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The Unforgettable Fire: Tradition and the Shape of the Law

What is the relationship of law and tradition? Tradition, either as a proposition of independent legal value or a register in which to discuss and explain the persistence of our legal arrangements, has very little traction today. In law, as in many other areas of contemporary American life, tradition as a normatively powerful idea is wildly unfashionable—even disreputable.

When tradition’s influence on law is considered, responses ordinarily fall somewhere along a predictably confined range—from dismissal and disdain to something like revulsion. A fairly recent Slate article on Khloé Kardashian’s checkered and rather perplexing spiritual practices concisely sums up the general view: “What’s more American than taking a tradition, tossing out what you don’t like, and remaking it in your own image?”

Deep calls unto deep: writing more than a century earlier, Oliver Wendell Holmes, Jr. seems to have been of like mind when he thundered that “it is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.”[1] These words by one of the most influential of American jurists suggest that there has long been—perhaps there has always been—something of a reluctance (to put it gently) in the American legal intellectual to admit the connection between law and tradition. Arguments that depend upon tradition are widely thought to offer nothing against, or even in conversation with, the predominant intellectual legal frameworks—those inclined toward progress, efficiency, and technology, for example.

And yet the repudiation of tradition as a modality through which to think about and evaluate law is much more deeply ingrained today than in prior periods. One is unlikely, for example, to hear from any contemporary American Bar Association functionary or legal academic anything like what one once heard from ABA founder and Yale Law School Professor Edward J. Phelps. Phelps gave a speech in 1879 on the legacy of Chief Justice John Marshall and constitutional law in which he observed:

It is idle to say that our sky is free from clouds. It is useless to deny that wise and thoughtful men entertain grave doubts about the future. The period of experiment has not yet passed, or rather has been again renewed. The stability of our system of government is not yet assured. The demagogue and the caucus still threaten the Nation’s life. But we shall not despair. . . .  Let us join hands in a fraternal and unbroken clasp, to maintain the grand and noble traditions of our inheritance, and to stand fast by the ark of our covenant.[2]

Reliance on the justificatory support of tradition is in fact of long lineage in Anglo-American law. “Erravimus cum patribus”: such was Lord Coke’s response when summoned before the Privy Council to answer various frivolous charges in his ongoing disputes with King James I over his conduct as Chief Justice of the King’s Bench. If there was error, “we have erred with the fathers.” There was a time when this was thought answer enough.

Indeed, American law—and English law before it—historically has depended upon tradition as a vital source of stability and justification. Usages, dispositions, and moral views that endured from one generation to the next were presumed valid and true. There was an implicit judgment of value in these continuities: the wisdom contained in tradition would not have endured, people believed, if it did not advance basic human well-being. True, traditions could change or fall out of use and people did not defer to the past mindlessly. But the past had definite claims; one could not cast it aside as though it had nothing to offer to, or require from, the present.

What complicates the story of tradition’s contemporary decline is that in some ways, tradition as a source of meaning, justification, and even identity in law persists. The common law method, for example, in which law develops gradually and internally from precedent, depends upon traditional instincts and traditional processes. Lawyers and judges cannot ignore the cases that have come before; they must fashion arguments in ways that cohere with earlier judgments. They must incorporate the past into the present. They must respect the American legal tradition—do right by it as they resolve cases.

This is true even of legal academics. An old teacher of mine used to say that the successful academic writer is one who knows not to “walk into the furniture.” A paper that suggests a new approach to or insight about a legal problem must negotiate and harmonize past precedents, ideas, and arguments; it must work out what is new against a backdrop of what is old. Without demonstrated knowledge and acknowledgment of the past, the paper is likely to be thought ignorant, clumsy, and unsophisticated.

Much of this concerns processes, but tradition sometimes influences the substance of law as well. In American constitutional law, for example, practices that have long endured often enjoy a presumptive validity. And law generally reflects, protects, and promotes the traditions of a society. In the West, these traditions include religious understandings that have endured over millennia.

