The Courts and Tradition: A Begrudging Respect

Marc DeGirolami’s Liberty Forum essay discusses two contexts in which tradition might influence American law: common law and constitutional law. He suggests that tradition is still robust in the former, less so in the latter.

With regard to common law, I think that he’s right that custom underlies a good deal of the law of contracts, torts, property, and more. On the other hand, it strikes me that American common law as interpreted by the judiciary has been far less respectful of precedent (and therefore to some extent, of tradition) than has the common law in other countries.

Years ago, I had occasion to research tort law in the United Kingdom and Australia. I was surprised to find that courts in those countries routinely cited decades-old precedents, even from the 19th century, as good law. With the exception of a few famous cases, it’s very unusual to see American courts cite cases from so long ago, largely because modern American judges’ understanding of their role is far different from the understanding that 19th century judges had of theirs.

Since the Progressive era, the idea of common law as an autonomous discipline that should largely evolve organically from precedent has been under attack from legal realism and its successors, including critical legal studies and law and economics. Consider the case of tort law.

DeGirolami is right that community standards and custom continue to play a large role in tort law. But it’s also true that external considerations, such as income redistribution, economic efficiency, risk-spreading, the functioning of insurance markets, finding a “deep pocket” to cover individual losses, and providing incentives for harm prevention have played a significant role in tort scholarship and pedagogy for decades, and in turn have influenced the judicial decisions that govern what juries in civil cases are permitted to do.

Some areas of tort law have undergone radical changes. Products liability, for example, has morphed from a very discrete and limited area of law based on (at least implicit) warranty, with contractual duty a primary consideration, to a broad, implicit regulatory system based on perceived economic and social necessity.

To take one extreme but telling example, federal Judge Alvin Hellerstein allowed the heirs of the victims of the attacks of September 11, 2001 to sue Boeing for not providing more secure cockpit doors, even though Boeing made the doors to the airlines’ specification. It was hard to see how Boeing had any duty to the airlines, much less airline passengers or occupants of the World Trade Center, beyond that.[1] Judge Hellerstein elided the issue of duty entirely, instead focusing on forseeability. Even there, the judge took the liberty of concluding that the 9/11 attacks may have been foreseeable, even though no one had ever used airplanes as a weapon as they did on 9/11.

Judge Hellerstein also watered down the traditional understanding of proximate cause, rejecting Boeing’s claim that its product was not the proximate cause of the injury because the illegal actions of the terrorists were a clear superseding cause. Moreover, given that standard procedure recommended by the government before 9/11 was to cooperate with hijackers lest they start executing hostages, a reinforced door would have made no difference, so it’s hard to see how Boeing could bear any legal responsibility for the murders. But the felt need to compensate victims of 9/11 took precedence over any semblance of obedience to traditional tort principles. A similar dynamic took hold in the litigation over the first World Trade Center bombing, with a New York appellate court upholding a jury verdict finding the Port Authority of New York and New Jersey 68 percent responsible for the 1993 bombing, remarkably leaving the terrorists themselves only 32 percent responsible.[2]

I’m sure similar stories could be told for areas of jurisprudence outside my expertise. For example, the concept of mens rea has gradually ceased to be a significant barrier to the massive expansion of “white collar” criminal law. Given major changes to the content of American law, and the shifting ideological underpinnings of that law, it’s not surprising that courts rarely cite cases from bygone eras.

When it comes to American constitutional law, by the late 19th century there was widespread agreement on two principles: that when interpreting the Fourteenth Amendment, the Supreme Court’s role was to protect those natural rights that had been crucial to the development of Anglo-American liberty; and that the United States had an unwritten Constitution based on traditional principles, much like Great Britain’s, that informed constitutional analysis.[3]

For the most part, the Supreme Court justices of the pre-New Deal period did not engage in a jurisprudence of originalism that would be recognizable to modern advocates of originalism. Rather than focusing on the original public meaning of discrete portions of the text, they instead interpreted the Constitution in light of the classical liberal values they believed were embedded in America’s written and unwritten constitutions. They sought to protect those liberties that underpinned the development of Anglo-American liberty. Their Progressive critics recognized this as a form of originalism, and accused them of allowing the dead hand of the past to rule the present. The critics instead advocated a “living Constitution” that would privilege social science and the perceived needs of modernity over the protection of traditional American liberties.[4]

