Notes on a New Fusionism

In his Liberty Forum essay, Professor Jesse Merriam identifies an important asymmetry between political and legal conservatism in America. Postwar political conservatism adopted a true fusionist program that blended traditionalist and libertarian streams. That fusion was unstable, contested, and strategic; and the traditionalist spirit in the cocktail was often watered down. Still, its effect on national politics was once potent and perhaps, as Merriam believes, traditionalism was fortified in Election 2016 and will influence the direction of conservative politics. I’m skeptical about that, but he’s the political scientist.

But in the law, there never was a traditionalist-libertarian fusion. True, Justice Antonin Scalia, one of the leading figures of American legal conservatism, had some traditionalist views. Yet to the extent that Scalia’s legacy has been embraced and advanced by legal conservatives, it has been his methodological commitments, not his views. Legal conservatism, Merriam says, is populated and driven by the libertarian Right. It focuses on constitutional theory and the development of originalism to the near exclusion of anything else. And while originalism in its hands has been pitched as politically neutral, its preferences are clear.

I don’t see the originalist landscape quite the same way, but if Merriam’s description of this asymmetry rings true, it’s worth asking what explains it.

Bodies, for one. For traditionalists to influence legal conservatism, there have to be some. The traditionalist wing of political conservatism has a substantial and, if Merriam is right, reinvigorated constituency that can make its voting power felt. But there is only a tiny number of traditionalists in the legal academy (our Center for Law and Religion’s Tradition Project ferreted out nearly every last one), and only a few more in the halls of legal power. Personnel is policy, and without bodies, traditionalists will lack opportunities to bring about their own legal conservative fusion. They are far likelier to be dismissed or ignored even when the subject of study concerns themselves.

Add to this the component of class. Legal conservatism—somewhat unlike political conservatism—is a project undertaken by highly credentialed people, educated at the best law schools, operating at what is conventionally considered the acme of intellectual legal life. Legal conservatism’s focus on originalism and constitutional theory rather than, say, conservative or even libertarian policymaking in local or state government, is understandable. Constitutional theory is an activity carried on by elites and addressed to other elites floating in the empyrean of the legal knowledge class. It is the work of the American legal “front row.”[1] Judges end up on federal courts notwithstanding their traditionalist views because they are among the properly credentialed and politically “reliable” people tossed up by the establishment networks of the Federalist Society.

A related issue is that legal conservatism is in some ways epiphenomenal to legal liberalism—an endogenous reaction within it. Legal conservatism’s adherents are generally drawn from the same law schools, and the same social and cultural class, as the legal liberals who hired them to their faculties and law firms and who hold the real power in American law. Their tastes and habits, particularly on social questions, tend to be formed by the institutions that conferred their degrees. Legal liberals will bear a few conservatives on their faculty—in about the numbers they would tolerate native Andorrans or practicing Bábists—provided they are the right kind of conservatives. And legal liberalism, as I have observed before, is predisposed decidedly against local culture, custom, and the maintenance of the past. This is all fairly stony soil for the cultivation of traditionalist ideas.

What to Do?

What then is that exotic, hothouse flower—the tradition-minded legal scholar—to do? (I set to the side the perfectly respectable possibility of taking up some other more useful pursuit, within the legal academy or outside it.)

One option is critique, which might take at least half-a-page from the largely defunct but nevertheless fascinating Critical Legal Studies school of the radical Left. There is, in fact, a burgeoning legal literature that can broadly be described as “Right critical.” Merriam lists some that could be classified as constructive or perhaps reconstructive critique—work that unearths an allegedly lost or abandoned history of American political and legal thought, laments its decline, and argues for its recovery. There are libertarian flavors of this sort of project in “epistemological restoration,” too. Another variety of Right critique is more skeptical and diagnostic, less interested in rediscovering the wisdom of ages past and more in description and analysis from a clinical distance.[2]

The trouble, however, is that critique is for losers. (I mean that admiringly and with affection.[3]) Critique is for those who are on the outside looking in and who suspect with some justice that they have little chance of getting there.

Another, and more positive, option would be to attempt a new fusion on the ground now occupied by legal conservatism: constitutional interpretation. But I am getting ahead of myself. Before considering what such a fusion might look like, let alone whether it would be feasible or desirable, we need to know what traditionalism in constitutional interpretation might be.

Let me offer a thumbnail sketch of what I’ve described at length elsewhere, in a new paper, “The Traditions of American Constitutional Law.” Traditionalist interpretation takes political and cultural practices of long and concentrated duration as constituting the presumptive meaning of constitutional text. Its focus on the concrete practices of the American people—political and cultural—proceeds from the view that actions, customs, and patterns of behavior can sometimes speak louder than words and abstract principles.