But many of these ideas are now deeply contested. Judges, lawyers, and scholars often challenge the relevance of tradition in law. Deference to traditional customs and values is pressed by almost nobody in law. Indeed, the U.S. Supreme Court sometimes denigrates moral traditions as irrational or even hateful. A society and culture that prizes the individual over the collective and change over continuity often discounts the wisdom of the past as obscurantist or worse. Religious communities, institutions, and citizens who wish to honor traditional understandings confront mounting pressure to change or risk punishment of various kinds. Tradition is more and more not merely disvalued but incapable even of being understood as something anyone could or might want to value. As the sociologist Edward Shils once put it: “The notion of doing well what has been done before is not rejected; it is not thought of.”[3]

This cluster of ideas and contentions about tradition—a concept simultaneously so foundational for the process and substance of American law and yet so controversial—cries out for further reflection and study under a cooler light than it generally receives. I suggest below two areas of particular inquiry, though there are many others that might be fruitfully pursued.

What Is Tradition, and What Is Its Role in Law?

A first issue is definitional and conceptual. What should we understand by the term “tradition” and what do we mean by tradition’s role in law?

At the most basic level, tradition involves a particular attitude or disposition toward the past. The past is not simply a serial aggregation of occurrences to be investigated, sorted, and studied. The past is somehow normatively “charged” and it is transmitted in order to regenerate that charge. When I teach a class, I dress in a coat and tie. If I did so simply  without giving it any thought, this behavior could be called habitual. Perhaps others before me and after me have worn, and will wear, a coat and tie out of habit. This is not enough for the choice to be traditional. Habits, as Rebecca Brown has observed, are simply preferences without judgment for the sake of “predictability and continuity.”[4]

The choice is traditional only if it evinces a social awareness of continuity with the past and is pursued intentionally, because of some normative power within the longstanding practice (because dressing with a coat and tie is neat, or because it is professional, or because it is elegant, or because predecessors whom I admire dressed in this fashion, or because it elicits or may elicit respect for authority on the part of students, and so on) I dress in this way intentionally to retransmit the past to the present, believing as I do that there is value in the choices of the past and in their perpetuation. This self-conscious and normative quality is a key component of tradition.

It is sometimes claimed that if there are reasons for a decision, then the decision cannot be traditional: the decision is grounded either in tradition or in reason; it cannot be both. I have argued before that this position is mistaken. Tradition and reason coexist; indeed, to adopt a traditional view is to find value in the past and value in its perpetuation—in its transmission to the present. But the reason in tradition is often, as F.A. Hayek once put it in his essay, “Freedom, Reason, and Tradition” (1958), the reason of the unscientifically demonstrated. It is the reason of custom and experience:

That we ought not to believe anything which has been shown to be false does not mean that we ought to believe only what has been demonstrated to be true or at least useful. There are strong grounds why any person who wants to live and act successfully in society must accept many common beliefs, though these reasons may have little to do with their demonstrable truth.[5]

Likewise, the traditional view in law does not conceive the legal past as merely the temporally linear sequence of constitutions, statutes, cases, or all of the other raw materials of law, even if continuities might be found within and among them. Rather, a lawyer or a judge approaching the law traditionally will do so with an intention to carry on some past way of thinking or reasoning about the law into the present. Whether or not a court uses the word “tradition” in describing what it is doing, if it is judging traditionally, it will be 1) aware of the continuity of its decision with past authority (legal or social), and 2) intentional about maintaining, transmitting, and re-cementing that past authority (legal or social) in its own decision.

Common law reasoning—which is, even still, the staple of state and local law—thus often produces traditionalist judicial opinions. The common law method that still grounds so much of the law depends upon intentional and self-conscious transmissions of the past into the present. The rule of custom—of past practices and manners of social comportment that have long been accepted, perhaps even for a sufficient length of time that their origins cannot be recollected—in the community sits only just beneath the surface of the law of contracts, property, torts, criminal law, and many other fields, even as many of these areas are now governed in part by statutes.

