At SCOTUSblog, Tal Fortgang (Manhattan Institute): Can traditionalism be originalist? Fro the introduction:
Tradition may have been a balancing force in “Fiddler on the Roof”but nowadays it has originalists feeling out of whack. Originalists unite around the belief that constitutional provisions should be interpreted according to their original public meaning; that is, how these provisions would have been understood at the time of their ratification. But what counts as evidence of original public meaning? And can post-ratification practices play a role?
Answering that latter question in the affirmative – looking for evidence of continuous and widespread practices to illuminate a law’s meaning after its passage – has come to be known as legal traditionalism. Leading originalists reject traditionalism or argue that rumors of its influence in recent Supreme Court decisions are greatly exaggerated. But, importantly, the court itself may not have gotten the message: Several recent landmark decisions instruct lower courts to do more than examine the law’s text and the historical context in which that text was ratified. Rather, the court has recognized that judges trying to apply old laws to contemporary disputes must account for long-running and widespread practices that illuminate the relationship between the law and the facts. While those practices may not be definitive, they are to be considered valuable clues regarding what the law has long meant – and therefore what it continues to mean.
This is for good reason. Despite the pushback from certain originalists, there is no betrayal inherent in the turn to traditionalism. Rather, originalism and traditionalism are compatible. So compatible, indeed, that when an avowedly originalist court gets to engage in analysis that cuts to the heart of the originalist project – determining what the law is – it finds traditionalism the best way to do so.
And from the conclusion:
Indeed, traditionalism’s great insight, drawing on the common-law system, is that those who live under law’s rule interpret the law all the time. When a new law passes, we must conform our conduct to its demands, in combination with the many laws already governing us. We consult our lawyers and use our common sense. Disputes arise and resolve as sensible interpretations prevail. Through millions of individual acts – advice, lawsuits, adjustments to business practices, government enforcement – the legal system reaches equilibrium. Meaning is no longer contested, and a law’s meaning crystallizes. The process takes some time, and it’s not quite clear in the moment that the process has produced a final, fixed meaning. But a judge looking back and seeing an uninterrupted course of practice, done openly and without legal challenge, can safely conclude that Americans considered that practice consistent with the law’s demands.
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This kind of analysis – which accepts the need for post-ratification practices – requires inquiries into not just legal history but social history. And to be sure, it presents plenty of theoretical and practical challenges. Rigorous academic history requires time, materials, and epistemic humility. It is hard to know when a practice was treated as a constitutional right, and when it was considered merely acceptable. Judges and academics will have to develop more detailed frameworks for analyzing evidence.
But these are challenges with analogs in all history-based modes of analysis. Judging, for those who believe that the law has a fixed meaning, is all about synthesizing evidence from the past and pronouncing a conclusion about where it points. If the alternative is judging cases by unspoken appeal to normative views of good governance, the choice is clear. Judges are much better prepared to assess and synthesize history than they are to make moral judgments, and they are at least arguably authorized to do so. As arch-originalist Justice Antonin Scalia put it, “the principles adhered to, over time, by the American people,” should provide color to indeterminate constitutional provisions, as opposed to the “philosophical dispositions of a majority of this Court.”
That stalwart originalist justices started invoking tradition at the height of originalist achievement should not be baffling. Originalists have been saying for decades that judges ought only say what the law is, never what the law should be. Traditionalists, who distinguish what the law is from what the law would have meant, have a strong case for being that mantra’s truest adherents.
And here is the core of Justice Scalia’s argument in the case linked above (Rutan v. Republican Party, dissenting):
The provisions of the Bill of Rights were designed to restrain transient majorities from impairing long-recognized personal liberties. They did not create by implication novel individual rights overturning accepted political norms. Thus, when a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open, widespread, and unchallenged use that dates back to the beginning of the Republic, we have no proper basis for striking it down. [footnote] Such a venerable and accepted tradition is not to be laid on the examining table and scrutinized for its conformity to some abstract principle of First Amendment adjudication devised by this Court. To the contrary, such traditions are themselves the stuff out of which the Court’s principles are to be formed. They are, in these uncertain areas, the very points of reference by which the legitimacy or illegitimacy of other practices are to be figured out. When it appears that the latest “rule,” or “three-part test,” or “balancing test” devised by the Court has placed us on a collision course with such a landmark practice, it is the former that must be recalculated by us, and not the latter that must be abandoned by our citizens. I know of no other way to formulate a constitutional jurisprudence that reflects, as it should, the principles adhered to, over time, by the American people, rather than those favored by the personal (and necessarily shifting) philosophical dispositions of a majority of this Court.
In the footnote he added:
The customary invocation of Brown v. Board of Education, 347 U. S. 483 (1954), as demonstrating the dangerous consequences of this principle, see ante at 497 U. S. 82 (STEVENS, J., concurring), is unsupportable. I argue for the role of tradition in giving content only to ambiguous constitutional text; no tradition can supersede the Constitution. In my view, the Fourteenth Amendment’s requirement of “equal protection of the laws,” combined with the Thirteenth Amendment’s abolition of the institution of black slavery, leaves no room for doubt that laws treating people differently because of their race are invalid. Moreover, even if one does not regard the Fourteenth Amendment as crystal clear on this point, a tradition of unchallenged validity did not exist with respect to the practice in Brown. To the contrary, in the 19th century, the principle of “separate-but-equal” had been vigorously opposed on constitutional grounds, litigated up to this Court, and upheld only over the dissent of one of our historically most respected Justices. See Plessy v. Ferguson, 163 U. S. 537, 163 U. S. 555-556 (1896) (Harlan, J., dissenting).
Note that in Rutan, Scalia uses the tradition argument as a doctrine of restraint, counseling the Court not to act in cases of ambiguity (while also emphasizing that tradition cannot overcome a clear constitutional command). I think most originalists would likely accept that approach. A more difficult question in my view is whether courts can use tradition to intervene against a new practice by the political branches, even if that new practice is not contrary to the Constitution’s text.
Posted at 6:08 AM