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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!

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.

Merry Christmas

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To all who celebrate, best wishes for a joyful holiday.

Around the Web This Week

Some interesting law and religion news stories from around the web this week:

“The ‘Alawis of Syria: War, Faith and Politics in the Levant” (Kerr & Larkin, eds.)

In November, Oxford University Press will release “The ‘Alawis of Syria: War, Faith and Politics in the Levant” edited by Michael Kerr (King’s College London) and Craig Larkin (King’s College London). The publisher’s description follows:

Throughout the turbulent history of the Levant the ‘Alawis – a secretive, resilient and ancient Muslim sect – have aroused suspicion and animosity, including accusations of religious heresy. More recently they have been tarred with the brush of political separatism and complicity in the excesses of the Assad regime, claims that have gained greater traction since the onset of the Syrian uprising and subsequent devastating civil war.

The contributors to this book provide a complex and nuanced reading of Syria’s ‘Alawi communities -from loyalist gangs (Shabiha) to outspoken critics of the regime. Drawing upon wide-ranging research that examines the historic, political and social dynamics of the ‘Alawi and the Syrian state, the current tensions are scrutinised and fresh insights offered. Among the themes addressed are religious practice, social identities, and relations to the Ba’ath party, the Syrian state and the military apparatus. The analysis also extends to Lebanon with a focus on the embattled ‘Alawi community of Jabal Mohsen in Tripoli and state relations with Hizballah amid the current crisis.

Krauthammer on Rescuing Syrian Christians

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Syriac Orthodox Christians in Damascus (Russia Today)

A nice piece by Charles Krauthammer in the Washington Post, on the efforts of Lord George Weidenfeld, a British Jew, to save some Syrian Christians. Weidenfeld was himself rescued by Christians in 1938. A British Protestant group brought him to London from Vienna, thus saving him from the Holocaust. Now, he says, he wishes to repay the favor. It’s a small effort, only 2000 families, but it’s something.

Notably, the US Government has declined to participate in Weidenfeld’s efforts, as they target Christians, as opposed to other religious minorities suffering in Syria. No doubt, this reticence comes from the by now well-known American policy of avoiding the appearance of sectarianism in the Mideast. Maybe some people in the Administration even think there would be some sort of Establishment Clause problem with helping Weidenfeld.

Both these concerns are silly. If the US Government were assisting only Christians in the Mideast, that could be a PR problem–for the US and for the local Christians. But the US is helping many religious minorities. Just last summer, it evacuated besieged Yazidis on Mt. Sinjar. So helping Weidenfeld’s group couldn’t be considered favoritism. Anyway, no matter what the US does, it will be seen in the region as a “Christian” power, however ironic that might seem to us here.

As for the Establishment Clause, I don’t know where to begin. Even if the Clause were to apply to such matters, the fact that the US Government distributes foreign assistance to all sorts of religious minorities in the Mideast, not just Christians, would surely satisfy any reasonable neutrality requirement, even the so-called endorsement test. The endorsement test asks whether government action makes non-adherents feel like political outsiders, second-class citizens. Would non-Christians in America really feel like outsiders because some small portion of US aid goes to help a charity rescuing a couple thousand Christian families from war-torn Syria?

Around the Web This Week

Some interesting law and religion news stories from around the web this week:

Around the Web This Week

Some interesting law and religion news stories from around the web this week:

Happy Easter

A Happy Easter to all who celebrate. Christ is Risen.