Consider that most ordinary case in tort law, the negligence action. One might think that because a tortfeasor and a victim often have no relationship to one another, social custom would play little if any role in a negligence action. When it comes to contract law or property law—areas in which human relationships and patterns of behavior have been established—the relevance of custom is obvious, but much less so with the tort of negligence, which in many cases involves strangers. And yet it is the community’s general custom that sets critical tort benchmarks like the standard of care to be exercised. When judges apply that standard to new negligence actions, they re-entrench the behavioral and cultural custom as the legal baseline. Tortfeasors who do not behave customarily are liable to their victims; those who do are not.[6]

Are such decisions and legal outcomes traditional? I should think so, even if few of the participants in the resolution of a tort action (judges, jurors, litigants, and so on) are entirely self-aware of the normatively charged transmission of past to present that each case represents and perpetuates.

Tradition and the Federal Constitution

What of constitutional law and the Supreme Court? There is, of course, the doctrine of stare decisis, which at the High Court refers to the Court’s power to adhere to its past decisions. Unlike lower courts, which are obliged to follow prior decisions of superior courts (what is sometimes called vertical stare decisis), the Supreme Court need not bind itself to its own prior decisions. It sometimes does so, however, by choice (horizontal stare decisis).

Constitutional stare decisis received its fullest modern treatment in Planned Parenthood v. Casey (1992), where the joint opinion for the Court, citing Justice Cardozo’s “The Nature of the Judicial Process,” stated that “no judicial system could do society’s work if it eyed each issue afresh in every case that raised it. . . . Indeed, the very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable.” The Court went on to hold that a prior precedent should only be overruled if it had been shown to be “unworkable” and if various other “pragmatic” considerations had been satisfied, but that Roe v. Wade was not in this category.

Some scholarly treatments of stare decisis have emphasized its traditionalist features, while others have instead focused on pragmatics and consequentialist considerations. It certainly appears that the approach in Casey is more closely aligned with the latter, though this raises additional questions of its own, including the inefficacy of stare decisis if grounded solely in pragmatic concerns.

I briefly consider the issue of constitutional interpretation below, but three other examples of traditionalism in constitutional law that do not directly implicate the debates between originalism and non-originalism are also of interest.

First, consider James Madison’s views about the infamous Bank of the United States. The controversy over that institution is an old chestnut of constitutional history. The First Bank’s constitutionality was the subject of vigorous disagreement between Alexander Hamilton and Thomas Jefferson. But Madison’s more temperate and changeable view is of perhaps greater interest.

As a member of the House of Representatives in the First Congress in 1791, Madison had opposed the First Bank on constitutional grounds. But when the Bank was rechartered by Congress in 1816, by which time he was President of the United States, Madison famously changed his mind about the constitutionality of the Bank. In a letter to the Marquis de Lafayette, Madison wrote that whatever his private views on the subject, as a “public man,” he must acknowledge the “repeated recognition” of the Bank’s constitutionality by the several branches of the federal government and the “concurrence of the general will of the nation.” The passage of time, in conjunction with the reasoned judgment of the coordinate branches of government and the general acquiescence of the populace, changed Madison’s opinion about the merits of the underlying question, at least as a public matter.

Why should this be the case? If the Bank was unconstitutional initially, how could it thereafter become constitutional? And what is the specifically “public” quality of the passage of time and the acquiescence of the people that made a difference to Madison? It is possible, of course, that his real “public” reasons were purely political. But what he says is that custom informed by judgment and seasoned by the test of time are all “public considerations” of intrinsic value that argued in favor of the Bank’s continuity and retransmission, notwithstanding his own “private” views.

Second, consider Justice Felix Frankfurter’s concurrence in Youngstown Sheet and Tube v. Sawyer (1952) (commonly known as “The Steel Seizure Case”), a highly traditional opinion that is rarely acknowledged as such. There, the Court considered the constitutionality of President Truman’s unilateral seizure, in the name of supporting U.S. military operations in Korea, of privately owned steel mills whose workers were threatening to strike. The Court held that the Executive did not possess such inherent emergency powers, a conclusion with which Justice Frankfurter agreed. Yet in reflecting on the nature of executive power, Frankfurter also added this:

The Constitution is a framework for government. Therefore the way the framework has consistently operated fairly establishes that it has operated according to its true nature. Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them. . . . [A] systematic, unbroken, executive practice long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution . . . may be treated as a gloss on ‘executive Power’ vested in the President by section 1 of Art. II.[7]

One sees in this language the view that longstanding, continuous, and unbroken legal arrangements are more than merely historical facts or data. Again, though, the question is why? What precisely is the nature of the justification invoked by Frankfurter? Is the ancient quality of the arrangement most important? The “unbrokenness” of the practice? Does this type of approach make greater sense when considering questions of government power as compared with individual rights?

