In response to: The Unforgettable Fire: Tradition and the Shape of the Law
Professor DeGirolami has written an interesting Liberty Forum essay in behalf of paying respectful attention to tradition as a major aspect of our legal order. However, I think there are two major problems with it. The first is theoretical, particularly in relation to the American political and legal experience. The second has to do with actual practices or examples. The essay, albeit interesting, is written from a lofty perspective; there are too few concrete examples that truly allow the reader to ascertain the implications of his argument. Almost always, when it comes to politics or law, the devil (or saving grace) is in the details, and Professor DeGirolami needs to put more real flesh on his otherwise skeletal argument.
On the level of theory, I confess that any argument concerning American politics or law that rests on the importance of adhering to tradition immediately brings to mind my old professor in graduate school, Louis Hartz. His most famous work, The Liberal Tradition in America (1955), includes the magic word “tradition,” but it scarcely overlaps with the traditionalism associated particularly with Edmund Burke. Indeed, I vividly remember Hartz’s near-dismissal of Burke as a potential avatar for Americans inasmuch as one cannot possibly understand the liberal tradition as one resting on undue—or, some might say, even any—particular respect for unanalyzed traditions.
As a country, we were the product of revolutionary upheaval, almost blithely overthrowing the inherited British structure of governance that rested on monarchy and aristocracy in which “commoners” knew their place and were more than willing to defer to “lords” and, ultimately, the King or Queen. What distinguished Americans from their later French counterparts was that we were “merely” secessionists, claiming the right to establish a new political order based on “the consent of the governed,” but otherwise leaving London to continue as a thoroughly unrepublican polity. The French, on the other hand, were committed to transforming Paris itself, which led, among other things, to the execution of Louis XVI and his Queen.
As we all know, Burke was appalled, and wrote his great screed against the Revolution even as he had supported the American revolutionaries (or secessionists), who were satisfied with tearing down statues of George III and changing the name of King’s College to Columbia. But, of course, they were also more than willing to attack the many Loyalists, defined as such by their adherence to traditional obedience to the Crown (and to the King in Parliament).
Moreover, it is worth noting that many American “patriots” were religious dissenters. Not only did most, with rare exception, reject Roman Catholicism; even the more gentle Church of England was widely disdained, and Baptists in Virginia, with the notable support of Jefferson and Madison, rejected the legitimacy of being taxed to pay for any religious establishment. If European “traditionalism” often rested on a mix of throne and altar, that obviously did not travel well to the New World.
Professor DeGirolami tellingly quotes both Khloe Kardashian and Oliver Wendell Holmes. One is hesitant to embrace Kardashian as a normative exemplar of American culture, and Holmes, of course, has become a central target of those who view “Progressivism” as a defining moment in the decline of that culture and Holmes as a central figure in that decline. So let me offer two other sources that call into question another notion that there was an Edenic period in America when tradition, however defined, reigned before the Fall instantiated in figures like Holmes and Woodrow Wilson.
Consider one of the ur-texts of American political thought, The Federalist. Needless to say, any series of 85 essays, written by three authors in a remarkably short period, will have its share of contradictions. That being said, my own favorite paragraph among the 85 is the conclusion of Federalist 14, which is, among other things, about the virtues of the “extended republic,” in contrast with what might be said to be traditional notions of republican political thought that emphasized the importance of relatively small and homogeneous societies as a prerequisite for republican governance. Publius dismissed such arguments:
Hearken not to the voice which petulantly tells you that the form of government recommended for your adoption is a novelty in the political world; that it has never yet had a place in the theories of the wildest projectors; that it rashly attempts what it is impossible to accomplish. . . . Is it not the glory of the people of America, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience? . . . They accomplished a revolution which has no parallel in the annals of human society. They reared the fabrics of governments which have no model on the face of the globe. (emphasis added)
A more modern source of guidance in such matters is John Marshall Harlan II, correctly regarded as a conservative bulwark against what some deem the excesses of the Warren Court. But then consider what many deem his greatest single opinion, which invalidated as unconstitutional Connecticut’s prohibition of contraception by married couples.
Justice Harlan’s dissent in the 1961 case of Poe v. Ullman (adopted by reference in his concurring opinion in the 1965 case of Griswold v. Connecticut) relied on what we have come to call “substantive due process,” which, he emphasized, has never “been reduced to any formula.” A judge, therefore, must exercise true judgment in giving it meaning through time. Ultimately that means the duty to “balance” the joint “postulates of respect” for both “the liberty of the individual . . . and the demands of organized society.” In striking that balance, said Justice Harlan, the discerning judge must pay due attention “to what history teaches are the traditions from which [the country] developed as well as the traditions from which it broke. That tradition is a living thing” (emphasis added).