Traditionalism takes the endurance of a practice before, during, and after ratification of a given constitutional provision to constitute its meaning. For example, for the traditionalist, the fact that the political practice of legislative prayer is ancient, continuous, and concentrated in American national and local government indicates that it is consistent with the Constitution’s Establishment Clause. But the force of practices as ingredients of meaning is presumptive only; it may be overcome by directly conflicting constitutional text or a very powerful moral principle that defeats the tradition. The longer paper investigates and documents the pervasiveness of traditionalist interpretation across the Supreme Court’s constitutional doctrine. Once one looks, one sees it everywhere as the Court’s modus operandi in many areas.

As for its political valences, while traditionalism has them (as does every constitutional theory, insistent abjurations notwithstanding), it’s complicated. Certainly, traditionalism can be conservative, though it need not be. Traditionalism is a defensive interpretive method against what abstract principle in the hands of elite actors has wrought on the Constitution. Traditionalism is motivated, at least in part, by the fear of intolerance, of the corrosion of lived experience, and of the distortion of text to mirror a particular class of contemporary moral and political views, that can be unleashed by constitutional interpretation dependent on abstract principle. It is a method for those who cherish embedded political and cultural ways of doing and being. It is preservative and custodial, so it might not appeal to some “movement conservatives” who might think it quaint, soft, or overly defensive. And while it might perhaps interest some conservatives, it might also appeal to non-conservative populists worried about the displacement of traditional communities and ways of life in “back row” America.

A New Fusion?

“Fusion” is a political term of art. To speak of a new fusion, therefore, is already to dwell on the political, rather than the strictly scholarly, features of constitutional theory. A fully-fledged scholarly development of traditionalism should be aimed at an audience of scholars, not conservatives. Nevertheless, scholarly projects have political implications, and it is not improper or out of bounds to think them through.

From that perspective, the prospects for a new legal fusionism must account for the structural asymmetries between political and legal conservatism well-observed by Merriam. Those asymmetries would doom any new fusion if it were modeled on postwar political conservative fusionism. There is no sufficiently strong demographic constituency of traditionalists to make credible claims as an independent leg of the legal conservative stool.

Perhaps instead the new legal fusion might be conceptual, rather than demographic, operating as it does on the terrain of constitutional interpretation. Traditionalism, on this view, would not be an alternative to originalism, let alone seek to displace it. Instead, the aim would be to integrate or fuse traditionalism with or from within some existing varieties of originalism. Several developments make this possibility worth considering.

First, originalism has been very successful as what Professor Jamal Greene has called an artifact of “political commerce,” a political consumable that the public regards as authoritative whenever it gets a hankering for constitutional law.[4] The so-called “positive turn” in originalism and the description of originalism as “our law” are not unrelated theoretical developments that make use of some of the same sociological facts about originalism.[5] But at least some of those social facts, such as what the Supreme Court says and does (or says that it is doing), are as much traditionalist as originalist. Traditionalism has, in some doctrinal pockets, a strong claim to being “our law” in this sense. Traditionalist fusion with originalism might therefore draw strength from and contribute to originalism’s political and sociological power as a positive legal matter.

Second, much of the historical evidence supporting originalism also supports traditionalism. Where there are differences, they tend to be ones of weight—how heavily to count historical practices before, during, and (especially) after textual ratification, how proximate the practice must be to ratification, and so on. There are also useful similarities and divergences between traditionalism and theories of the “liquidation” of meaning, the latter of which have been explored by originalist scholars.[6] The differences between these interpretive methods are real, but they may reflect different emphases, degrees, and moods, as much as deep substantive differences.

Originalism, as Professor Michael Greve has observed, was initially a political response to Warren Court decisions, many of which are now more than 60 years old and part of the common law of the Constitution.[7] Accepting traditionalist interpretation would not require originalists to temper their methodological or substantive opposition to those decisions (supposing they remain opposed to them), since what is of interest for traditionalists is not precedents but political and cultural practices not inconsistent with original meaning. Traditionalists are textualists who interpret text concretely in the light of enduring past practice.

Third, recent changes in the Court’s composition suggest that the time may be auspicious for a new fusion. Justice Neil Gorsuch and Justice Brett Kavanaugh have both indicated, in their decisions and elsewhere, that traditionalism informs their respective views of constitutional interpretation in areas including the First Amendment, the Second Amendment, and the Due Process Clause of the Fourteenth Amendment.[8] Justice Samuel Alito has also been consistently receptive to traditionalist argument, as the plurality opinion in The American Legion v. American Humanist Association (the recent Maryland “Peace Cross” case) suggests. Indeed, no fewer than five justices expressed support in that admittedly perplexing case for a new approach to Establishment Clause issues that emphasizes history and tradition to decide whether specific practices are constitutional, though there was disagreement about the details.

