Category Archives: Marc O. DeGirolami

Comparing Traditionalism and Originalism II

Here’s the second of my two posts on traditionalism and originalism in constitutional interpretation. This post discusses the TP BannerNoel Canning decision, and one of its main points concerns the institutional pluralism (legal, political, social, and cultural) of the traditionalist method. A bit:

First, a quick recapitulation of traditionalism in constitutional interpretation. Traditionalist interpretation is concerned with perpetuating and maintaining longstanding legal practices—not only those of the Supreme Court but also of other legal and political institutions (Congress and the Executive, for example) as well as social and cultural institutions (as in the case of legislative prayer). Especially in the many cases of vague constitutional text, traditionalist interpretation takes these practices not as evidence of meaning but as constituents of meaning.

Traditionalist interpretation consequently values the practices of many different sorts of institutions. It is institutionally pluralist in this way, and certainly not focused exclusively on the Supreme Court. In fact, a traditionalist Supreme Court opinion will be deferential to the constitutional views of the coordinate branches where those views have endured for very long periods of time. It will be interested in maintaining and re-cementing those views. There is therefore a democratic component of traditionalist interpretation, though it is the democratic sensibility of the authority of long-standing practice as the accumulated wisdom of the people over time, not that of present majority inclination.

Like originalist interpretation, traditionalism is historically rather than normatively oriented, but it does not focus single-mindedly on the moment of ratification. Institutional practices before, during, and after ratification are significant. Continuity is the crucial feature. The longer those practices have endured, the less likely the Court will be, in the ordinary case, to upset them—indeed, the less likely that the practices may be to be brought before the Court at all.

Noel Canning concerned the meaning of the Recess Appointments Clause in Article II, Section 2, Clause 3, and in specific whether the phrase “during the recess” authorized the President to make appointments within congressional sessions or only between the formal sessions of Congress. The originalist arguments for the latter interpretation were powerful, but in a 5-4 majority opinion authored by Justice Breyer, the Court concluded that the President may make recess appointments while Congress is in session.

The influence of traditional institutional practice on the Court’s decision was massive. Relying on Chief Justice Marshall’s statement in McCulloch v. Maryland that the “longstanding practice of government” must inform the Court’s role to “say what the law is,” the Court emphasized that “long standing and established practice is a consideration of great weight in a proper interpretation of constitutional provisions.” In this, the Court’s first foray into interpreting Recess Appointments Clause in more than 200 years, “we must hesitate to upset the compromises and working arrangements that the elected branches of government themselves have reached”….

But the particular nature of that “broader interpretation” in Noel Canning is of great interest. What makes a practice long-standing? How long and continuous is long and continuous enough? Which political virtues are supported by the traditionalist method? And how does the longstanding practice or traditionalist approach differ from living constitutionalism?

The Court did not answer any of these questions directly. But it did say that “three quarters of a century of settled practice” in which Presidents had overwhelmingly favored the broader construction and the Senate had largely acquiesced in that construction “is long enough to entitle a practice” to “great” interpretive weight. In truth, three quarters of a century does not seem a particularly long period as the traditionalist measures time, particularly when compared, for example, with the duration of the practice of legislative prayer in Town of Greece v. Galloway. Yet what seems to matter is not only temporal duration but also the preponderance or uniformity of the interpretive preference within that span.

It was also critical to the majority’s approach that though the founding-era view was not directly probative of the Court’s broader interpretation of the clause, the Court found it to be consistent with that interpretation. That finding permitted the incorporation of founding-era understandings to support the longstanding practice on which the majority relied (again, this was a point vigorously and acutely disputed by Justice Scalia). Finally, institutional dynamics and historical patterns also figure prominently in the majority opinion. It was the enduring practices of the coordinate political and more directly democratically accountable branches, not those of the Court, that demanded acknowledgment and deference.

As for the differences between traditionalism and living constitutionalism, one of the most significant is that for the former, long-standing and continuous practice fixes meaning. And it fixes it with a durable presumption, refusing to deviate from it unless there are overwhelmingly good reasons for doing so. Living constitutionalism is committed to no such thing. It prizes the evolution of meaning. A practice’s endurance or traditionalism is never a reason to perpetuate it. To the contrary: it is if anything a reason to change it.