The old Court permitted the government to impinge on recognized liberties when the government was acting within the contours of the so-called police power. Importantly, that power included not simply the protection of public health and safety, but also the protection of public morals, as defined by Anglo-American tradition. For example, despite the Court’s endorsement of liberty of contract, it had no difficulty unanimously upholding a law that restricted work on Sundays.[5]

The Supreme Court’s concern for protecting natural rights as understood in the context of Anglo-American history did not survive the New Deal and the triumph of legal progressivism. That triumph was so complete that for a long time the only significant debate in American constitutionalism was in effect between old Progressives who wanted to severely limit judicial review, and new Progressives who agreed that judicial review should generally be limited, but who sought to carve out certain preferred freedoms for special judicial protection. These freedoms were not defined by reference to tradition or history, but by the need to ensure that the modern special-interest state had democratic legitimacy. As the American state-building project continued, it was considered crucial to ensure that freedom of speech allowed for public debate and input, that criminal suspects received federal procedural protections, and that minorities such as African Americans did not become a permanent underclass, with their status imposed by government.

Early 20th century Progressives were generally indifferent, at best, to minority rights, but once modern liberals became enamored of them, it served to undermine any lingering fealty to tradition. After all, what was more traditional in American society, especially in the South, than discrimination against African Americans? And indeed, many apologists for Jim Crow pointed to Southern tradition, and to decades-old judicial precedents such as Plessy v. Ferguson (1896), to defend state-imposed segregation. If ever a case was destined to undermine the power of tradition in American constitutional law, Brown v. Board of Education (1954) was it.

A decade after Brown, the Supreme Court invalidated all 50 states’ systems for allocating districts in their legislative chambers in favor of requiring equal population districts under the banner of “one person, one vote.”[6] Some states argued, to no avail, that their systems could not be unconstitutional because they mimicked the way the Constitution sets up the federal House and Senate, with the former based on population, and the latter based on geography. In other words, these states had about as strong an argument from constitutional tradition as one could imagine, but that failed to impress the majority. The Court was more concerned about a combination of “one person one vote” egalitarianism and a felt need to reduce the power of conservative rural forces in the states to stand in the way of the national Progressive agenda.

Ironically, perhaps, the majority tried to appeal to tradition in its redistricting decisions. But citing the Declaration of Independence, Emancipation Proclamation, and Fourteenth and Nineteenth Amendments was hardly going to persuade skeptics that the American tradition demanded the sudden reapportionment of every state legislature within the parameters of “one-person, one-vote.”

Tradition nevertheless was not entirely absent from judicial decisions. For example, DeGirolami points out that Justice Frankfurter used tradition as a rationale for expanding the scope of executive power, adopting a modern Progressive version of unwritten constitutionalism. Surprisingly given his Progressive background, Frankfurter also argued that the Court should determine what rights are protected by the Fourteenth Amendment by reference to American natural law tradition.[7] The second Justice Harlan consistently advocated a tradition-based common law methodology in constitutional decisionmaking. The majority in Griswold v. Connecticut (1965) appealed to the traditional sanctity of the marital bedroom. Over dissents, the Court once again upheld Sunday closing laws, this time against a First Amendment challenge, even when the challengers were Orthodox Jews who were unable to engage in commerce on Saturdays.[8]

The Court’s respect for civic religion only went so far, however. In one of its most controversial (and widely ignored) decisions, it banned school prayer in public schools, showing distaste for expressions of religion that didn’t match the liberal anti-establishmentarian Protestantism it  thought to be the standard American creed.[9] And the Court also continued to find tradition an obstacle to racial equality. By upholding busing orders to encourage public school integration, the Court ran smack into the longstanding and well-loved American tradition of neighborhood public schools (and helped elect Richard Nixon to the presidency by an overwhelming margin in 1972).

