Tradition and the Constitutional Curator

It is uncommon today for people to argue for the retrieval of the beliefs and institutions of prior periods once they have been set aside. Even those few who do are not usually sanguine about the odds of retrieval. Particularly in intellectual circles, it takes a certain degree of rash temerity to make such arguments—and to risk the label of traditionalism or even reaction—in light of the overwhelming intellectual prejudices in favor of progress. Even the view that things ought to be maintained as they are, or as they have been until the very recent past, is generally discounted as benighted. Things ought to be changed—tinkered with or even substituted, but always improved.

In law, the normative force of traditionality is supremely out of vogue. It is generally believed to offer almost no resistance to arguments proceeding on the assumptions of the prevailing intellectual movements—those inclined toward efficiency, autonomy, equality, identity, rationality, and technocracy, for example. But the moral and cultural power of a past practice, arrangement, or belief, just in virtue of its endurance and past-ness, has dwindled to the vanishing point.

Can these statements be defended at a time when, in constitutional law, originalism has achieved an unprecedented degree of legitimacy? It is true that interest in history seems to be as high as it ever has been in constitutional law and scholarship. Yet here it may be helpful to distinguish between the desire to contemplate an ancient text in search of an abstract value or principle which can be applied in pure form to contemporary circumstances, and the commitment to tend and maintain the institutions of the past as an enduring continuity and a sustained reflection of a society’s legal customs and dispositions. The tradition-minded constitutionalist will be interested not only, and not primarily, in the fixed meaning of words at the period of their writing, but also, and much more, in the coherence and continuity of those meanings with the patterns, dispositions, and customs long before and after the writing. And he will want to apply the insight that Edward Shils once articulated about moral character to constitutional character: “Stable, well-formed characters are not their own creation, however large the part of deliberate self-discipline in their conduct. Their stability is the unshaken dominion of the pattern acquired in the past.”

Consider the icons of constitutional law: the founders and the innovators. The founders are the heroes of the originalists. They are the creators, the inspired geniuses, the timeless sages whose wisdom must be fixed, distilled, and bottled up for use today (I bracket the issue whether it is the founders’ words or their intentions that deserve these honors). The innovators are the heroes of the living constitutionalists. They are also creators and inspired geniuses, and their brilliance consists in updating the wisdom of the founders. In the collective imagination of originalists and living constitutionalists, these heroes share certain features. They are like the explorers of the Age of Discovery: what they bring to new shores–their values, aspirations, ideals, and other political and cultural desiderata–is more important either than what they inherited or what they find.

Almost nobody, however, idolizes or even expresses gratitude to those who have maintained constitutional institutions in much the same way as they received them—the constitutional curators. The originalist praises the founder, but rarely those who preserve and transmit what the founders made. The living constitutionalist praises the innovator, and complacency is the mildest charge he may make against those who are for standing pat.

And yet many of the virtues we admire in judges, particularly at levels below the Supreme Court, involve the maintenance and transmission of an inherited tradition. Judges in our system must much more frequently display the character of the curator—the care-taker—than that of the world-changing innovator. They must in some sense regard and pride themselves as espousers and transmitters of a legal tradition, and they must regard that as a very good thing. They must adhere in some deep way to the notion of doing well what has been done before. That commitment gives a normative charge to the statistical recurrence of generations of similar beliefs, practices, and institutions in the law. It becomes a willed transmission linking the generations of the dead with the generations of the living.

It is past time to include the constitutional curators among the founders and the innovators as archetypes in our own constitutional tradition.