I should add that the DC Circuit’s opinion draws a much sharper divide between founding-era practice and subsequent practice. In some ways, this makes the Supreme Court’s opinion even more interesting from a traditionalist perspective: Justice Breyer’s opinion did not acknowledge this division. It worked the difference into a continuity. I suppose one could be cynical about this and say that traditionalist methods are manipulable. But Breyer could not have incorporated the founding period into the tradition if there had been a more marked divergence from later practice (thanks to Adam White for help in thinking through some of this).

Welcome to the Blogosphere “Religion Going Public”!

Professor Helge Årsheim (University of Oslo) writes to me with news of a very good new blog, Religion Going Public. The blog’s focus is primarily on religion, culture, and politics in Norway, Scandinavia, and Europe, with a very interesting group of contributors.

Welcome to the blogosphere, and check it out!

Comparing Traditionalism and Originalism

I have the first of two posts up at the Liberty Law blog comparing originalism and traditionalism in constitutional TP Bannerinterpretation. The first post uses Town of Greece v. Galloway while in the second I’ll talk about the NLRB v. Noel Canning. The point of the posts is not to defend these decisions, but merely to distinguish them as traditionalist in interpretive method. Here’s a bit from the end:

How is [traditionalism] different from originalism? Here things quickly become complicated because of the broad variety of originalist interpretive approaches. Shortly after the decision [in Town of Greece] was issued, Professor Michael Ramsey had an excellent and useful post on the degree to which Kennedy’s opinion was originalist, in which Ramsey concluded that it reflected a species of original expected applications originalism:

It’s not (typically for Kennedy) an exclusively originalist opinion, but there is a strong originalist element….Kennedy’s principal contention (following Marsh) is that the people who proposed the First Amendment also authorized sectarian legislative prayer, so the Amendment must permit it.

In academic terms, this is a version of “original expected application” – that is, how did the framers of a provision anticipate it affecting existing practices? It is fashionable in academic circles to look down on original expected applications. Under original meaning originalism, the question is: what did the text mean? It’s not, what did some people at the time think it would mean (or, worse, how did some people at the time apply it in practice once it was enacted)? If that’s right, Kennedy is looking in the wrong place – it shouldn’t matter what people thought would happen to legislative prayer, but rather what the text actually meant for legislative prayer.

And yet for the traditionalist it should and does matter that many people, including the drafters (but certainly not only they), did not believe there to be any inconsistency between the practice of legislative prayer and the meaning of disestablishment in the First Amendment. It furthermore matters for the traditionalist (as it does not for many originalists) that the practice was widely accepted in the colonial period as well as for long periods after the ratification of the Establishment Clause. That is because the traditionalist is more focused on practices than meanings when it comes to constitutional interpretation. Or perhaps it is better to say that the traditionalist believes that the meaning of text—particularly as to text that is itself abstract—is far better determined and understood by recourse to concrete practices than by recourse to still other abstract principles.

Here there may be some further overlap between traditionalism and those sub-varieties of public meaning originalism that are receptive to discerning meaning from practices and customs. Professors John McGinnis and Michael Rappaport have written favorably about this interpretive approach in this paper. Professor Ramsey puts the point well from the originalist perspective: “If a very broad consensus at the time of enactment (or shortly after) thought that provision X did not ban activity Y, that is surely strong evidence that the original public meaning of X did not ban activity Y.” For the traditionalist, practices (not principles) are not “merely evidence” or “some evidence” or even “strong evidence” of meaning. Meaning is constituted by practices. The endurance of those practices and the degree of their social acceptance—before, during, and after textual ratification—are also constituents of meaning. None of this implies that these are the only constituents. Neither does it imply that new practices cannot be enfolded into existing meanings. That the founders did not know about email or the Internet, for example, does not mean, on the traditionalist view, that the Fourth Amendment cannot apply to those new media today. But practices that were familiar; widespread; continuous before, during and after the founding; and constitutionally unobjectionable offer more than “evidence” of the meaning of the Establishment Clause. For the traditionalist, they are themselves part of that meaning.