Perhaps the most radical change with regard to constitutional law and tradition is the Supreme Court’s refusal to consider morals legislation to be within the states’ inherent powers (the justices rarely speak of “police powers” anymore). This became apparent in the Court’s First Amendment opinions on indecency, and in its decisions on reproductive rights. In those cases, however, the Court was enforcing “fundamental rights,” infringement of which could only be justified by narrowly tailored legislation protecting a “compelling” government interest.

More recently, the Court has protected the right to engage in homosexual sex.[10] Justice Kennedy, for the Court, argued that bans on such sex, despite a moral provenance dating back to the Hebrew Bible, and despite longstanding American tradition banning sexual acts considered by the public to be immoral, had no rational basis, much less served a compelling interest. Indeed, as DeGirolami points out, Justice Kennedy has consistently suggested that opposition to gay rights, even if on deeply held religious or philosophical grounds that were almost universally accepted not that long ago, amounts to mere bigotry that receives no weight, or perhaps receives negative weight, in judicial analysis.[11]

In last year’s same-sex marriage decision, Kennedy rejected appeals to the traditional definition of marriage in favor of the rather novel constitutional principle of “equal dignity.” It’s worth noting that by putting the issue in such terms, Kennedy precluded any potential concession to tradition, such as requiring states to provide the practical equivalent of marriage for same-sex couples without requiring them to call same-sex partnerships “marriages.”

Some of the justices, meanwhile, have abandoned American (or Anglo-American) tradition as the touchstone for interpreting the scope of constitutional rights, instead often preferring to appeal to international norms, at least when those international norms (as with the death penalty) tend to gibe with their preferred outcomes. The same justices seem to feel constrained to appeal to stare decisis and not international norms when it comes to abortion rights, given that Roe v. Wade created among the most liberal abortion regimes in the Western world.

Meanwhile, the modern originalism of conservatives such as Justice Clarence Thomas and the late Justice Antonin Scalia is an appeal to history, but not necessarily to tradition. “Original public meaning” originalism is approximately 30 years old, and has never been consistently adopted by a majority. Nor is modern originalism consistently applied. Justice Scalia called himself a “faint-hearted” originalist,[12] preferring in some cases to rely on stare decisis, or traditionalism, or an aversion to judicial activism, depending on circumstances.

DeGirolami points to Washington v. Glucksberg (1997) as an example of the conservative justices’ appeal to tradition, but I can’t quite agree. Glucksberg sought to limit the scope of unenumerated constitutional rights to those “deeply rooted” in American history. And yet, as a practical matter, the appeal is not really to tradition, but to the adoption of a methodology that allows Griswold and Loving v. Virginia (1967), recognizing the right to marital privacy and to marry, respectively, to survive, while giving the Court leeway to overturn abortion rights, refuse to recognize same-sex marriage, and, more generally, refuse to recognize any new unenumerated rights.

The conservatives’ hostility to unenumerated rights may be an understandable, and perhaps even a desirable, reaction to the past and potential future excesses of the Supreme Court, and it represents a longstanding strain of American legal thought that prefers a more quiescent judiciary.[13] This hostility is, however, directly descended from explicitly anti-tradition Progressive critiques of Lochner v. New York (1905) and its progeny.[14] One would be hard-pressed to describe the hostility as “traditional,” therefore, unless we think of tradition only in the context of the modern constitutional regime that began in approximately 1937, and consider Oliver Wendell Holmes to be a better exemplar of a “traditional” Supreme Court justice than were Stephen Field, Rufus Peckham, or George Sutherland—a dubious notion.

Indeed, the Ninth Amendment arguably dates the tradition of explicit constitutional recognition of unenumerated rights back to 1791! That Amendment, even if not judicially enforceable, seems to complicate any tradition-based argument that, as a matter of judicial construction, the  enforcement of unenumerated rights should be strongly disfavored.

All that said, the extent to which using tradition in either the common-law or constitutional-law context is desirable is beyond the scope of this essay. Clearly some traditions, like Jim Crow, were well worth discarding, while others, such as the natural rights basis for American constitutionalism, had real merit. For present purposes, it’s sufficient to point out that DeGirolami’s essay is consistent with one American tradition: the tradition of debating the role of tradition in American law.

