not really deliver. Balkin's "usable past" turns out to be much more about what is "usable" than what is "past," such that tradition seems to mean whatever broad principle works to get you to your present goal. That may be good or bad, but tradition it's not.

Interested readers can find the whole review here.

Comments

[Rev. Arthur L. Kirkland]

Might the question involve which constitutes American tradition — (1) bigotry or (2) diminution of bigotry?

Or (1) superstition or (2) diminution of the role of superstition?

Or (3) unearned privilege or (2) diminution of unearned privilege?

Etc.

Some would argue (with longstanding evidence, some of it current and vivid) that bigotry, superstition, and unearned privilege are American traditions.

Others would argue (with powerful evidence, from the moral high ground) that diminution of bigotry, superstition, and unearned privilege are American traditions.

[Krayt]

Process of continuous improvement, to borrow a fashionable term from business.

We have processes to do so, and girders to prevent thugs of all stripes from gaining footholds by assuming too much power, at their own whim.

[Brett Bellmore]

"But Prof. Balkin's definition of tradition is so broad that it's not clear he's really talking about tradition at all:"

The same is true of his definition of originalism. I've referred to him as a Fabian originalist for that reason: Just like the Fabian socialists of the early 20th century sought to undermine liberalism by stealing its name, he's trying to undermine originalism by gutting it so that living constitutionalism can wear it as a skin suit.

[Just Eric]

"the magician who can traditionalize Obergefell can, the need arising, traditionalize anything"
Amen. Redefinition of marriage is a great example of something which courts should have Heisman-ed to political processes.

[Rev. Arthur L. Kirkland]

The Volokh Conspiracy: Official Legal Blog of America's Vestigial Conservative Bigots

(now with less UCLA complicity!)

[BrotherMovesOn]

A Raffles vs. Wichelhaus reference.
TOTALLY AWESOME

[tkamenick]

Wait, so Balkin himself says he can traditionalize anything.... and he thinks that's a point in his favor?

[tkamenick]

Oh, no, the quote is from the review. The way it's led into really sounds like Balkin was saying that.

[Brett Bellmore]

That's true, but while I'm not likely to shell out to read the book, I'm familiar enough with Balkin's other writings to say that, even if he wouldn't explicitly say that, he'd probably be doing that.

[ReaderY]

There seems to be a standard routine in academia that whenever a new term starts getting lots of attention, people take whatever they were doing anyway and claim the new term applies.

I think Bowers v. Hardwick settled the “history and tradition” issue. The Lawrence Court explicitly abandoned history and tradition to overrule it. At least the Lawrence Court was honest enough not to try to claim that what they were doing was consistent with the history and tradition standard. And I agree Balkin’s definition of tradition is pretty much Humpty Dumpty’s. It means just what he chooses it to mean, neither more nor less.

[Stephen Lathrop]

Questions for Movsesian.

Where the historical record discloses both tradition A, and tradition not-A, as happens in countless instances, does the law get to choose one to rely on, and discard the other? Or does the law find itself saying, every time, “Yup, that’s part of American tradition?”

See the problem? If you want legal guidance, the former works better, at the expense of accurate insight about the past. If you want accurate insight about the past—like, you know, you want to discover American history and tradition—then you get less legal guidance.

And while we’re at it, are you talking about tradition the way an academic historian would, or the way Clarence Thomas would? In the former case, you will have to look at legal history a little bit, and then rely maximally on legal outcomes (especially including outcomes in disregard of law), and customary practices (once again including conflicts between them.) In the Clarence Thomas case, you will be talking almost exclusively about the texts of laws, and calling those the traditions. And not all the laws, mind you. Just the ones from time-frames Thomas thinks of as properly, “traditional.”