Here's the second of my two posts on traditionalism and originalism in constitutional interpretation. This post discusses the 
Noel 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).
Thursday, January 28, 2016
I have the first of two posts up at the Liberty Law blog comparing originalism and traditionalism in constitutional 
interpretation. 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.
Monday, January 25, 2016
This story was both inspiriting and, for me, moving. It tells of a group of high school students who volunteer to serve as 
pallbearers for those who die alone, unremembered and without family. From the story:
The students, dressed in jackets and ties, carry the plain wooden coffin, and take part in a short memorial. They read together, as a group:
"Dear Lord, thank you for opening our hearts and minds to this corporal work of mercy. We are here to bear witness to the life and passing of Nicholas Miller.
"He died alone with no family to comfort him.
"But today we are his family, we are here as his sons.
"We are honored to stand together before him now, to commemorate his life, and to remember him in death, as we commend his soul to his eternal rest."
The student volunteers come from The Roxbury Latin School, and are shepherded by Assistant Headmaster Michael Pojman. RL happens to be my old high school. Mr. Pojman was my Chemistry teacher. Well done, alma mater.
Friday, January 15, 2016
Over at the Liberty Fund's Library of Law and Liberty, I am writing a series of posts that I'm calling collectively "Law
and Tradition," a set of reflections on tradition and law, with a special focus on 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.
Here's my first post, Tradition and the Constitutional Curator. And here's my second, Locating Traditionalism in Jurisprudence. A part of it concerns the issue of reason and tradition:
If I dress with a coat and tie every time I teach a class, that is not enough for my sartorial selections to be traditional. It is still not enough if it can be shown empirically that others before and after me have made the same choices. What makes the choice traditional is the social or cultural meaning of my dressing this way. The choice of dress evinces a social awareness of continuity with the past and is pursued intentionally, because of some normative power within the long-standing practice (because dressing with a coat and tie is neat, or because it is professional, or because it is elegant, or because predecessors whom I admire dressed in this fashion, and so on). I dress in this way intentionally to retransmit the past to the present because I believe there is value both in the choices of the past and in their continuity. This self-consciously and normatively chronic quality is probably not the only element comprising the traditionalist view; but it is an important one.
Some might say that the existence of any substantive reasons deprives the practice of dressing with a coat and tie of its traditionalism, because traditionalism implies that a belief or practice is transmitted mindlessly or without any reason. But this strikes me as altogether wrong. In an old essay, Samuel Coleman once gave the following example:
Turkish farmers leave the stones on their cultivated fields. When asked why, they say that is the way it has always been done and that it is better that way. In point of fact, it is. When U.N. agronomists, after considerable exhortation, persuaded some young Turks to remove the stones from their fields, their crops suffered. Apparently the stones help condense and retain the dew in the arid climate, but this was unknown. It may have been known to the originators of the custom, for there is evidence that it was known in biblical times. This apparent fact had been forgotten, while the practice persisted.
Was the practice of laying stones not a tradition when the reason for it was known and passed on? Did it become a tradition only when the reason was forgotten? Is it now no longer a tradition because of the adventitious intervention of the U.N.? The practice itself, as understood by the practitioners of it, is unchanged. No, says Coleman, “we would avoid all sorts of muddle if we did not speak of traditions being transmuted into non-traditions by confirmation of the proposition believed or the practice followed.” There can be, and often is, reason in tradition.
I'm pleased to announce that The Social Equality of Religion or Belief, edited by Professor Alan Carling, will be released in 
March 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.
Tuesday, January 12, 2016
It's now occurring at the Online Library of Law and Liberty. Professor Richard Epstein has the lead essay. Here is the most recent response by Professor Andrew Koppelman. It was an honor for me to respond to Professor Epstein in this essay. Professor Paul Moreno's will be the final response, and Professor Epstein will respond. Here's a bit from the beginning of mine:
Monday, January 4, 2016
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), our own 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.
