Tradition and the Constitutional Curator

It is uncommon today for people to argue for the retrieval of the beliefs and institutions of prior periods once they have been set aside. Even those few who do are not usually sanguine about the odds of retrieval. Particularly in intellectual circles, it takes a certain degree of rash temerity to make such arguments—and to risk the label of traditionalism or even reaction—in light of the overwhelming intellectual prejudices in favor of progress. Even the view that things ought to be maintained as they are, or as they have been until the very recent past, is generally discounted as benighted. Things ought to be changed—tinkered with or even substituted, but always improved.

In law, the normative force of traditionality is supremely out of vogue. It is generally believed to offer almost no resistance to arguments proceeding on the assumptions of the prevailing intellectual movements—those inclined toward efficiency, autonomy, equality, identity, rationality, and technocracy, for example. But the moral and cultural power of a past practice, arrangement, or belief, just in virtue of its endurance and past-ness, has dwindled to the vanishing point.

Can these statements be defended at a time when, in constitutional law, originalism has achieved an unprecedented degree of legitimacy? It is true that interest in history seems to be as high as it ever has been in constitutional law and scholarship. Yet here it may be helpful to distinguish between the desire to contemplate an ancient text in search of an abstract value or principle which can be applied in pure form to contemporary circumstances, and the commitment to tend and maintain the institutions of the past as an enduring continuity and a sustained reflection of a society’s legal customs and dispositions. The tradition-minded constitutionalist will be interested not only, and not primarily, in the fixed meaning of words at the period of their writing, but also, and much more, in the coherence and continuity of those meanings with the patterns, dispositions, and customs long before and after the writing. And he will want to apply the insight that Edward Shils once articulated about moral character to constitutional character: “Stable, well-formed characters are not their own creation, however large the part of deliberate self-discipline in their conduct. Their stability is the unshaken dominion of the pattern acquired in the past.”

Consider the icons of constitutional law: the founders and the innovators. The founders are the heroes of the originalists. They are the creators, the inspired geniuses, the timeless sages whose wisdom must be fixed, distilled, and bottled up for use today (I bracket the issue whether it is the founders’ words or their intentions that deserve these honors). The innovators are the heroes of the living constitutionalists. They are also creators and inspired geniuses, and their brilliance consists in updating the wisdom of the founders. In the collective imagination of originalists and living constitutionalists, these heroes share certain features. They are like the explorers of the Age of Discovery: what they bring to new shores–their values, aspirations, ideals, and other political and cultural desiderata–is more important either than what they inherited or what they find.

Almost nobody, however, idolizes or even expresses gratitude to those who have maintained constitutional institutions in much the same way as they received them—the constitutional curators. The originalist praises the founder, but rarely those who preserve and transmit what the founders made. The living constitutionalist praises the innovator, and complacency is the mildest charge he may make against those who are for standing pat.

And yet many of the virtues we admire in judges, particularly at levels below the Supreme Court, involve the maintenance and transmission of an inherited tradition. Judges in our system must much more frequently display the character of the curator—the care-taker—than that of the world-changing innovator. They must in some sense regard and pride themselves as espousers and transmitters of a legal tradition, and they must regard that as a very good thing. They must adhere in some deep way to the notion of doing well what has been done before. That commitment gives a normative charge to the statistical recurrence of generations of similar beliefs, practices, and institutions in the law. It becomes a willed transmission linking the generations of the dead with the generations of the living.

It is past time to include the constitutional curators among the founders and the innovators as archetypes in our own constitutional tradition.

Marc DeGirolami

Marc O. DeGirolami is a professor at St. John’s University School of Law, where he is associate director of the Center for Law and Religion and the co-leader of The Tradition Project.

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  1. gabe says

    ” In the collective imagination of originalists and living constitutionalists, these heroes share certain features. They are like the explorers of the Age of Discovery: what they bring to new shores–their values, aspirations, ideals, and other political and cultural desiderata–is more important either than what they inherited or what they find.”

    Certainly true for the living constitutionalists; yet are we, perhaps, overstating the ‘originality” of the Founding “explorers”? So much of what the Founders bequeathed us was a respect for and / or an extension of a rather long tradition of constrained liberty that their British forebears bequeathed to them. In a certain sense, the American Revolution was not a revolution but a rebellion and one that sought to *conserve* that which appeared to be in danger of departing too greatly from tradition.

    Just a thought!!!!

  2. says

    The religion clauses in the first amendment to the constitution for the USA should be revised to protect thought, as personal duty and civic responsibility, rather than religion, an institution that bemuses the people and begrudgingly yields to physics. Physics is energy, mass and space-time from which everything emerges, including sophistry.

    I write to collaborate for reform toward a culture of personal liberty with civic well-being (CPLwCWB). Well-being entails fidelity to physics, self, family, neighbors, other people, and the land, perhaps respectively, keeping hopes for souls a private matter. Collaboration entails first, agreeing on a value and how to recognize its fulfillment, then candidly working toward success for each person living the same years in the same land.