[1] In re September 11 Litigation, 280 F.Supp.2d 279 (S.D.N.Y. 2003).

[2] Nash v. Port Auth. of N.Y. & N.J., 856 N.Y.S.2d 583, 586-88 (App. Div. 2008). This opinion was later reversed on other grounds.

[3] See David E. Bernstein, “Lochner Era Revisionism, Revised: Lochner and the Origins of Fundamental Rights Constitutionalism,” 82:1 Georgetown Law Journal (2003), 1.

[4] See Howard Lee McBain, The Living Constitution (Workers’ Education Bureau Press, 1927).

[5] Petit v. Minnesota, 177 U.S. 164 (1900).

[6] Reynolds v. Sims, 377 U.S. 533 (1964).

[7] Adamson v. California, 332 U.S. 46 (1947).

[8] Braunfeld v. Brown, 366 U.S. 599 (1961).

[9] Engel v. Vitale, 370 U.S. 421 (1962).

[10] Lawrence v. Texas, 539 U.S. 558 (2003).

[11] Obergefell v. Hodges, 576 U.S. ___ (2015).

[12] See Antonin Scalia, “Originalism: The Lesser Evil,” University of Cincinnati Law Review 57 (1989), 849, 854.

[13] See James Bradley Thayer, “The Origin and Scope of the American Doctrine of Constitutional Law,” Harvard Law Review 7 (1893), 129.

[14] See David E. Bernstein, Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform (University of Chicago Press, 2011), Chapter 7.

Reader Discussion

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on August 08, 2016 at 15:32:01 pm

"To take one extreme but telling example, federal Judge Alvin Hellerstein allowed the heirs of the victims of the attacks of September 11, 2001 to sue Boeing for not providing more secure cockpit doors, even though Boeing made the doors to the airlines’ specification. It was hard to see how Boeing had any duty to the airlines, much less airline passengers or occupants of the World Trade Center, beyond that.[1] Judge Hellerstein elided the issue of duty entirely, instead focusing on forseeability. Even there, the judge took the liberty of concluding that the 9/11 attacks may have been foreseeable, even though no one had ever used airplanes as a weapon as they did on 9/11. "

With all due respect, this is an extreme example because no reasonable person could have predicted that terrorists would board an airplane and use that airplane as a weapon of mass destruction.

The Fourteenth Amendment, like the Fifth, applies to persons, and regardless of one's ancestry or skin tone, speciation occurs at the moment of conception, thus every son or daughter of a human person can only be, in essence, a human person.

What separates Marriage from every other form of Loving relationship, is the ability and desire to exist in relationship as husband and wife. The marital act is Life-affirming and Life-sustaining and can only be consummated between a man and woman united in marriage as husband and wife. Marriage in essence cannot be, existing in relationship as husbund and wife, and not existing in relationship as husband and wife, simultaneously. Once you remove the necessary elements of a marriage contract, which is the ability and desire to exist in relationship as husband and wife, thus invalidating the validity of a valid marriage, while promoting marriage fraud and adultery, any relationship can be defined as marriage if one so desires. Our Constitution does not proclaim the equality of sexual acts and sexual relationships because to condone the engaging in or affirmation of demeaning sexual acts of any nature, including between a man and woman, united in marriage as husband and wife, would be a violation of respect for the inherent Dignity of all persons.

Intimate choices may define one's beliefs on sexual morality, but they do not define personhood.

Men and women are designed in such a way that it is not possible to engage in same-sex sexual acts without demeaning our inherent Dignity as beloved sons and daughters.

Why not tell those men and women who have developed a same-sex sexual attraction the truth? It is because we Love you, and respect your Dignity as a beloved son or daughter, that we cannot condone the engaging in or affirmation of any act, including any sexual act that demeans your inherent Dignity as a beloved son or daughter. The desire to engage in a demeaning act of any nature, does not change the nature of the act. We Love you, and because we Love you, we desire that you will always be treated with, and will always treat others with Dignity and respect in private as well as in public. We will not tolerate the engaging in or condoning of sexual behavior that does not reflect the upmost respect for the human person.