Whatever the answers to these questions, Justice Frankfurter implies that longstanding and unbroken arrangements carry their own normative charge. His awareness of that charge, his approval of it, and his desire to retransmit it—all of these reflect a traditionalist approach to constitutional adjudication.

Finally, let me touch on one of the most traditional constitutional decisions of all time, a case I’ve written about before  at Law and Liberty at greater length. It is the plurality opinion in Burnham v. Superior Court (1990), which concerned the limits under the Due Process Clause of the Fourteenth Amendment of state courts’ power to exercise personal jurisdiction over defendants.[8]

In expounding the Court’s modern formulation of these limits—whether personal jurisdiction “satisfies traditional notions of fair play and substantial justice”—the Court had departed from the historical territorial limitations on personal jurisdiction in favor of a more flexible approach. The flexibility was needed, said the Court, in order to take account of various developments in technology, communications, and interstate business activity. But the issue in Burnham was whether a defendant who was physically present within a state could escape personal jurisdiction by taking advantage of the new formulation.

The plurality said no: “jurisdiction based on physical presence alone constitutes due process because it is one of the continuing traditions of our legal system that define the due process standard of ‘traditional notions of fair play and substantial justice.’” A defendant’s expectations with respect to state power, said the plurality, should be reasonable not because they are “contemporary” or “fair” (as Justice Brennan urged) but because those expectations reflect traditional arrangements. Here again, the normative charge of tradition in law is apparent.

Tradition and the Originalism-Nonoriginalism Divide

Another discrete and complex set of questions concerns tradition’s role in constitutional interpretation, and in particular in the ongoing debates about originalism and nonoriginalism. But even before touching on those specific issues, it should be noted that traditionalism in constitutional interpretation is a general approach much more likely to be taken up by judges than by legal academics. Most judges aim to curate the law, which is to say that they view themselves as the custodians of an inherited constitutional order. Even in their work of constitutional interpretation, and with some exceptions, most judges simply maintain constitutional institutions more or less in the way that they received them.

Part of the reason is that they are bound by vertical stare decisis to do so. But in general, these courts neither provide new insights about original meaning nor innovate on that meaning in unexpectedly clever or brilliant or enlightened directions. They are guided, in the main, by the constitutional order that they inherited. They must in some sense regard and pride themselves as transmitters of that order. They must adhere in some deep way to what Shils described as the notion of doing well what has been done before.

All of this is very different from the usual academic projects in constitutional interpretation—whether of the originalist or nonoriginalist variety. Academic papers pressing constitutional custodianship or the maintenance of past practice tend to be few indeed, since the way to get noticed and advance in the academy is to say something new, something that is driven by a clear, animating principle or principles that the author deems particularly important. Repeating something old, or even attending to existing legal arrangements as a basis for formulating one’s views, is not a particularly promising path to success in the legal professoriate. Most legal writers and theorists, originalists and nonoriginalists alike, are motivated by a desire for novelty and by sustained attention not to social arrangements as they are and have been, but to preconceived principles.

Equality, the rule of law, fairness, democratic legitimacy, liberalism, progress, consent—these are only a few of some of the most prominent principles that commonly structure academic projects in constitutional interpretation. Rather than elegantly sidestepping the furniture, or even clumsily knocking into it, a good deal of contemporary legal scholarship aims to burn it down. This puts traditionalist constitutional interpretation—which presupposes and emphasizes a group of people with recognizable patterns of behavior that may be sustained or modified should internal incoherences in those patterns be identified—on the outs.

