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).
Wednesday, February 3, 2016
I think that Perry Dane is one of the most thoughtful law-and-religion scholars out there today. Check out this new piece. Here's the abstract:
This article was originally presented during a conference on “Hosanna-Tabor and/or Employment Division v. Smith” at the Institute for Law and Religion of the University of San Diego School of Law. At its most practical, the article tries to make sense of the puzzle that that motivated the San Diego conference: the dramatic divergence in our law between doctrines of individual religion-based exemptions from otherwise-applicable rules, which are increasingly under conceptual and doctrinal attack, and religious institutional autonomy, which was resoundingly reaffirmed in Hosanna-Tabor as a principle of self-conscious recognition of the authority and juridical dignity of religious institutions.
More fundamentally, though, the article builds on two main themes. First, it argues that the three strands of the jurisprudence of law and religion -- free exercise, non-establishment, and religious institutional autonomy -- are rooted in a common theme or master metaphor: the existential encounter between the state and religion and the vision of religious communities and normative systems as distinct sovereigns. Second, it also emphasizes, the importance to the legal imagination of what I call “double-coding” -- the simultaneous, stereoscopic, and mutually transposing, affirmation of both radical principle and staid doctrine. Double-coding can appear in many places in the law, but it is particularly important in contexts such as the relation of religion and state in which the legal culture is most likely to retreat into a simple-minded solipsism about its own monopoly on authority and juridical dignity. But double-coding can only work successfully if legal doctrine, whether by conscious design or not, is open at least to pointing to something beyond itself.
The article calls on both these conceptual tools -- the master metaphor of sovereignty and the possibility of double-coding -- to try to understand the divergence between the fate of religion-based exemptions and religious institutional autonomy. The article suggests various explanations for that divergence, but focuses on the essentially contingent fact that, even during their heyday, judicial defenses of free exercise exemptions never adequately responded to some fundamental theoretical challenges and (unlike doctrines of institutional autonomy) rarely allowed for the power of double-coding to shape the legal imagination.
Over at First Things, my friend Prof. Stephanos Bibas has a review of this book, "The Decline of Mercy in Public Life," by Alex Tuckness and John Parrish. Bibas concludes with this:
Justice requires discretion as well as rules, and it can coexist with mercy.
When our laws deny this truth, they grow mechanistic and inhumane. Strenuously squelching arbitrariness simply drives discretion underground (say, from judges and juries to prosecutors) or forces everyone into the same Procrustean bed. Exalting rights and censoring empathy can be heartless toward criminal defendants and debtors. Government social programs risk crowding out charitable expressions of love that remind ourselves that the poor are our brethren and we are all our brothers’ keepers. And all of these rule-based, bureaucratic approaches miss opportunities to inculcate the virtue of mercy in our hearts as well as in our children’s. Government cannot mirror Christian teaching, particularly in a pluralistic country. But it can leave more room for Christian insights to leaven rules with mercy, compassion, and love.
Both the review, and the book, are recommended!
Monday, February 1, 2016
As National Slavery and Human Trafficking Prevention Month comes to an end, it seems apt to comment here at MOJ on this growing form of human degradation and the role we play in its existence. But what does this pressing social and moral issue have to do with Catholic Legal Thought? The relevance is more than the obvious fact that that it "strips victims of their freedom and violates the dignity of the human person created in the image of God." Given the intersection this form of exploitation has with criminal law, international law, labor law, government corruption, and other legal institutions; modern day slavery implicates the obligations of the Church and legal community to respond in a unique way. Failure to do so destines both the American Church and society to repeat a complicated and at times troubling history regarding slavery.
Today, things seem to be progressing at a different pace than the past. Just a few days ago, in an address to the Italian Committee on Bioethics, Pope Francis reminded us that "the ecclesial community and civil society meet and are called to cooperate, in accordance to their distinct skills." As I have written elsewhere, the Church has a unique role to play in combatting human trafficking. This crime knows no geographical boundaries. Therefore, where some governmental organizations are limited by geo-political realities, the Church has the ability to transcend these borders. Moreover, the Church is so often found working with the most marginalized people throughout the world. It is here that human trafficking flourishes. Consequently, the Church and its many affiliated organizations can be essential in both learning information about the manifestations of this most adaptable form of human exploitation, as well as responding to its victims most authentically. This work is exponentially more effective when done in partnership with other aspects of civil and government society.
It is no wonder, then, that the Church and others working in this area have recently highlighted a particular aspect of human trafficking. In a year in which there has been much discussion of refugees and conflict, the Church and other authorities have independently verified the human trafficking that is flourishing in areas of conflict. In November 2015, the Network of Christian Organizations Against Trafficking in Human Beings (COATNET) met in Paris to discuss the fight against human trafficking. Relying on research from Secours Catholic Caritas France, COATNET members recognized the many manifestations of human trafficking that arise out of conflict. As Caritas noted,
[w]hile some of the forms of exploitation…are specific to countries involved in direct conflict – child soldiering and organ trafficking to treat wounded fighters – the remaining types of trafficking in human beings have many points in common in conflict and post conflict periods."