    I would be happy to consider a collaborative alternative to CPLwCWB for mutual value.

    The signers of the preamble to the draft constitution for the USA, the 70% of delegates who affixed their names on September 17, 1787, attempted but failed to open a door to CPLwCWB. Their leader, George Washington, articulated CPLwCWB, his way, in his farewell address of June 8, 1783. Washington did not consider his religion among the four essentials for civic morality, and I quote:

    “There are four things, which I humbly conceive, are essential to the well being, I may even venture to say, to the existence of the United States as an Independent Power: An indissoluble Union of the States under one Federal Head; A Sacred regard to Public Justice; The adoption of a proper Peace Establishment; and The prevalence of that pacific and friendly Disposition, among the People of the United States, which will induce them to forget their local prejudices and policies, to make those mutual concessions which are requisite to the general prosperity, and in some instances, to sacrifice their individual advantages to the interest of the Community.”

    If we respond to Washington, we may value referring to him as the father of our country. (There is a companion statement about Jesus, but I leave that to Ralph Waldo Emerson’s “Divinity School Address,” 1838, Harvard.)

  3. nobody.really says

    It is past time to include the constitutional curators among the founders and the innovators as archetypes in our own constitutional tradition.

    In other words, it is past time to honor those who honor past time.

  4. z9z99 says

    Yet here it may be helpful to distinguish between…

    Ah, yes. Distinctions. I look forward to more of Professor DeGirolami’s thoughts on tradition, and am particularly interested in identifying the distinctions that naturally arise from such discussions. Those who seek to venerate tradition and those who seek to bash it will often elide such concepts as tradition, folklore, taboo, custom, institutions, superstition and sacrament to either enhance or discredit the place of tradition.

    As to the present post, I hope the good professor will expand on why exactly the curators of tradition are praiseworthy. One may note that the word tradition shares the etymological root with “trade” as well as “traitor.” (trans + dare, to give across). Tradition can give many things, good as well as bad; it may be a conduit of values, virtue, wisdom and hard-won experience, as well as prejudice, senescence, and willful ignorance. I hope that Professor DeGirolami will let us know the history and reasons for survival of various traditions, and what benefit there is to reviving dormant ones. I note a hint of Chesterton’s description of tradition as “democracy of the dead” in the penultimate paragraph above. I would like very much to read an analysis of when this is a good thing, and when it is otherwise.

  5. gabe says

    Z:

    I prefer Burke to Chesterton.

    Edmund Burke:
    “Society is a contract between the past, the present and those yet unborn.”

    The question is: How (in) flexible are the terms of the contract?

    From the Edmund Burke Institute:
    ” And therefore, we seek good government by championing policies that preserve the best of the past, accommodate the new conditions of the present, and will be embraced by the citizens of the future…”

    For Burke, prescription is the proper mechanism for achieving manageable change. In short, balance – moderation, as in all things – so yes, I also would be interested in hearing what the good professor has to say in this regard. For without the ability (inclination?) to negotiate the (stale) terms of the contract, one is often tempted to simply break it. The key may be to keep the structure of the contract while attending to ancillary, if irksome, clauses of it. this is difficult but not impossible.

    But, of course, we, nowadays, have the Black Robes and the Federal (and State level) Administrative State to redefine our (new) obligations – so why bother, eh?

    So which do we prefer: the “democracy of the dead” or the tyranny of the expert ethicists of the present?

  6. Nancy says

    “The tradition-minded constitutionalist will be interested not only, and not primarily, in the fixed meaning of words at the period of their writing, but also, and much more, in the coherence and continuity of those meanings with the patterns, dispositions, and customs long before and after the writing.”

    True, for the traditional-minded constitutionalist recognizes that one cannot separate the spirit of the law, from the letter of the law, without changing the very essence of the law.

    “Tis Love that makes the World go round”; “all things are passing, only Love remains”.

    • says

      Before love comes awareness, communication, consideration, empathy, appreciation and collaboration. Otherwise, love is empty, and that is what we observe.

      I do not pretend to be correct about this, yet state the possibility that it approaches the objective truth.

  7. Nancy says

    Love Was In The Beginning, Is Now, and Forever Will Be. The Truth of Love Exists, regardless of whether or not you acknowledge the existence of God, The Ordered Communion Of Perfect Love, The Most Holy And Undivided Blessed Trinity.

    If Love was empty, it would not be Love, to begin with;)

  8. Nancy says

    For those who do acknowledge the existence of Love, and thus The Laws of Nature and Nature’s God, they recognize that Love exists in relationship.

    http://www.usnews.com/news/articles/2015/06/26/9-need-to-know-quotes-from-the-obergefell-v-hodges-opinions

    “Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.”-Justice Kennedy

    Every Loving relationship becomes greater than just the persons existing in a relationship of Love. This does not change the fact that what separates marriage from every other form of Loving relationship, is the ability and desire to exist in relationship as husband and wife. The marital act is Life-affirming and Life-sustaining, and can only be consummated between a man and woman, united in marriage as husband and wife. This truth can be known through both Faith, and reason. Marriage cannot be and not be, existing in relationship as husband and wife, simultaneously. I do not pretend to be correct about this truth because truth is not a matter of opinion.