What might a traditionalist constitutional interpretive method look like? One possibility is that a court might be traditionalist as to the substance of its decision-making. It might emphasize exactly those existing social patterns of behavior or practices as suggestive of constitutional meaning, perhaps even as the primary constituents of meaning.

Both Town of Greece v. Galloway (2014) and Washington v. Glucksberg (1997) are recent decisions of this kind, the former upholding the constitutionality of legislative prayer on traditionalist grounds against an Establishment Clause challenge, the latter denying the constitutional right to physician-assisted suicide under the Due Process Clause on similar grounds. Note especially, in Glucksberg, the Court’s emphasis on the need to “carefully descri[be]” the asserted right at issue with specificity as well as to find that narrowly described right to be deeply rooted in the nation’s history and traditions.

A traditionalist court puts primacy on practices, not principles, as determinants of meaning. This might put traditionalism at odds with certain types of public meaning originalism, though there are other varieties for which practices may at least be “evidence” of original meaning.

The fate of Glucksberg’s interpretive method is in at least some doubt after the Court’s dismissal of it in Obergefell v. Hodges (2015). There the Court made plain that whatever might have been true for the issue of physician-assisted suicide, its traditionalism “is inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy.”

Yet this, too, raises interesting questions for study: Does the utility or applicability of traditionalist interpretive methods depend upon the specific subject being treated? How so, and how are these choices made? Are there certain substantive issues—concerning sexuality, for example, or perhaps even other matters of personal identity—that are ill-suited to traditionalist evaluation? Again, if so, why? And if so, does this suggest something about the weakness of traditionalism as a constitutional method, or perhaps about its limits?

Glucksberg is hardly the first decision to adopt something like this method when evaluating due process claims. An 1856 decision, Murray’s Lessee v. Hoboken Land and Improvement Co., involved a due process challenge to recovery of certain land through a particular congressionally authorized legal process. The Court first noted that the “Constitution contains no description of those processes which it was intended to allow or forbid. It does not even declare what principles are to be applied to ascertain whether it be due process.” Neither text nor principle, the Court believed, could answer the legal issue. Instead:

We must examine the Constitution itself to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country.

In other words, “settled usages and modes of proceeding” of long ancestry, in the understanding of the Murray’s Lessee Court, do more than inform the present meaning of constitutional text like “due process.” They are part of that meaning, though of course not the only part. While new practices might be also be incorporated into that existing meaning, usages and practices that were familiar, widespread, and settled before the Founding (as well as after it) are, for the traditionalist constitutional interpreter, constitutive of constitutional meaning.

This Liberty Forum essay is only a somewhat impressionistic collection of issues implicating the relationship of law and tradition. There are many more. And as with the other questions discussed in this essay, the traditionalist view of constitutional interpretation surely is contestable. Yet if only because traditionalism has a stubborn tendency to resurface in many constitutional opinions (and to be questioned and criticized in others)—and because it is a hardy perennial in law more broadly—it more than merits sustained reflection and study.

 

[1] Oliver Wendell Holmes, Jr., “The Path of the Law,” Harvard Law Review 10 (1897), 457, 469. Later in life, Holmes came to mellower view: “If a thing has been practiced for two hundred years by common consent, it will need a strong case for the Fourteenth Amendment to affect it.” Jackman v. Rosenbaum Co., 260 U.S. 22, 31 (1922).

[2] Edward J. Phelps, “Address Before the American Bar Association,” 1879.

[3] Edward Shils, Tradition (University of Chicago Press, 1981), p. 4.

[4] Rebecca L. Brown, “Tradition and Insight,” 103 Yale Law Journal (1993), 177, 183. My own view of the meaning of “custom” is different from Professor Brown’s.

[5] F.A. Hayek, “Freedom, Reason, and Tradition,” 68 Ethics (1958), 229-45.

[6] This is what David Bederman has called the use of custom “as a sword” and “as a shield.” David J. Bederman, Custom as a Source of Law (Cambridge University Press, 2010), p. 92.

[7] 343 U.S 579 (1952) (Frankfurter, J., concurring).

[8] 495 U.S. 604 (1990).

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