FIRST AMENDMENT TRADITIONALISM.

• Author: Degirolami, Marc O.
• Position: Taking Stock of the Religion Clauses

ABSTRACT

Traditionalist constitutional interpretation takes political and cultural practices of long age and duration as constituting the presumptive meaning of the text. This Essay probes traditionalism's conceptual and normative foundations. It focuses on the Supreme Court's traditionalist interpretation of the First Amendment to understand the distinctive justifications for traditionalism and the relationship between traditionalism and originalism. The first part of the Essay identifies and describes traditionalism in some of the Court's Speech and Religion Clause jurisprudence, highlighting its salience in the Court's recent Establishment Clause doctrine.

Part II develops two justifications for traditionalism: "interpretive" and "democratic-populist." The interpretive justification is that enduring practices presumptively inform the meaning of the words that they instantiate. Generally speaking, we do what we mean, and we mean what we do. The democratic-populist justification is that in a democracy, people who engage in practices consistently and over many years in the belief that those practices are constitutional have endowed those practices with political legitimacy. Courts owe the people's enduring practices substantial deference as presumptively constitutional. The populist element in this justification is that traditionalism is a defensive interpretive method against what abstract principle in the hands of elite actors has wrought: intolerance, the corrosion of lived experience, and the distortion of text to mirror a particular class of contemporary moral and political views.

In Part III, this Essay compares traditionalism with originalism, reaching two conclusions. First, traditionalism's reliance on practices as presumptively constitutive of constitutional meaning is most distant from originalist theories that rely on abstract principle as constituting the meaning of text and that reject practice-based evidence as the equivalent of irrelevant "expected applications." It is closest to varieties of originalism that read text concretely. Yet traditionalist judges are not engaged in making guesses about "expected applications," but in making decisions about retrospective applications--drawing on old and enduring practices either to include within, or exclude from, a tradition the specific practice under review. Second, the Essay investigates the connection between so-called "original law" theories of originalism and traditionalism. Original law theorists argue that originalism is "our law" as a sociological and cultural fact. But traditionalism may be more "our law" than originalism in some areas within the First Amendment and outside it. If the positivist defense of originalism truly counts as a justification for any theory of constitutional interpretation (an issue on which this Essay takes no position), then it may support traditionalism as much as originalism.

INTRODUCTION I. THE TRADITIONS OF FIRST AMENDMENT LAW II. JUSTIFICATIONS FOR TRADITIONALISM A. Interpretive: We Do What We Mean, and We Mean What We Do B. Democratic-Populist: The People's Enduring Decisions III. COMPARING TRADITIONALISM AND ORIGINALISM A. Traditions and Retrospective Applications B. Is Traditionalism Our Law (of the First Amendment)? CONCLUSION INTRODUCTION

Traditionalist constitutional interpretation takes political and cultural practices of long age and duration as constituting the presumptive meaning of the text. In other work, I have described traditionalism, its influence across the domains of constitutional law, and possible explanations for and limitations of the method. (1) Traditionalism is, in fact, pervasive across the Supreme Court's constitutional doctrine.

This Essay probes traditionalism's conceptual and normative foundations. It focuses on the Supreme Court's traditionalist interpretation of the First Amendment in order to understand the distinctive justifications for traditionalism in constitutional law and the similarities and differences between traditionalism and originalism. The first part of the Essay identifies and describes traditionalism in some of the Court's Speech and Religion Clause jurisprudence. The Essay highlights traditionalism's recent salience in Establishment Clause doctrine, where it is gradually but steadily becoming the Court's preferred method in certain areas.

