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Law and Tradition in America: Marc DeGirolami Replies

I am grateful for the learned responses of Professors Bernstein, Levinson, and Stoner to my Liberty Forum essay on law and tradition. Of course, it will not be possible to reply to each point. But it may be simplest to consider the arguments of Professors Bernstein and Stoner together, before more particularly addressing Professor Levinson’s.

Bernstein and Stoner are positively inclined toward investigating the connection of tradition and American law, though in different degrees. Professor Bernstein argues that though the common law does depend upon custom and tradition, it has been colonized in more recent decades by intellectual movements that are to some extent all the children of legal realism. He quite rightly points out that law and economics has revolutionized the academic study of tort law as well as disciplines like contracts and antitrust, and he makes some interesting observations about the comparative importance of custom in American common law and other common law countries. One wonders in what degree the law-and-economics-inflected reimagining of concepts like breach, reasonableness, and duty have actually changed the practice of tort law.[1]

He and Professor Stoner both emphasize that the advent of legal realism, and the figure and shadow of Holmes especially, seem to be critical in the diminution of tradition as a source of justification and strength in American law. In this I agree with them. Indeed, it would be worthwhile to study whether and just how the legal realist period in the United States affected the reliance on traditional arrangements that had, until then, been a fixture of law. And, as a comparative matter, one wonders whether countries with common law traditions but without legal realist equivalents did not experience similar damage to the association of law and tradition.[2]

Some common law disciplines seem to have been affected by legal realism and its academic descendants more than others, however. Since Professor Bernstein mentions criminal law, a field that is largely (but not entirely) codified at this point, it may be worth pointing out that while concepts such as mens rea underwent massive rationalizing reforms in the mid-20th century intended in some respects to strip away traditional understandings of the “evil mind,” those efforts have not been altogether successful. Indeed, there are features of mens rea such as “depraved heart” murder that remain stubbornly traditional—and, indeed, that are experiencing something of a renaissance in certain state systems. The legacy of the contest between traditionalism and anti-traditionalism in the American common law is complex and hardly unidirectional. I do not think Professor Bernstein disagrees.

When it comes to constitutional law, I find myself in accord with almost all of what Professor Stoner writes. As he says, in arguments he has developed to great effect in the past, one cannot properly grasp some of the written provisions of our own Constitution without recurring to unwritten, traditional understandings about the sorts of practices encompassed in such “shorthand” phrases as “due process of law,” “the right of habeas corpus,” “the executive power,”[3] and many others. Absent those understandings, we will likely continue to be deceived by the notion that constitutional law is simply “judge-made law” that is attached opportunistically to text. Originalism, at least in the academic garb that it has assumed in the last generation, will not alone be able to undeceive us.

Indeed, I agree with Professor Bernstein that contemporary originalism is not at all the same as a revived constitutional traditionalism, though perhaps unlike Professor Bernstein I believe the two can be compatible so long as traditional practices are accepted as highly probative evidence of original meaning. Similarly, the “original methods” originalism of John McGinnis and Michael Rappaport does have a strong traditionalist valence inasmuch as it seeks to situate the interpreter within a particular community and tradition of interpretation.

Notwithstanding these and other disagreements, however, it appears to me that Bernstein, Stoner, and I are all at least in principle favorably disposed to admitting the substantial influence of tradition in American law, though we may disagree about just how substantially positive it has been.

It is a somewhat different thing to reply to Professor Levinson, who has earned more attention in this reply by being considerably less sympathetic than my other interlocutors to the value of exploring the relationship of tradition in law. He makes three primary points: 1) My essay was pitched at a sufficiently abstract level so as to be criticized with the aphorism that we are all traditionalists in America so long as we are essentially liberal Progressives (or libertarians). 2) American Founders such as the authors of the Federalist Papers were revolutionaries, not traditionalists, so that the predominant American political-legal tradition is liberal Progressivism, if not radicalism. 3) To the extent a non-liberal-Progressive traditionalism has been part of American intellectual history, it has been responsible for terrible things—slavery most prominent among them—that have rightly been abandoned.