The fact that every son or daughter of a human person is entitled to an equal education should preclude state governments from only using property taxes to fund schools, as it is only logical to assume that in lower income areas the schools will receive less funding and thus may encounter a shortage of funding for education purposes.

Religious persons are part of the public, too. For example, since the purpose of education is to form good and educated citizens, and there is nothing in the Catholic Faith that precludes one from being a good and educated citizen, the Constitution does not preclude Catholic Schools from receiving funding.

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Nancy D.
on August 08, 2016 at 17:09:39 pm

Wow! What a lot to chew on, let alone digest. Perhaps for someone like Roberto Unger, not so much.

While there is much more that can be said on many of Professor Bernstein's points (and may be), his essay adds a third to the "two contexts in which tradition might influence American law: common law and constitutional law;" that is, the ongoing adaptation of our legal system as a means to ends.

One may also get a sense that "tradition" is used or referred to with more than one intention. That is certainly not a criticism of the articulation and maybe an erroneous perception.

The evolution of Tort law, with its development into "absolute liability without fault," provides a marvelous starting point for comprehending the changes in the modes of determinations of obligations (Duties) in the legal system of our social order.

Social orders take their form from the recognition, acceptance and performance of obligations of their members in their relationships with one another and their surroundings. Those obligations are the concomitants to the "rights" that exist in that social order. Every right of any member requires a concomitant obligation on the part of other members in the conduct of their relationships, determined by the circumstances in which they occur.

Those obligations in a social order come to be recognized and accepted out of experience and adjustments of human relationships. When established, they are traditions of duties and obligations. To break with that source of duties and responsibilities by departing from its traditions, requires the imposition of obligations and duties by fiat (coercion) in order to establish "new" rights, such as the right to reparations and repair of harm.

This substitution of the basis for obligations is actually part of the process of replacing spontaneous development with social engineering for particular political, social or economic ends. To attempt to create new or different obligations in a society at the cost of termination of those developed from traditional sources destroys "natural" rights and substitutes constructed relationships.

Our legal system is departing from its more than 500 years of "finding the law" of those "traditionally determined" obligations in all their varying circumstances; now veering into determining what the obligations "ought to be" for a presumed desirable social order. The rising conflicts are enormous.

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R Richard Schweitzer
on August 09, 2016 at 11:27:30 am

"The rising conflicts are enormous."

Although it is true that this moment in Time is the same moment in Time, on every point of Space in God's Universe, this does not change the fact that once you remove God from the equation, and we no longer recognize that our unalienable Rights can only be endowed to us from The True God, anything can become permissible, as our unalienable Rights are no longer unalienable.

Salvational History is the key to understanding man in relationship to God, for man is not an end in himself, nor is man a means to an end, man was created to live in Loving relationship in communion with The Communion of Perfect Love, The Most Holy And Undivided Blessed Trinity, Who Willed us worthy of Redemption.

Conflict arises when we deny that God Is The Author of Love, of Life, and of Marriage.

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Nancy D.
on August 09, 2016 at 12:04:28 pm

Off thread and not in the usual line of such comments:

Does this anthropomorphic deity establish obligations concomitant with those "unalienable" rights?

If so, what are those obligations?

Why should these considerations impinge on the matters under comment?

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R Richard Schweitzer
on August 09, 2016 at 21:56:19 pm


"Let Us Make man in Our Image." - The Blessed Trinity

With all due respect, perhaps this is off thread, but it is not off topic.
Our Founding Father's recognized God to be, The Most Holy And Undivided Blessed Trinity, thus it is no mystery that at the heart of Liberty is the recognition that because it Is God Who Has Endowed us with our unalienable Rights, the purpose of our unalienable Rights are what God intended. To suggest that "at the heart of liberty is the right to define one's own concept of existence, of meaning, and of the mystery of human life", would be a denial of both the spirit of our Constitution and The Spirit of The Law

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Nancy D.

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.