Among the forms of exploitation beyond child soldiering, Caritas' research discussed collateral instances of trafficking. These include early and forced marriages for the purpose of sexual slavery – sometimes facilitated by kidnapping, but other times by families incorrectly believing that a child marriage may be a way for the child to escape exploitation of conflict. Caritas also shared in this research the reality of economic exploitation in a grey labor market by refugees fleeing conflict but unable to secure positions in the legal labor market. Not only do these regional Catholic organizations observe these phenomena throughout the world and inform our understanding of the forms of exploitation occurring on the ground, but they also confirm what they have labelled a "protection gap." That is to say, they note that identification and protection of victims is not considered and implemented during an emergency response to a conflict or refugee crisis.
This research was echoed by the State Department's recent release of its fact sheet entitled "Modern Slavery as a Tactic in Armed Conflict." Here, the State Department focuses on armed groups in Syria and Iraq utilizing modern slavery not as a consequence of conflict but, rather, as an actual tactic. Interestingly, each report analyzes how human trafficking in areas of conflict exceeds child soldiering. Both the State Department and Caritas discuss that the slavery of women and children as a particularly devastating technique to effectuate domination of vulnerable civilians.
Women and children in armed conflicts are particularly vulnerable to multiple abuses, including those involving human trafficking and sexual and gender-based violence.
The use of modern slavery as a tactic in the armed conflicts in Iraq and Syria is particularly alarming. The Islamic State of Iraq and the Levant (ISIL), as well as other armed groups and militias, continue to intimidate populations and devastate communities through unconscionable violence, fear, and oppression. ISIL has made the targeting of women and children, particularly from Yezidi and other minority groups, a hallmark of its campaign of atrocities. In the past year, ISIL has abducted, systematically raped, and abused thousands of women and children, some as young as 8 years of age. Many of the horrific human rights abuses that ISIL has engaged in also amount to human trafficking. Women and children are sold and enslaved, distributed to ISIL fighters as spoils of war, forced into marriage and domestic servitude, or subjected to horrific physical and sexual abuse. ISIL has established "markets" where women and children are sold with price tags attached and has published a list of rules on how to treat female slaves once captured.
The observations of the State Department are in sync with and informed by those religious organizations working with these populations throughout the world. Much like in the 19th Century, the faithful are called upon to respond to modern slavery. The battles against this injustice and indignity are challenging ones. However, opposition is one made all the stronger when religious institutions and actors embrace their opportunity to combat it and work with civil society to eradicate it.
Sunday, January 31, 2016
A friend forwarded an article that has appeared in a once noble Catholic publication that no longer deserves to be named, impugning the late Fr. Richard John Neuhaus. Upon reading it, a passage from Boswell's Life of Samuel Johnson came rushing to mind. Writing of the aftermath of Johnson's death, Boswell said:
Many who trembled at his presence were forward in assault when they no longer apprehended danger. When one of his little pragmatical foes was invidiously snarling at his fame, at Sir Joshua's Reynolds' table, the Revd. Dr. Parr exclaimed with his usual bold animation, "Aye, now that the old lion is dead every ass thinks that he may kick at him."
Today the Church celebrates the feast of St. John Bosco, a great saint and role model for educators.
Don Bosco distilled his "preventive method" of education to three elements: reason, religion, and kindness. Here is a recent description of that method.
Today's Saint of the Day feature at AmericanCatholic.org concludes with this apt quotation from G.K. Chesterton: "“Every education teaches a philosophy; if not by dogma then by suggestion, by implication, by atmosphere. Every part of that education has a connection with every other part. If it does not all combine to convey some general view of life, it is not education at all.”
Mary, Help of Christians, Pray for Us.
Saturday, January 30, 2016
This book review by Louis Markos at The Federalist piqued my interest in getting my hands on a copy of Michael Walsh, The Devil's Pleasure Palace: The Cult of Critical Theory and the Subversion of the West. Here's a quotation from the book in the review:
Chief among the weaknesses of Western man today are his fundamental lack of cultural self-confidence, his willingness to open his ears to the siren song of nihilism, a juvenile eagerness to believe the worst about himself and his society and to relish, on some level, his own prospective destruction.
The review's mention of the First Amendment and repressive tolerance reminded me more than a little bit of some of the themes explored in Marc O. DeGirolami, Virtue, Freedom, and the First Amendment. I don't know what Marc would say, though, about the call for renewed emphasis on heroism.