In Part II, the Essay uses this doctrinal deposit to discuss two justifications for traditionalism: "interpretive" and "democratic-populist." The interpretive justification is that while enduring practices may sometimes diverge from the meaning of text, they are a primary constituent of textual meaning. That is, enduring practices presumptively inform the meaning of the words that they instantiate. Generally speaking, we do what we mean, and we mean what we do. Indeed, we could not have a clear notion about what many words mean--and especially about how to interpret their meaning when it is unclear--without attending to the longstanding practices that illustrate their meaning. True, textual meanings and the practices instantiating them are not the same thing. It is possible for there to be a mismatch between our practices and the meaning of the words we believe illustrate them. But the presumptive state of affairs is that the text and the practices instantiating it do match, in constitutional law no less than in other areas such as contract law, with its doctrine of "practical construction." (2) If lawmaking is a rational activity, there is a presumptive concordance between our laws and our actions and practices in relation to them--between what we mean and what we do.

The democratic-populist justification is that in a democracy, people who engage in practices consistently and over many years in the belief that they are constitutional have endowed those practices with political legitimacy. Practices that do not endure, or that have never existed, lack that type of democratic legitimacy. While courts may, on traditionalist premises, strike down longstanding practices as unconstitutional, they owe the people's enduring practices substantial respect and deference as presumptively constitutionally legitimate. Enduring cultural and political practices reflect the people's judgments about what is consistent with their fundamental law. The populist element in this justification is that traditionalism is a defensive interpretive method against what abstract principle, in the hands of elite actors, has wrought on the Constitution. Traditionalism is motivated, in part, by the fear of the intolerance, of the corrosion of lived experience, and of the distortion of text to mirror a particular class of contemporary moral and political views, that constitutional interpretation dependent on abstract principle can unleash. It is an interpretive method for those who cherish embedded political and cultural ways of doing and being.

In Part III, this Essay compares traditionalism and originalism, reaching two conclusions. First, traditionalism's reliance on practices as presumptively constitutive of constitutional meaning departs from some, but not all, varieties of originalism. It is most distant from originalist theories that rely on abstract principle as constituting the meaning of text and that reject practice-based evidence as the equivalent of irrelevant "expected applications." It is closest to varieties of originalism that read text concretely. It differs from, but is compatible with, original meaning theories that take practices and "expected applications" to be "evidence" of meaning, or to be among the raw materials in the "construction zone." But traditions and the enduring practices that constitute them are not the same as "expected applications," though they are related to them. Traditionalist judges are engaged not in making guesses about "expected applications," but in making decisions about "retrospective applications"--drawing on old and enduring practices either to include the specific practice under review as within the tradition, or to exclude it as outside the tradition. 2.

Second, the Essay investigates the connection between so-called "original law" theories of originalism and traditionalism. Original law theorists defend originalism from a positivist, rather than a normative or conceptual, point of view. They argue that originalism is "our law" as a sociological and cultural fact, as a matter of our extant legal practice. But this positivist defense of originalism actually also supports traditionalist interpretation, at least in part. Traditionalism may be more "our law" than originalism in some areas within the First Amendment and outside it. This Essay does not adopt the positivist justification as an independent defense of traditionalism, resting on its conceptual and normative defenses in Part II. Rather, it explores the structure of the new positivist justification for originalism, arguing that if it truly counts as a justification for any theory of constitutional interpretation, then it may support traditionalism as much as originalism.

1. THE TRADITIONS OF FIRST AMENDMENT LAW

   No part of the Constitution has been interpreted traditionally by the Supreme Court as frequently as the First Amendment, and no part of the First Amendment more so than the Speech and Religion Clauses. In Speech Clause jurisprudence, traditionalism figures prominently in the doctrine of content-based exclusions from free speech protection, (3) public forum doctrine, (4) government speech, (5) and other areas. (6) As for the Religion Clauses, the Court has interpreted traditionally more frequently in its establishment cases than in its free exercise cases (7)--for example, when considering state-sponsored religious displays, (8) legislative prayer, (9) tax exemptions, (10) and more.

   This rapid doctrinal canvas already highlights the first crucial feature of traditionalist interpretation: a focus on political or cultural practices...