As to the first point, it is difficult to think of anybody (not even Professor Levinson’s traditionalist incarnation, Edmund Burke, would qualify) who holds that a positive view of tradition implies or requires stasis or the total absence of change. Even for those, like Burke, well-disposed to adhere to past patterns of behavior, it is necessary to devise new ones if only because the situations to which those traditional patterns must be applied are different than those that preceded them—“confirming the wisdom of what remains,” as Professor Stoner has it. At any rate, though the relationship between tradition and social change is complex, at least this much may be said: It is not a one-sided affair. It is not all tradition and no change or progress. Otherwise, we would all be liberal Progressives.

Perhaps the differences between Professor Levinson and me are therefore more matters of mood, disposition, or emphasis. He lights up at those moments in American culture and history in which people exercise their freedom to “denounce” the inheritance of the past. It is probably fair to say that I find such moments less electrifying, though I agree with Professor Levinson that they do exist.

I offer the Madison of the National Bank controversy. He counters with the Madison of Federalist 14 (though I might observe that a “decent regard to the opinions of former times” is not the same as an indecent contempt for them).

I could parry with language in Federalist 15 (“experience” as “the best oracle of wisdom”) or the very final Federalist 85 (“No human genius, however comprehensive, is able by the mere dint of reason and reflection to effect it. The judgements of many must unite in the work.”). Or even Federalist 2, in which John Jay notes with some pride that “Providence” has seen fit to give the country to a people “very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long ad bloody war, have nobly established general liberty and independence.”

Doubtless Professor Levinson would have a riposte at the ready, and so it would go on. He characterizes these as internal “contradictions” within The Federalist but they may simply be different features of the moral and political experience of these three authors, each representing its own portion of wisdom. Many of them do not vindicate liberal Progressivism in the least.

In fact, it severely distorts the American Founding to call it either committed to a liberal Progressive ideological program or rabidly radical. True, there were elements of the Old World that were cast off by the new nation, but as historians from Forrest McDonald to Eric Nelson have (in their own ways) shown, the temper of the American Founders may have been even more traditionalist than their English progenitors. Early Americans were the inheritors of an English constitutional traditionalism that was centuries old. Their revolution was motivated by the Crown’s denial of what they perceived as their traditional, ancient rights as Englishmen, rather than by the desire to denounce and exchange those rights for something altogether and radically different. What they desired for themselves was what they already knew well as the tradition of self-government in liberty.

The English Bill of Rights was a model for ours, just as the Act of Union was a model for our federalism. As Greg Weiner has put it in his fine recent essay for Law and Liberty, “Of course, the colonists were deeply affected by the ideas of the Enlightenment, as they were by the ideas of antiquity (far more essentially a staple of their curricula).” Tradition and change were at least equally parts of their political and intellectual constitution. As they should be (but regrettably are not) of ours.

Professor Levinson also chides me for failing to raise a sufficient number of concrete examples of law’s relationship to tradition. But is that really the problem? Given the limits of the form, my essay was overstuffed with such examples—as I suggested, “an impressionistic collection” of episodes drawn from a hodgepodge of cases and controversies in American law and history. What I suspect he really means is that I do not address the examples of tradition’s association with law that he believes warrant special discussion. In particular, the odious defense of slavery on the basis of traditional arrangements, and what he takes to be analogously odious defenses of traditional sexual morality in response to the changing sexual mores of some segments of American society. As Professor Bernstein put it, “what was more traditional in American society, especially in the South, than discrimination against African Americans?”

It is true that arguments from tradition have been used to justify and perpetuate reprehensible practices such as slavery. Those arguments should be and have been rightly condemned. I condemn them as well. It should also be noted that many fierce opponents of slavery—Pennsylvania Quakers, for example—argued against it from traditionalist premises—and in particular from Christian traditionalist premises. Pro-slavery politicians rejected those traditionalist religious premises as so much irrelevant “moralizing” not in keeping with the then-contemporary needs of the nation. Yet those arguments should be praised, and praised for their Christian traditionalism.

