Monday, September 23, 2019
Traditionalist constitutional interpretation takes political and cultural practices of long age and duration as constituting the presumptive meaning of the text. This essay probes traditionalism’s conceptual and normative foundations. It focuses on the Supreme Court’s traditionalist interpretation of the First Amendment to understand the distinctive justifications for traditionalism and the relationship between traditionalism and originalism. The first part of the essay identifies and describes traditionalism in some of the Court’s Speech and Religion Clause jurisprudence, highlighting its salience in the Court’s recent Establishment Clause doctrine.
Part II develops two justifications for traditionalism: “interpretive” and “democratic-populist.” The interpretive justification is that enduring practices presumptively inform the meaning of the words that they instantiate. Generally speaking, we do what we mean, and we mean what we do. The democratic-populist justification is that in a democracy, people who engage in practices consistently and over many years in the belief that those practices are constitutional have endowed them practices with political legitimacy. Courts owe the people’s enduring practices substantial deference as presumptively constitutional. The populist element in this justification is that traditionalism is a defensive interpretive method against what abstract principle in the hands of elite actors has wrought: intolerance, the corrosion of lived experience, and the distortion of text to mirror a particular class of contemporary moral and political views.
In Part III, this essay compares traditionalism with originalism, reaching two conclusions. First, traditionalism’s reliance on practices as presumptively constitutive of constitutional meaning is most distant from originalist theories that rely on abstract principle as constituting the meaning of text and that reject practice-based evidence as the equivalent of irrelevant “expected applications.” It is closest to varieties of originalism that read text concretely. Yet traditionalist judges are not engaged in making guesses about “expected applications,” but in making decisions about retrospective applications—drawing on old and enduring practices either to include within, or exclude from, a tradition the specific practice under review. Second, the essay investigates the connection between so-called “original law” theories of originalism and traditionalism. Original law theorists argue that originalism is “our law” as a sociological and cultural fact. But traditionalism may be more “our law” than originalism in some areas within the First Amendment and outside it. If the positivist defense of originalism truly counts as a justification for any theory of constitutional interpretation (an issue on which this essay takes no position), then it may support traditionalism as much as originalism.
Friday, September 13, 2019
I want to call a little notice to John Huleatt's review of Luke Goodrich's new book, Free to Believe: The Battle Over Religious Liberty in America. It's a thoughtful and positive review, and I'm especially pleased to record that Mr. Huleatt is a St. John's Law graduate, class of 2002.
Saturday, July 6, 2019
From Book III of the Republic (PUP Edition, pp. 653-54, Paul Shorey trans.), to be set against Holmes's "bad man" theory :
"But a judge, mark you, my friend, rules soul with soul and it is not allowable for a soul to have been bred from youth up among evil souls and to have grown familiar with them, and itself to have run the gauntlet of every kind of wrongdoing and injustice so as quickly to infer from itself the misdeeds of others as it might diseases in the body, but it must have been inexperienced in evil natures and uncontaminated by them while young, if it is to be truly fair and good and judge soundly of justice. For which cause the better sort seem to be simple-minded in youth and are easily deceived by the wicked, since they do not have within themselves patterns answering to the affections of the bad...
Therefore it is, said I, that the good judge must not be a youth but an old man [Ed.: cf. Federalist 78: "Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge."], a late learner of the nature of injustice, one who has not become aware of it as a property of his own soul, but one who has through the long years trained himself to understand it as an alien thing in alien souls, and to discern how great an evil it is by the instrument of mere knowledge and not by experience of his own. [Ed.: cf. "The life of the law has not been logic; it has been experience"]...
For he who has a good soul is good. But that cunning fellow quick to suspect evil, and who has himself done many unjust acts and who thinks himself a smart trickster, when he associates with his like does appear to be clever, being on his guard and fixing his eyes on the patterns within himself. But when the time comes for him to mingle with the good and his elders, then on the contrary he appears stupid. He is unseasonably distrustful and he cannot recognize a sound character because he has not such pattern in himself. But since he more often meets with the bad than the good, he seems to himself and to others to be rather wise than foolish...
