Doesn’t Scalia’s originalism allow for just the kind of moral principle that Vermeule supports?
In my first post of this series on law and tradition, I said that though a judicial opinion might exhibit both originalist and traditionalist features, these are nevertheless distinct interpretive categories. In this post and the next, I will briefly explore the similarities and differences in two opinions decided by the Supreme Court in 2014—Town of Greece v. Galloway and NLRB v. Noel Canning—both of which are traditionalist but not (necessarily) originalist in method (though Town of Greece is complicated). My claim is not that these decisions are correct; only that each exhibits a distinctive interpretive approach that is intentional about maintaining coherence and continuity with very long-standing patterns of legal and cultural practices and that each determines constitutional meaning primarily on the basis of practices rather than principles.
Town of Greece v. Galloway concerned the constitutionality of legislative prayer. A municipality in northern New York began its town meetings with a prayer given by members of local congregations. A prior decision, Marsh v. Chambers, had concluded 30 years earlier that legislative prayer at the state level was compatible with the Establishment Clause. There were ways to distinguish Marsh, but the Court in Town of Greece reaffirmed it and the constitutionality of legislative prayer in rejecting a new Establishment Clause challenge.
By far the most prominent theme in Justice Kennedy’s opinion for the Court is the role of tradition in validating the practice of legislative prayer as a constitutional matter. That point is repeated no less than six or seven times in several contexts. The practice is described by the Court as “part of our expressive idiom” and our “heritage.” Kennedy writes that “Marsh is sometimes described as ‘carving out an exception’ to the Court’s Establishment Clause jurisprudence,” inasmuch as no “tests” were applied in Marsh, but in reality, “[t]he Court in Marsh found those tests unnecessary because history supported the conclusion that legislative invocations are compatible with the Establishment Clause.” It is with tradition, rather than with abstract tests, Kennedy seems to suggest, that all Establishment Clause analysis begins, and, under certain circumstances, ends. And the usual tests, including the much-maligned test in Lemon v. Kurtzman and the endorsement test, are barely mentioned by the Court. Town of Greece was an unusual decision inasmuch as everybody on the Court accepted something like the following framing: “The Court’s inquiry, then, must be to determine whether the prayer practice in the town of Greece fits within the tradition long followed in Congress and the state legislatures.” No member of the Court resisted the traditionalist frame or opined that this was an inappropriate or wrong-headed sort of inquiry.
How is this approach different from originalism? Here things quickly become complicated because of the broad variety of originalist interpretive approaches. Shortly after the decision was issued, Professor Michael Ramsey had an excellent and useful post on the degree to which Kennedy’s opinion was originalist, in which Ramsey concluded that it reflected a species of original expected applications originalism:
It’s not (typically for Kennedy) an exclusively originalist opinion, but there is a strong originalist element….Kennedy’s principal contention (following Marsh) is that the people who proposed the First Amendment also authorized sectarian legislative prayer, so the Amendment must permit it.
In academic terms, this is a version of “original expected application” – that is, how did the framers of a provision anticipate it affecting existing practices? It is fashionable in academic circles to look down on original expected applications. Under original meaning originalism, the question is: what did the text mean? It’s not, what did some people at the time think it would mean (or, worse, how did some people at the time apply it in practice once it was enacted)? If that’s right, Kennedy is looking in the wrong place – it shouldn’t matter what people thought would happen to legislative prayer, but rather what the text actually meant for legislative prayer.
And yet for the traditionalist it should and does matter that many people, including the drafters (but certainly not only they), did not believe there to be any inconsistency between the practice of legislative prayer and the meaning of disestablishment in the First Amendment. It furthermore matters for the traditionalist (as it does not for many originalists) that the practice was widely accepted in the colonial period as well as for long periods after the ratification of the Establishment Clause. That is because the traditionalist is more focused on practices than meanings when it comes to constitutional interpretation. Or perhaps it is better to say that the traditionalist believes that the meaning of text—particularly as to text that is itself abstract—is far better determined and understood by recourse to concrete practices than by recourse to still other abstract principles.
Here there may be some further overlap between traditionalism and those sub-varieties of public meaning originalism that are receptive to discerning meaning from practices and customs. Professors John McGinnis and Michael Rappaport have written favorably about this interpretive approach in this paper. Professor Ramsey puts the point well from the originalist perspective: “If a very broad consensus at the time of enactment (or shortly after) thought that provision X did not ban activity Y, that is surely strong evidence that the original public meaning of X did not ban activity Y.” For the traditionalist, practices (not principles) are not “merely evidence” or “some evidence” or even “strong evidence” of meaning. Meaning is constituted by practices. The endurance of those practices and the degree of their social acceptance—before, during, and after textual ratification—are also constituents of meaning. None of this implies that these are the only constituents. Neither does it imply that new practices cannot be enfolded into existing meanings. That the founders did not know about email or the Internet, for example, does not mean, on the traditionalist view, that the Fourth Amendment cannot apply to those new media today. But practices that were familiar; widespread; continuous before, during and after the founding; and constitutionally unobjectionable offer more than “evidence” of the meaning of the Establishment Clause. For the traditionalist, they are themselves part of that meaning.
My next post will examine the Noel Canning case, in which originalism and traditionalism are more directly at odds.