Contrast this with the quoted passage from Murray’s Lessee v. Hoboken Land and Improvement Co. (1856) and its reliance on “settled usages and modes of proceeding.” Not all “settlements” are guaranteed to survive indefinitely, perhaps because, as suggested in Murray’s Lessee itself, they become viewed as “unsuited” to the actualities of developing “civil and political condition[s]” in America. Perhaps this is what Khloe Kardashian, in her own way, was getting at!
In any event, my point is altogether obvious: One important aspect of the American political and legal tradition is precisely to express significant skepticism about unwarranted “veneration” of past ideas. One must always be willing—and free—to denounce at least aspects of our heritage as senseless or even worse. After all, the cost of adhering to certain procedures traceable to Henry IV and other medieval predecessors may be only impaired efficiency. On the other hand, to adhere to evil traditions imposes far worse costs.
As Rogers Smith has demonstrated, Hartz was mistaken in believing that the American political tradition was exclusively liberal; one should not ignore other traditions that rely far more on ascribed characteristics of race or religion, for example, than on personal achievement and the willingness to take advantage of genuinely equal opportunity that exemplifies the liberal tradition at its best.
It is understandable, for example, that almost all contemporary Americans wish to denounce Dred Scott (1857) as typifying what Yale professor Jack Balkin and I have described as “judges on a rampage” who are unfaithful to the Constitution, which is treated as a basically sacred document that must, by definition, always be worthy of devotion. But, as the 1960s radical H. “Rap” Brown once noted, racialist oppression is as American as apple pie, at least as much a part of the enacted American political tradition as libertarian features that we might otherwise prefer to emphasize.
Coming to grips with that reality—what Professor Mark Graber has termed “constitutional evil”—and the concomitant need to pick and choose among aspects of our traditions (plural), is the task facing any serious analyst of American thought and, even more, any member of the America political community wrestling with the problems of our complex polity today. Bland evocations of “traditionalism” are of little help.
Turning now to the level of practice, as I said, I found the paucity of concrete examples in Professor DeGirolami’s essay disappointing. There are some brief references to particular cases, but they are scarcely presented in any depth. Justice Holmes in The Path of the Law (1881), the most important speech on law ever delivered by an American jurist and the source of Professor DeGirolami’s quotation about Henry IV, was himself arguing quite abstractly. One can be confident that almost none of his auditors had any idea of what concrete examples he might have had in mind or, as much to the point, why we really should care. Justice Harlan, in contrast, made his argument in the course of analyzing why Connecticut’s anti-contraception law was unconstitutional and why people could not be sent to jail to violating it.
Needless to say, echoes of Harlan’s argument—and his insistence that we must always be aware of the extent to which “tradition” in America is a “living thing” that necessarily evolves and changes—can be found in such contemporary decisions as Lawrence v. Texas (2003) and, even more notably, Obergefell v. Hodges (2015). The latter case is referred to somewhat obliquely with regard to its possible modification of the 1997 case regarding assisted suicide (Glucksberg). To be sure, an interesting question, but one suspects that Professor DeGirolami has some reservations about Obergefell itself—and perhaps Lawrence—quite independent of its fidelity to Glucksberg.
As already suggested, though, the most grave problems for anyone seriously advocating the claims of traditionalism within American constitutional analysis involve race (and ethnicity), as well, of course, as gender. Chief Justice Roger Taney’s demonic brilliance in Dred Scott was to have cited laws from Massachusetts and Connecticut—for obvious reasons, he steered away from laws passed by the Southern slave states—that reinforced his view that Americans in 1787 did, as a general matter, indeed believe that those we today call African Americans, a category that Taney would have found completely unthinkable, had no rights that whites were bound to respect. That constitutional reality was not contradicted by the empirical reality (as Taney acknowledged) that some states chose to grant blacks certain rights.
The central question is whether or not these were simply a matter of grace, which could easily be withdrawn—as occurred, for example, in North Carolina in 1835, when free blacks were deprived of the suffrage rights they had theretofore enjoyed. (A similar example, involving women, occurred in New Jersey in 1807.)
The key case for any “traditionalist” must be Loving v. Virginia (1967), where the Supreme Court invalidated the anti-miscegenation laws of Virginia (and other states) that could easily be traced back to colonial times (including the exemption for descendants of Pocahontas). Indeed, as in Bowers v. Hardwick (1986), where Chief Justice Burger in his concurrence cited Biblical sources to reinforce his view that discriminating against homosexuals was deeply embedded within the Western tradition, the Virginia judge below cited Biblical materials as well. Yet the Court, unanimously, dismissed all such arguments in Loving, as it would do almost a half-century later, in Obergefell (having overruled Bowers in 2003).