[S]uch a one must not be our ideal of the good and wise judge...For while badness could never come to know both virtue and itself, native virtue through education will at last acquire the science of both itself and badness. This one, then, as I think, is the man who proves to be wise and not the bad man."
Tuesday, June 25, 2019
That's my essay on The American Legion v. American Humanist Association over at Public Discourse this morning. A bit:
The holding of American Legion lays out what could be called a jurisprudence of old religious monuments, symbols, and practices. When a religious monument, symbol, or practice, is old—whether it is a cross or a Ten Commandments monument or some other government practice of long standing—it is especially likely to be imbued with many purposes and messages that have changed and developed with time. Communities are entitled to maintain these religious monuments, symbols, and practices as part of their historical and cultural heritage, and the Court will no longer “roam the land, tearing down monuments with religious symbolism and scrubbing away an reference to the divine.” “The passage of time,” the majority said, “gives rise to a strong presumption of constitutionality,” and the Cross in this case clearly enjoys that presumption. It is both a Christian symbol and a symbol of war and patriotism. It is these things together.
Already, this holding works a considerable change in Supreme Court doctrine. It surrounds “old” religious “monuments, symbols, and practices” with a protective shield against judicial mischief in the name of the Establishment Clause. New religious monuments, symbols, and practices whose purposes are manifestly discriminatory, it is true, are not covered by the holding (more on this below), and the terms “new” and “old” are not defined. But the Court’s existing approach to state-sponsored religious displays is quite different. The much-reviled test in Lemon v. Kurtzman (1971) focuses on “the” purpose—“religious” or “secular”—of a display, as well as its “primary effect,” which the Court has subsequently interpreted in this context to mean whether a “reasonable observer” would perceive that the government is “endorsing” religion by displaying a monument or symbol. While Justice Kagan believed that the cross also survived under this approach, none of the other justices in the majority accepted Lemon, and all justices in the majority held that “old” displays have neither single purposes nor single meanings. This is flatly incompatible with the assumptions of Lemon.
There is overwhelming support on the Court for what would have been a broader holding. In Part II(A) of Justice Alito’s opinion, a four-justice plurality rejected the Lemon test and its “endorsement” application for these types of religious displays. It was something of a surprise that Justice Breyer joined the plurality. But it was a real shock that this part of Alito’s opinion was not officially joined by Justice Thomas or Justice Gorsuch. Those two justices authored respective concurrences in the judgment, which technically means that while they agree with the outcome, they do not join the Alito opinion’s reasoning. But both of them would have gone further than the plurality and rejected the Lemon test in its entirety. That they did not join Part II(A) rejecting the Lemon test—at least with regard to “old” displays—is baffling. For those who were hoping that something clearer would emerge from this case, it’s also rather exasperating.
Justice Thomas, in fact, goes so far as to say this about the Lemon/endorsement test: “the plurality rightly rejects its relevance to claims, like this one, involving ‘religious references or imagery in public monuments, symbols, mottos, displays, and ceremonies.’ I agree with that aspect of the opinion” (emphasis added). With Thomas, the reasoning in Part II(A) therefore has the explicit support of five justices. But because Thomas did not formally join Part II(A), the statement seems to be dicta, material in an opinion unnecessary to the judgment. Admittedly, the line between dicta and holding is not crystal clear, and the statement could even be read as an alternative holding. Justice Gorsuch’s concurrence in the judgment also has highly critical comments about Lemon, but Justice Thomas’s statement is a clear and explicit affirmation of the plurality’s position.
At any rate, the lesson of American Legion seems to be that the Lemon/endorsement test is rejected—at least for “old” religious monuments, symbols, and practices.