Magna Carta’s Votaries, Skeptics, and Traditionalists

I have this new post on the subject of law and tradition at the Library of Law and Liberty, the fourth in my Tradition ProjectTP Banner series. In it I discuss a recent essay by Professor Martin Krygier, whose reflections on law and tradition I have noted in several previous posts here. A bit from the post:

Lawyers speak and think within a particular idiom, and that idiom is transmitted across long periods of time. What is called “thinking like a lawyer” is in reality learning the idiom of law within a particular legal tradition. As Krygier argues that idiom is specially—perhaps uniquely—dependent upon the past:

Law is one of the most self-consciously traditional of practices, and lawyers have a distinctive preoccupation with the legal pasts. They are always mining the past for authorities they can deploy in the present; that is something engineers, for example, don’t do in the same way – their tradition has a thinner presently active past than does law—and it is characteristic of the profession. They are not expected to recommend a result simply because it would be a great idea, they recommend it because they claim it flows from the existing law, some of it—particularly in the common law—very long-existing law. That law has authority, and it also contains ideas, arguments, resources for thought. Lawyers are expected to take the legal past seriously.

All of this relates directly to the meaning of Magna Carta. That meaning is both changing and profoundly connected to the past. One of the most common mistakes about traditionalism in law (and elsewhere) is the view that it is static. But a language, or an idiom, is not static. As Alistair MacIntyre has put it, “A living tradition then is an historically extended, socially embodied argument, and an argument precisely in part about the goods which constitute that tradition. Within a tradition the pursuit of goods extends through generations, sometimes through many generations.”

The traditionalist view of Magna Carta, in Krygier’s view, can accommodate both these features of historical continuity and change in a way that neither the votary nor the skeptic can. In this way, the traditionalist view is particularly well suited to law which, unlike history, is not principally interested in establishing what happened so much as drawing “on the present-past of law to deal with present legal problems.”

“Tradition and the Judicial Talent”

Playing on TS Eliot’s famous essay, that is the title of the third entry in my Law and TP BannerTradition series at the Liberty Fund’s blog. In the post, I discuss the very interesting plurality opinion in Burhnam v. Superior Court, one of the Court’s highly traditionalist opinions (and one perhaps not so commonly known outside civil procedure circles).

From the end:

Burnham involved the…question whether the state of California could assert personal jurisdiction in a divorce action over a defendant who was physically present within the state. The defendant had entered California on business and to visit his children, and he claimed that the more flexible approach for defendants without physical presence should apply in his case as well. The Court disagreed:

The distinction between what is needed to support novel procedures and what is needed to sustain traditional ones is fundamental….The short of the matter is that 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.” That standard was developed by analogy to “physical presence,” and it would be perverse to say it could now be turned against that touchstone of jurisdiction.

In so holding, the Burnham plurality denied that a state’s exercise of personal jurisdiction over a defendant depends solely on measuring the extent of his contacts with the state against abstract, evolving, and ultimately subjective tests of fairness or justice.

The plurality also noted that its methodology differed significantly from Shaffer v. Heitner, in which the Court had stated that “traditional notions of fair play and substantial justice” may be “readily offended by the perpetuation of ancient forms that are no longer justified.” Justice Brennan’s concurrence in Burnham likewise urged the Court to apply “contemporary notions of due process.”

The Burnham plurality responded that it was doing just that, for “contemporary notions of due process” just exactly are the “traditional notions of fair play and substantial justice” that “are applied and have always been applied in the United States.” These notions are not the playthings of the justices. They are not judicially evolving notions. Neither are they merely historical notions. They are traditional notions. Personal jurisdiction over a defendant physically present within a state may be reformulated as “fair” (as Justice Brennan urged) because the defendant could “reasonably” have expected it. But his expectation would have been reasonable only because personal jurisdiction in such circumstances is traditional: “fairness,” the plurality said, “exists here because there is a continuing tradition.” The tradition can change, of course, if a state wishes to change it. But the overwhelming majority of states had not, and it was not the justices’ proper role to do so.

The plurality opinion in Burnham is, in sum, one of the Court’s most traditional decisions. And in its response to Justice Brennan’s progressive understanding of the judicial role, one is reminded of Eliot’s famous essay, Tradition and the Individual Talent: “Someone said: ‘The dead writers are remote from us because we know so much more than they did.’ Precisely, and they are that which we know.”

“The Social Equality of Religion or Belief” (Alan Carling, ed.)

