THE TRADITIONS OF AMERICAN CONSTITUTIONAL LAW.

• Author: DeGirolami, Marc O.

This Article identifies a new method of constitutional interpretation: the use of tradition as constitutive of constitutional meaning. It studies what the Supreme Court means by invoking tradition and whether what it means remains constant across the document and over time. Traditionalist interpretation is pervasive, consistent, and recurrent across the Court's constitutional doctrine. So, too, are criticisms of traditionalist interpretation. There are also more immediate reasons to study the role of tradition in constitutional interpretation. The Court's two newest members, Justices Neil Gorsuch and Brett Kavanaugh, have indicated that tradition informs their understanding of constitutional meaning. The study of traditionalist interpretation seems all the more pressing to understand certain possible jurisprudential moves in the Court's future.

This Article concludes that when the Court interprets traditionally, it signals the presumptive influence of political and cultural practices of substantial duration for informing constitutional meaning. Traditionalist interpretation is thus constituted of three elements: (1) a focus on practices, rather than principles, as informing constitutional meaning; (2) a practice's duration, understood as a composite of its age and continuity; and (3) a practice's presumptive, but defeasible, interpretive influence. Traditionalist interpretation's emphasis on practices that are given tangible form in a people's lived experiences suggests that it is preferable to speak about politically and culturally specific traditions rather than an abstracted concept of tradition. Hence, "the traditions of American constitutional law. "

This Article identifies traditionalist interpretation as its own method; shows its prevalence and methodological consistency across the domains of constitutional interpretation; isolates and examines its constituent elements, comparing them against other prominent interpretive approaches; and infers and explains the justifications of traditionalist interpretation from the doctrinal deposit. While there may be some irony about a claim of novelty in an article about tradition, what this Article identifies as new is not the invocation of tradition as such, but the isolation of a recurrent and consistent method--traditionalist interpretation--adopted by the Court across its interpretive work. It aims to bring to light an overlooked and yet frequently used interpretive practice, and to understand its structure, situation, and purpose within the Court's constitutional doctrine.

INTRODUCTION

This Article identifies a new method of constitutional interpretation: the use of tradition to constitute constitutional meaning. Traditionalist interpretation has not gone altogether unnoticed. Scholars have spoken of "[h]istorical [g]loss" (1) or "[l]ongstanding custom and tradition" (2) as relevant to the meaning of specific constitutional provisions. Some have identified the "liquidation" of constitutional meaning over a period of time as a method advocated by James Madison. (3) Others have doubted that tradition should ever be an interpretive argument or justification at least as to certain issues. (4) And still others have explored longstanding arrangements or practices in other disciplines such as administrative law. (5)

But no one has studied what tradition signifies across the Supreme Court's interpretation of the Constitution. No one has examined how it might differ from other interpretive techniques (such as reliance on text, history, prudential considerations, moral principle, or precedent). There has been no comprehensive account of the Court's use of tradition or of its reasons for interpreting traditionally.

This Article provides that account. It studies what the Court means by invoking tradition, and whether what it means remains constant across the document and over time. It shows that traditionalist interpretation is pervasive, consistent, and recurrent across the Court's constitutional doctrine. So, too, are the Court's criticisms of traditionalist interpretation. There are more immediate reasons to study the role of tradition in constitutional interpretation as well. The Court's two newest members, Justices Neil Gorsuch and Brett Kavanaugh, have indicated that tradition informs their understanding of constitutional meaning. (6) The study of traditionalism therefore seems all the more pressing to understand certain likely moves in the Court's present and future.

This Article concludes that when the Court interprets traditionally, it signals the presumptive influence of political and cultural practices of substantial duration for informing constitutional meaning. Four clarifications, to be pursued later at greater length, may be useful now:

(1) Traditionalist interpretation focuses on practices, rather than abstract principles or general tests, as constituting constitutional meaning. The emphasis on practices that are given tangible form in a people's lived experience suggests that it is preferable to speak about politically and culturally specific traditions rather than an abstracted concept of tradition. Hence, "the traditions of American constitutional law."

(2) What is of interest are political and cultural practices, not judicial precedents or doctrines. Distinguishing the former from the latter marks the difference between traditionalist and precedential interpretation.

(3) A tradition's duration--combining two dimensions of age and continuity--may be understood metaphorically by imagining a ski slope. The slope may be long or short; and it may be smooth or sparse. Sections of the slope that are smooth may be densely packed or coated only with a thin layer. A slope that is too short, or too sparse, cannot be skied. Likewise, a tradition that is too short, or too sparse, lacks interpretive authority.

(4) The interpretive influence of a tradition is presumptive and may be overcome by other considerations. For example, a tradition is authoritative only if it is consistent with constitutional text. Very powerful moral or prudential arguments may overcome the presumption in favor of a tradition as well.

In Part I, this Article discusses various established methods of constitutional interpretation, identifies traditionalist interpretation as its own method, and distinguishes it from others. Part II highlights areas in which traditionalist interpretation has been most powerful in informing constitutional meaning. The survey in Part II is not exhaustive and does not list unreflectively every instance of the Court's use of the word "tradition" or its cognates. Instead, this Article focuses on areas that reveal the Court's use of a consistent, multipart interpretive method across the constitutional domains. In Part III, this Article distills three features of traditionalism that emerge from the doctrine: (1) political and cultural practices; (2) duration, understood as a composite of age and continuity; and (3) presumptive, but defeasible, interpretive influence. It also touches on the relationship of traditionalism to prominent varieties of originalism and nonoriginalism. (7) Part IV addresses the "why" of traditionalism--the question of its normative point or purpose. It extracts and synthesizes various purposes, explanations, and justifications from Part II's doctrinal discussion. It concludes that traditionalism reflects the views that actions sometimes speak louder than words--at least words whose meanings are underdetermined; that the national takes priority over the universal; and that constitutional interpretation, rather than constitutional adjudication, is its proper domain.

This Article unearths certain interpretive practices that reflect reasons and values immanent in the Court's jurisprudence, and it describes those reasons and values as the Justices see them. (8) Future work can then better explore such questions as "do we like what we see?" or "when is traditionalism justified and when isn't it?" (9) Other projects may follow as well, including comparisons of traditionalism with other methods, (10) or studies measuring the strength of the presumption in favor of traditions in various textual contexts and what that might suggest about traditionalism's interpretive power.

There may be some irony about a claim of novelty in an article about tradition. But what this Article identifies as new is not the Court's invocation of tradition, but the isolation of a recurrent and consistent method--traditionalist interpretation--reflecting recurrent and consistent, even if infrequently articulated, justifications. It brings to light an overlooked and yet frequently used interpretive practice, and it aims to understand its structure, situation, and justification within the Court's constitutional doctrine.

1. TRADITIONALISM AS AN INTERPRETIVE METHOD

   In his seminal study of constitutional methodology, Philip Bobbitt proposed a typology of six distinctive "archetypes" of constitutional argument: historical, textual, prudential, structural, doctrinal, and ethical. (11) Bobbitt's premise was that any interpretive theory of the Constitution depends upon actual interpretive practice. Thus, historical argument involves "the original understanding of the constitutional provision to be construed." (12) Textual arguments are claims concerning the ordinary meaning that people give the Constitution's words. (13) Arguments from "prudence" authorize the balancing or weighing of the social costs and benefits of any particular decision. (14) Structural arguments are "inferences from the existence of constitutional structures and the relationships which the Constitution ordains among these structures." (15)

   Doctrinal and ethical methods merit slightly more discussion because they relate more closely than the others to the inteipretive method explored in this Article. Doctrinal arguments derive constitutional meaning "from those principles which precedent develops."...