Thursday, June 20, 2019
The Maryland Bladensburg Cross was allowed to stand. That's the easy part. The hard part is what precisely prevented the Court--for the second time in as many Establishment Clause cases involving these kinds of issues (see also Town of Greece)--from cobbling together a majority opinion repudiating Lemon/endorsement and offering a new approach, even one limited to religious displays. Instead, we got
- a plurality opinion (joined by Justice Breyer) with lots of extremely critical commentary about Lemon/endorsement, but that does not overrule Lemon/endorsement even in this narrow area;
- one concurrence that would have overruled Lemon/endorsement;
- one concurrence that preserves Lemon/endorsement;
- 4-6 votes for a history and tradition approach whose contours vary significantly depending on the justice;
- two opinions concurring in the judgment that would have overruled Lemon/endorsement;
- a dissent by Justice Ginsburg joined by Justice Sotomayor.
The puzzle: what prevented a majority from overruling Lemon/endorsement even in this specific area? Does Lemon/endorsement continue to apply in this area where the display is new and/or there is (lots of?) evidence of discriminatory motive? I find it difficult to understand how the extremely critical comments about Lemon/endorsement that four justices put their name to in the plurality, plus the views of another two justices that were ready to overrule Lemon/endorsement altogether, do not add up to some kind of actual overruling. Justice Kagan could certainly have written a concurrence in the judgment. Not to be, I'm afraid. Still, I'll have more to say about the 4-6 votes for some variety or other of a history/tradition approach soon.
Monday, June 17, 2019
Two little notes from the Center for Law and Religion at St. John's. First, my colleague, Mark Movsesian, and I have a new Legal Spirits podcast concerning what we call the "new abortion laws"--laws in several states taking a comparatively strong position on abortion regulation, whether restrictive or permissive. Along the way, we discuss the Supreme Court's recent per curiam summary reversal in Box v. Planned Parenthood, as well as what these new laws might suggest sociologically and culturally.
Second, I'm pleased to note the St. John's Center for Law and Religion edition of the latest issue of the Harvard Journal of Law and Public Policy. (Actually, it was entirely happenstance that one of Mark's articles and one of mine were published in the same issue.)
Mark's piece is Masterpiece Cakeshop and the Future of Religious Freedom.
Thursday, May 16, 2019
For those that enjoy listening to podcasts, my colleague, Mark Movsesian, and I have a few as part of our "Legal Spirits" series on law and religion, perfect for commuting or that quick workout at about a half-hour each.
First, a two-part series on "religious hate speech." Part I concerns government regulation of "hate speech" (speech either motivated by, or about, religion that is deemed hateful) while Part II considers the private side of suppression of speech considered hateful, focusing on universities.
Second, our most recent podcast is about the anti-vaccination controversy now roiling in Brooklyn and other parts of the country because of the resurgence of the measles. We talk about the legal ins and outs, and reflect on what the controversy might say about our ability to come together on questions of what truly constitutes a "compelling interest."
Friday, March 8, 2019
Here’s a new draft of an article I just posted: The Traditions of American Constitutional Law (forthcoming Notre Dame Law Review). Comments most welcome on what is still very much a work in progress. Here is the abstract.
This article identifies a new method of constitutional interpretation: the use of tradition to inform constitutional meaning. It studies what the Supreme Court means by invoking tradition and whether what it means remains constant across the document and over time. The task is worth pursuing inasmuch as traditional interpretation is pervasive, consistent, and recurrent across the Court’s constitutional doctrine. So, too, are criticisms of traditional interpretation. There are also more immediate reasons to study the role of tradition in constitutional interpretation. The Court’s two newest members, Justices Neil Gorsuch and Brett Kavanaugh, have indicated that tradition informs their understanding of constitutional meaning. The study of traditional interpretation seems all the more pressing to understand certain possible jurisprudential moves in the Court’s future.