  9. says

    It seems to me human love comes from one human being to another without interference by laws, ideologies, philosophies, bodies, brains, words or other impositions. Love is a person to person action that derived from person to person possibilities.

    In-love is a two party action that derived from the possibility of being in-love. In-love is a rare partnership in possibility, and when it happens, most of humankind may civically celebrate if invited. Those who cannot celebrate partners being in love perhaps will contemplate appreciation for human beings.

    Application of the term “marriage” could be alright for same-sex partners to codify mutual responsibilities. However, in most states a marriage license entails obligations by a conceiving, married couple to their progeny. The obligations are civilly recorded on the birth certificate.

    Since same-sex partners cannot produce “their progeny,” the specifics of state marriage licenses respecting progeny are not applicable. The pretense of applicability of the civil marriage license negates, by adult contracts, the dignity and equality of children to stay with the couple that conceived him or her, whether directly or by technologies.

    Same-sex partners can procreate through civil contracts, such as ménage à trois, in vitro fertilization in surrogate motherhood or fatherhood, and either male surrogate mother or female surrogate father. These arrangements deny the dignity and equality of the person made subject to the contracts: the intended child.

    I think these are the issues you are staining about, and they have nothing to do with religion but everything to do with civic morality, which derives from physics, in this case evolutions that emerged from physics including biology, psychology, ethics, law, lies, and fidelity.

    I see no evidence that the US Supreme Court cares a whit for the dignity and equality of a child or a child to be born. However, I do not know.

  10. Nancy says

    “Love is patient, love is kind. It does not envy, it does not boast, it is not proud.”

    True, but that does not change the fact that any act, including any sexual act, that does not respect the inherent personal and relational Dignity of the human person, as a son, daughter, brother, sister, husband, wife, father, mother, is not, and can never be, an act of Love.

    • says

      A person who is in love with a person of the same sex is in love, whether it is platonic love or not.

      Any dignity issues with related persons are then matters of possibilities. Neither the facts of those relations–father-son, brother and sister, and so on–change nor does love change: Love is still “patient, love is kind. It does not envy, it does not boast, it is not proud.” Among the relatives, love abides.

      • gabe says

        I am told that the citizens of Coventry are very LOVING – why not go visit them and leave us meanies alone?

        What is this devolving into – some inept attempts at poetry and discourses on love;

        • says

          gabe, I thought your mind’s folly would speak to you, but it seems too meek to penetrate your person’s arrogance.

          I feel constrained to share my view of “us meanies.”

          I am reminded of the loyalist in 1784, who, watching the defeated subjects sail for England had a final, heartfelt exchange.
          The departing said, “Friend, despite our war losses under father, son and holy ghost, we are driven by the rule of the Dead to maintain our loyalties to the king. Hear our Christian plea, and return home with us.”
          The reluctant responded, “It is true that prayers under nature and nature’s god defeated prayers under the trinity, but my loyalty to the law of the homeland is unwavering. That godless speech by George Washington claiming the citizens should govern the land and think freely to establish civic morality must be defeated. I will remain and defend the first principles recorded for all time by Burke, Blackstone and Smith.”
          In 1788, the reluctant visited the departed, at home in England, and utilized his thrown room. There, opposite the thrown, at eye level, hung a portrait of that stern-faced George Washington. The reluctant asked the departed why the portrait in so private a place.
          The departed responded, “Whether my problem is prayer, psychology or biology, staring at that portrait scares the shit out of me.” (Anonymous)

          It is not too late to reform “us meanies”—let them depart.

    • says

      I have been busy, but wanted to come back to this post and address it. I learned a perspective I would debate, and that is the Mark 10:6-8 separation of each spouse from his or her parents. That idea conflicts with the preamble’s assertion of working for the goals therein for the sake of personal posterity: children, grandchildren and beyond. It also conflicts with physics, wherein it is clear that most spouses need family support when they become parents, and some grandchildren perceive psychological maturity through their grandparents.

      However, when I got to “In this statement we speak as Christians to Christians, using the language of the faith,” I was discouraged from further study. I do not profess the faith.

      Moreover, I work to persuade Christians to consider assimilating as A Civic People of the United States rather than alienating by falsely labeling the preamble to the constitution for the USA a “secular” sentence. It is a civic sentence–takes no sides in religious issues–leaves religion as a private matter. Neither opinion-based ethics nor religion, a subset of opinion, can be the bedrock on which a people can establish civic morality.

      Consider George Washington’s four pillars in his farewell address of June 8, 1783. Nothing about religion or English common law–only about the people collaborating.

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