It’s also worth noting that “precedent” raises perhaps insoluble problems for anyone who professes to take the rule of law seriously. As I tell my students every year, the only time that precedential argument is truly interesting is when we find an existing decision problematic or even, to use Holmes’s term, “revolting.” Are we bound to follow it? Why in the world would that be the case if we link “the rule of law” to something other than blind obedience to “the rules laid down,” whatever their substantive (in)justice?
As Publius suggested, was not the “glory” of the American constitutional tradition at least as much the occasions when judges and other actors within that tradition drew on the “lessons of experience” to transform it as the occasions when they felt constrained to act within purported limits? I have no objection to teaching my students that there might well be a presumption in favor of adhering to existing rules, but the central question, as with all presumptions, is what it takes to overcome it.
Many political conservatives—and I have no idea whether Professor DeGirolami is among them—were repulsed by the Court’s decision in 2005 in the Kelo case, where Justice John Paul Stevens altogether correctly relied on more than a century of precedent to support the proposition that property could be taken, through eminent domain, to serve any “public purpose” even if, as in the instant case, it would be resold (or given) after condemnation to a private developer in the hope that development would ultimately generate much-needed tax revenue for the struggling city of New London, Connecticut. Justice O’Connor—who had written a key opinion in Hawaii Housing Authority v. Midkiff (1984), explicitly writing that state legislative institutions were the final authority on what constituted a “public purpose”— had the temerity to dissent, without adequately distinguishing the present case from Midkiff. So who was the model “traditionalist” in that case?
Evocation of the “common law” presents more general problems. We have long since stopped looking at common law judges as mere servants of the rules handed them. For better or worse, the “stars” of contemporary courses on torts, for example, include such judges as Benjamin Nathan Cardozo of New York and Roger Traynor of California, both of whom utterly transformed the existing understanding of tortious liability and basically invented the field of products liability. Or one might cite those many state judges who, without legislative prompting, correctly concluded that the decidedly traditional notion of “contributory negligence” had to make way for a more just theory of “comparative negligence,” especially in a socioeconomic setting that included the widespread availability of insurance.
Ironically, one influential model of constitutional decisionmaking is that offered by Professor David Strauss of the University of Chicago. He explicitly compares the Supreme Court to a group of common law judges who rarely pay genuine attention to constitutional text and instead draw on their own understandings of previously decided cases (and the traditions they instantiate) to engage in their own updatings of the Constitution.
As Professor DeGirolami at one point suggests, it may be difficult to distinguish between a truly normative “traditionalism” and a form of “prudentialism” that should indeed make us hesitant o make radical changes—unless, of course, there are very good reasons to do so. I consider the most important single sentence in the U.S. Reports to be that of Chief Justice John Marshall in McCulloch v. Maryland (1819), where he reminds us that the Constitution, if it is to endure, must “be adapted to the various crises of human affairs.”
Justice Frankfurter, whose extremely interesting opinion in Youngstown Sheet and Tube Co. v. Sawyer (1952) is quoted favorably by Professor DeGirolami, had earlier pronounced Marshall’s statement about never forgetting that “it is a constitution we are expounding” as the single most important sentence. For Frankfurter, this entailed that the Constitution is “a living framework within which the nation and the States could freely move through the inevitable growth and changes to be wrought by time and the great inventions.”
So perhaps the most sympathetic reading of Professor DeGirolami’s essay would lead one to conclude that we are all “traditionalists” so long as we embrace at least aspects of liberalism (and libertarianism)—and other “glosses,” such as the need for presidential power to act at least in some circumstances even if not explicitly granted by Congress—that are clearly part of the American political tradition. Such traditionalists could easily endorse the willingness of courts and other constitutional interpreters to know when commitment to a “living tradition” entails overthrowing those parts of the past, whatever their provenance, and whatever support they enjoy even from distinguished “names” whose views now seem “unsuited” to contemporary challenges.
However sympathetic a reading this might be, I nonetheless suspect that Professor DeGirolami would resist it. In any event, I look forward to his further elucidation of his argument and its implications.
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,…
In the first paragraph of his celebrated 1881 book on the common law, Oliver Wendell Holmes, Jr. wrote: “The life of the law has not been logic; it has been experience.” Nor was that the first such expression in the annals of American jurisprudence. At the Philadelphia Convention of 1787, James Madison recorded John Dickinson’s…