The article concludes that when the Court interprets traditionally, it signals the presumptive influence of political, legal, or cultural practices of substantial duration for informing constitutional meaning. Traditional interpretation is thus constituted of three elements: (1) a focus on practices, rather than principles, as informing constitutional meaning; (2) a practice’s duration, understood as a composite of its age and continuity; and (3) a practice’s presumptive, but defeasible, interpretive influence. Traditional interpretation’s emphasis on practices that are given tangible form in a people’s lived experience suggests that it is preferable to speak about politically, legally, and culturally specific traditions rather than an abstracted concept of tradition. Hence, “the traditions of American constitutional law.”
The article identifies traditional interpretation as its own method; shows its prevalence and methodological consistency across the domains of constitutional interpretation; isolates and examines its constituent elements, comparing them against other prominent interpretive approaches; and infers and explains the justifications of traditional interpretation from the doctrinal deposit. While there may be some irony about a claim of novelty in an article about tradition, what this article identifies as new is not the invocation of tradition as such, but the isolation of a recurrent and consistent method—traditional interpretation—adopted by the Court across its interpretive work. It aims to bring to light an overlooked and yet frequently used interpretive practice, and to understand its structure, situation, and purpose within the Court’s constitutional doctrine.
Thursday, February 7, 2019
I began teaching law about 10 years ago, at a time when blogging was relatively new, but already old enough to seem only a partially, rather than a totally, suspect and outré activity. For new law professors, blogging represented a way--comparatively low-cost and easy--to begin to make connections and meet other people. Before blogging, I had always considered myself a (proud) luddite but unlike some of my junior colleagues, I made use of blogging fairly liberally in those days for networking. Dan Markel invited me to guest blog over at Prawfsblawg, and as far as I can reconstruct it, my first blog was this one "against novelty" in May 2009.
After a few repeat stints at Prawfs, Rick asked me over to Mirror of Justice in the fall of 2010, where my first post was about my review of what was then a new book by MOJ denizen, Steve Shiffrin. At that time, a lot of my scholarly focus was in criminal law, and I was especially interested in the idea that there was something distinctive about criminal law that differentiated it from other disciplines. This old post from back in those days--on the smoldering core of criminal law--was in that vein.
One nice thing about retrospective moments like this is that they allow one to think about themes that bind together one's work in a very general way. That post and several others from the earlier days reflect a much broader issue that has interested me over the years: namely, what multifarious sets of values and principles we can glean about the law from the way in which it actually exists and is practiced in our world. From the bottom up, as it were. In criminal law, law and religion, free speech, constitutional adjudication, and (now) constitutional interpretation (in a new article on the Supreme Court's use of tradition to inform constitutional meaning...more soon), I often find myself drawn to the theme of taking the practices immanent in law as reflecting a set of views, or even a mood about, or perhaps a general orientation toward, the legal and political world that is worth investigating and studying. To see what we can squeeze out of what it is now, rather than of what it might or ought to be. At Mirror of Justice, I've sometimes tried to think about how those practical realities about law, as I perceive them, inform and are informed by Catholic ideas.
But enough of this tedious navel-gazing. Mostly what I want to say now is that Mirror of Justice has been a place of true scholarly community for me. I have met some of my closest friends in the legal academy through this blog. It has been a source of fellowship and friendship for me over the years. If it has run its course, I will miss it. Ave atque vale!
Thursday, January 17, 2019
Mark Movsesian and I have this podcast as part of our Legal Spirits series, concerning a prayer practice at school board meetings in Chino Valley, California. The 9th Circuit panel struck down the practice, holding it as outside the ambit of Town of Greece v. Galloway. In connection with the en banc court's refusal to rehear the case, there was a subsequent statement by Judge O'Scannlain (and joined by 7 active judges on the 9th Circuit) severely criticizing the panel's decision and discussing the definition and scope of the tradition of legislative prayer marked out by Town of Greece.
We talk all about it in the podcast.