American Legion was the second in as many Supreme Court Establishment Clause cases involving related issues that indicated strong support for some type of traditionalist methodology. Between it and Town of Greece v. Galloway (2014), a new method may be emerging. And there is a growing constituency on the Supreme Court that sees traditionalist interpretation as authoritative in other doctrinal areas as well.

Fourth, it is a sign of originalism’s intellectual vitality that there is lively variety and debate within the family. Professor John McGinnis has described an originalist “fracture” but these developments could also reflect theoretical vibrancy and ferment, and here my views may differ from Professor Merriam’s. There are positivist originalists and natural law originalists; construction-zoners and construction-zone-deniers; stare decisis compatibilists and non-compatibilists; judicial restraintists and judicial engagers; and even heretical intentionalists who  still hold out against the original meaning orthodoxy. And I’ve only scratched the surface of the intra-theoretical divisions.

Of particular relevance for traditionalism, as Professor Lawrence B. Solum has explained, is that certain varieties of originalism accept historical practice as at least some evidence of meaning where there is textual ambiguity and where the practice is proximate in time to the ratification of a particular provision.[9] Other versions of originalism reject historical practice altogether as the irrelevant “expected application” of the ratifiers. The extraordinary variety within originalism and the emerging areas of at least partial intersection with traditionalism suggest that it might be possible to do a little fusionist business, if not with all conceivable originalist approaches, then at least with some.

Working Itself Pure?

Doubtless, however, there would be many obstacles to any new legal fusionism along these lines. Some purist originalists might reject it out of hand for theoretical, political, or other reasons. Others may believe that far from fracturing, originalism is instead steadily pruning away outmoded varieties—working itself pure—and that to engage with traditionalism would represent a regression. And still others might say that a new fusion simply isn’t needed politically at this moment of originalism’s triumph.

These are cogent objections, but they are also typical of any fusionist undertaking that threatens or promises (depending on one’s perspective) to adulterate a theory—whether of law or politics—in its pristine form. Fusionism works on a more pragmatic ground, on a political premise of compromise: do ut des. I give a little something, so that you may give a little something in return, and together we both may benefit. In future work, I will examine the relationship of these theories to one another more systematically.[10] For the moment, it may be enough to observe that one of the virtues of Professor Merriam’s essay is to explain why legal conservative fusionism has never yet been tried. Perhaps its moment has arrived.

[1] See Chris Arnade, Dignity: Seeking Respect in Back Row America (2019).

[2] My colleague, Mark Movsesian, and I have colonized (some might say, infiltrated) the latest issue of the Harvard Journal of Law and Public Policy with this sort of work. But the godfather of the skeptical Right-critical style in law is undoubtedly Steven Smith.

[3] In an analogous way that “legitimacy is for losers.” See Tara Leigh Grove, “The Supreme Court’s Legitimacy Dilemma,” forthcoming in the Harvard Law Review.

[4] Jamal Greene, “Selling Originalism,” Georgetown Law Journal 97 (2009), 657, 660. See also the public polling work of Donald Drakeman in his article, “What’s the Point of Originalism?”, Harvard Journal of Law and Public Policy 37 (2014), 1124.

[5] See, for example, William Baude, “Is Originalism Our Law?”, Columbia Law Review 115 (2015), 2349; and William Baude and Stephen E. Sachs, “Grounding Originalism,” Northwestern University Law Review   113 (2019), 1455.

[6] See, for example, William Baude, “Constitutional Liquidation,” Stanford Law Review 71 (2019), 1.

[7] See, for example, David A. Strauss, “Common Law Constitutional Interpretation,” University of Chicago Law Review 63 (1996), 877.

[8] For discussion of Gorsuch, see Christopher R. Green, “Justice Gorsuch and Moral Reality, Alabama Law Review 70 (2019), 635; Brett M. Kavanaugh, “Two Challenges for the Judge as Umpire,” Notre Dame Law Review 92 (2017), 1907, 1919; and Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) (Kavanaugh, J., dissenting).

[9] See Lawrence B. Solum, “Themes from Fallon on Constitutional Theory,” forthcoming.

[10] Marc O. DeGirolami, “First Amendment Traditionalism,” forthcoming in the Washington University Law Review.