I’m pleased to announce that The Social Equality of Religion or Belief, edited by Professor Alan Carling, will be released in SEROBMarch by Palgrave Macmillan and is now available for pre-order. I have a chapter in the book titled, “The Bloating of the Constitution: Equality and the U.S. Establishment Clause,” which, it is probably fair to say, falls on the skeptical side of the book’s contributions. Here are the first few lines of my chapter:

The US Establishment Clause is in disorder. There are currently at least six different approaches to interpreting the ‘establishment’ component of the First Amendment injunction that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof…” (US Constitution, Amendment 1). Tests of church-state separation, non-coercion, secularity, historical practice, non-endorsement and neutrality all have been used by the Supreme Court at one time or another across a broad panoply of cases. Sometimes two or more of these tests have been squeezed together within a single case, with implied reassurances that the result does not really depend upon the test anyway. At levels below the Supreme Court, this sort of doctrinal bricolage is often only prudent self-protective practice by judges compelled by the Court’s opacity to hedge their bets.

I have argued in other work that these doctrinal confusions are in part the result of the Court’s propensity to elevate a single value to master status in evaluating Establishment Clause controversies (DeGirolami 2013). Dependence on equality or neutrality or separationism as the preeminent constitutional touchstone in one case is felt by the Court to be inadequate or incomplete in a second or third; additional tests are thus cobbled together to accommodate what are perceived in subsequent cases to be distinctive circumstances. Single-value theories of the Establishment Clause misconstrue the conflicts at stake by leveling them – compressing them so as to be capable of processing through the filter of the selected value. Call this phenomenon constitutional flattening. One result of constitutional flattening is the multiplication of Establishment Clause theories to remedy the practical deficiencies in any one of them as they are applied case to case.

This Chapter explores a different side effect of monistic approaches to the Establishment Clause: constitutional bloating – the expansion of the scope of the Establishment Clause without the formality of an actual judicial ruling so expanding it. Courts that rely on an abstract value or interest in deciding constitutional controversies bloat the Establishment Clause by trading covertly on its political popularity, conceptual malleability and indeterminacy of meaning. Merely by recurring to or invoking the selected value – always one with vague but deep rhetorical appeal – courts swell the scope of the Establishment Clause without the need explicitly to acknowledge that expansion in their opinions. The problem is not merely that Establishment Clause bloat renders dubious any claims about the predictability of single-value approaches to constitutional adjudication. It is also that judges are thereby licensed to broaden the reach of the Clause by suggestion, allusion, or implication, without openly and clearly stating what they are doing.

The value of equality is by far the most potent and effective instrument of Establishment Clause bloat. This is so for two reasons: first, equality is the overriding legal value of our age – the defining constitutional issue of our time. The rhetorical power of equality is devastating, eliciting in its most ardent adherents something approaching militant zeal. As Steven Smith has put it, “equality is a juggernaut that overwhelms pundits, politicians, and professors, and threatens to flatten individuals or institutions that dare stand up against it” (Smith 2014). Simply to invoke the value of equality in favor of any given outcome is frequently perceived as a self-evident and irrefutable justification for it, one that it would be scandalous to question. Second, equality is multivalent, and equalities of different types may and often do conflict. Equality of opportunity is not equality of outcome; procedural equality of treatment is not the ambitious equality of ‘concern’ or ‘respect’ for every person’s substantive commitments; and though neutrality is a kind of equality, it is not the only kind. Moreover, there may be internal conflicts even within equalities of the same type. The fearsome cultural, legal and political might of equality, coupled with the multiplicity and ambiguity of egalitarian meanings, have united to create a singularly effective tool of Establishment Clause bloat.

Third Biennial Colloquium in Law and Religion Kicks off February 1

Mark and I are excited for the start of our third biennial Colloquium in Lawclr-logo1 and Religion in Spring 2016. This seminar invites leading law and religion scholars to make presentations to a small audience of students and faculty. The following speakers will be presenting:

February 1: Brett G. Scharffs (Brigham Young University School of Law)

February 16: Robin Fretwell Wilson (University of Illinois School of Law)

February 29: Robert P. George (Princeton University)

March 14: Mark Tushnet (Harvard Law School)

April 4: Justice Samuel A. Alito (United States Supreme Court)

April 18: Elizabeth H. Prodromou (Tufts University Fletcher School of Law and Diplomacy)

We will announce topics as sessions occur. To read more about past colloquia, please see these links:

For more information about the Spring 2016 colloquium, please contact me at degirolm@stjohns.edu or Mark at movsesim@stjohns.edu.