Also to be condemned, of course, are liberal Progressive arguments dependent on scientistic premises about man’s infinite improvability—arguments that justified horrors such as eugenics and that were cornerstones of the ideological superstructure of some of the most oppressive and detestable regimes of the 20th century. Not to speak of liberal Progressivism’s own intimate association with racism—and not only in such august figures as Woodrow Wilson, whom Professor Levinson mentions, but also in pre-Civil War defenses of racial subordination relying on the “new” “race science” of the likes of Arthur de Gobineau. And, though certainly less malign, contemporary American liberal Progressivism has generated serious problems of its own: anomie, alienation, rootlessness, and resentment in the American populace, all of which have helped lay the foundation for social fragmentation and the rise of a nasty populism (conditions that will not disappear from the national stage as quickly as Donald Trump will).

That might suggest to the observer of the American political scene that tradition and traditional arrangements speak in some deep way to basic human nature and the need for stable institutions of enduring wisdom and meaning, all of which seem very much on the defensive in our political and cultural moment. Neither human beings nor organized collections of them can survive without traditions, even if they are often dissatisfied with features of their own traditions. In such ways are communal and national identities constructed, maintained, and transmitted.

But just as there is more to be investigated and learned about American liberalism than what lurks in these discrete historical periods and episodes, there may be more for the scholar of tradition in American law to learn as well. Law and tradition in America as an intellectual phenomenon should be judged by what the full historical record can tell in its vast particulars—including, and perhaps especially, the best of those particulars. Recommending the study of American legal history without a full accounting of those particulars would be, as C.S. Lewis once put it, like recommending the study of a centipede without his irrelevant legs, or of Gothic architecture without all those pointy arches. “Men do mightily wrong themselves when they refuse to be present in all ages and see the beauty of all kingdoms.”[4]

There is also, it must be said, some dizzyingly rapid hopping about at the end of Professor Levinson’s essay—from slavery to sexuality and straight on through nonstop to Washington v. Glucksberg and Town of Greece v. Galloway, neither of which had anything to do with slavery or sexuality. The analogy of race to sex and sexuality has been a facile and remarkably successful one over the past few generations. Yet whatever may be said for that elision, it is hard to know what to make of anti-traditionalist arguments that analogize the tradition of legislative prayer to slavery, or the constitutional method recommended in Glucksberg to slavery, other than that tradition’s deplorable association with slavery has long been a useful bludgeon for devout anti-traditionalists to abuse American traditions across the board.

Slavery has nothing to do with the due process test laid out and defended in Murray’s Lessee or Washington v. Glucksberg. To oppose, as I do, the constitutional protection of physician-assisted suicide on the ground that it is no part of the American constitutional tradition of the “due process of law” to protect such choices is to make no reference whatsoever to slavery. To amalgamate and adjudge all American traditions through the lens of slavery is unfair.

It is also unwise. To denounce American political and legal traditions indiscriminately, simply because they are traditions, is not to guarantee that they will be well replaced. Indeed, it often invites ugly new arrangements. Take, for example, the American tradition of religious freedom, which, as my colleague Mark Movsesian observes, “is deeply influenced by the historical experience of the English Civil War and the Glorious Revolution, and also by the particular understanding of religion that took hold in a colonial, frontier society.” That tradition is in danger of destruction precisely because younger Americans have lost the sense that it is their inheritance to tend and preserve. Exactly what sort of political beast will rush in to fill the void is at the moment unclear. Authoritarianism seems to be a potent contender; but depend upon it that what will come next will be worse than what preceded it.

A final thought: Perhaps what we have actually been debating in these essays is not the role of tradition in law as such, so much as the tradition of traditionalism in it—by which I mean honoring and attending to past practices and behaviors as generally (though not universally) reliable guides for the future of American law and politics.

My thanks again to all three gentlemen for engaging in that debate.

[1] On academic efforts to eradicate the concept of duty from tort law, without much success, see John C.P. Goldberg and Benjamin C. Zipursky, “The Restatement (Third) and the Place of Duty in Negligence Law,” Vanderbilt Law Review 54 (2001), 657.

[2] For one study along these general lines see William Twining, “Talk About Realism,” New York University Law Review 60 (1985), 329.

[3] See, for example, Professor Saikrishna Bangalore Prakash’s Imperial From the Beginning: The Constitution of the Original Executive (Yale University Press, 2015).

[4] Thomas Traherne, Centuries of Meditations (1908).

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