Law and Tradition: A Tradition Project Blog Series

Over at the Library of Law and Liberty, I am guest blogging for the month of TP Banner
January and writing a series of posts that I’m calling collectively “Law and Tradition,” a set of reflections on the relationship of tradition and traditional legal methods and approaches to judicial decision making. My hope is that these posts will offer an introductory set of questions, thoughts, and provocations that can serve as a prologue for further study and reflection for our Center’s Tradition Project (more details about this shortly).

Here is my first post, Tradition and the Constitutional Curator. A bit from the beginning:

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.”

Richard Epstein and Me on the Freedom of Association and Antidiscrimination Measures

Over at the Library of Law and Liberty blog, the formidable Richard Epstein (NYU/Chicago) has a long essay titled, Freedom of Association and Antidiscrimination Law: An Imperfect Reconciliation.

It was an honor to respond to Professor Epstein’s essay in this comment, in which I investigate some causes of the classical liberal retreat. Other responses by Professor Andrew Koppelman and Professor Paul Moreno will follow. A bit from the beginning of mine:

Professor Richard Epstein has performed a welcome service in reminding us of the classical liberal case for the freedom of association. The classical liberal champions the primacy of rights as guarantors of the individual’s sovereignty to make free dealings with other sovereigns. He values rights as safeguards of the freedom to make moral and economic choices, to unite with others of like mind, and promptly to divest when the benefits of union are no longer perceived. He distrusts rights as claims for the imposition of obligations that override others’ sovereignty, reserving such mandates for special cases—force and fraud, as well as monopolistic control.

As Epstein has incisively noted elsewhere, discriminating associations are features of well-ordered societies in which people disagree about the good life, much as discriminating palates are features of well-ordered societies in which people disagree about good taste.[1] Association implies discrimination; to include some is to exclude others. Discrimination is legally wrongful only when it completely blocks a class of persons from access to a particular set of commoditized goods and services. But it is not legally wrongful if such persons feel the offense of exclusion but still can access alternative market channels. Respect for rights is supposed to limit the power of the state, not enhance it. All this is an appealing view of associational freedom in many ways.

Why, then, is this view so much in retreat? For it is today in open and full retreat. As Epstein’s Liberty Forum essay shows, the scope of antidiscrimination law, and the zeal with which it is enforced, have greatly increased over the last few decades. The power of government to mandate proliferating and ever more rigorous norms of equality has accelerated and shows no signs of abating. More perplexing still is that a significant and growing number of Americans, especially those in elite circles (including in younger generations), have acquired a wolfish appetite for measures that contract First Amendment freedoms and swell the state’s power to stamp out discrimination of increasingly recondite varieties wherever they may exist. Epstein notes all this and rightly laments it. But he does not explain it.

What happened to the libertarian, economically-inflected, live-and-let-live vision of the freely associating society?

Many things that this brief response to Epstein cannot comprehensively catalog. Yet one explanation for the classical liberal retreat lies in its failure to account for the psychologically affective features of law—and in particular its blindness to the influence of its own marketized and contractualized conception of First Amendment freedoms, including associational freedom, on the civic virtues and ideals of the citizenry. Law gives direction; it teaches, orders, and ranks; it creates hierarchies. The classical liberal model of law is no exception.

AALS Law and Religion Section Panel: “Religious Responses to Same-Sex Marriage”

I’m pleased to announce this year’s AALS Law and Religion section panel, “Religious Responses to Same-Sex Marriage,” to be held this Thursday, January 7, from 10:15 AM to noon (Nassau West, Second Floor, NY Hilton). The panel will be moderated by Michael Helfand (Pepperdine) (after a short introduction from me) and will include the following panelists: Erik Eckholm (New York Times), Katherine Franke (Columbia Law School), Rusty Reno (First Things), Kevin Walsh (University of Richmond Law School), and Robin Wilson (University of Illinois College of Law). The panel description is below.

Over the past 15 years, the United States has seen a rapid change in attitudes toward same-sex marriage. That change has raised significant questions and challenges for various religious communities in the United States. Religious communities have responded in different ways—from endorsement to ambivalence to rejection. This year’s panel will explore these various reactions, including theological changes within religious communities, legal challenges advanced by religious communities, and legislative initiatives pursued by religious communities, as well as a host of other social, political, and legal responses to same-sex marriage in the United States. It will discuss how religious communities might, or might not, adapt to continuing social changes in the United States and how the United States will maintain its constitutional and cultural commitment to the religious freedom of these different communities.