Comparing Traditionalism and Originalism

In my first post of this series on law and tradition, I said that though a judicial opinion might exhibit both originalist and traditionalist features, these are nevertheless distinct interpretive categories. In this post and the next, I will briefly explore the similarities and differences in two opinions decided by the Supreme Court in 2014—Town of Greece v. Galloway and NLRB v. Noel Canning—both of which are traditionalist but not (necessarily) originalist in method (though Town of Greece is complicated). My claim is not that these decisions are correct; only that each exhibits a distinctive interpretive approach that is intentional about maintaining coherence and continuity with very long-standing patterns of legal and cultural practices and that each determines constitutional meaning primarily on the basis of practices rather than principles.

Town of Greece v. Galloway concerned the constitutionality of legislative prayer. A municipality in northern New York began its town meetings with a prayer given by members of local congregations. A prior decision, Marsh v. Chambers, had concluded 30 years earlier that legislative prayer at the state level was compatible with the Establishment Clause. There were ways to distinguish Marsh, but the Court in Town of Greece reaffirmed it and the constitutionality of legislative prayer in rejecting a new Establishment Clause challenge.

By far the most prominent theme in Justice Kennedy’s opinion for the Court is the role of tradition in validating the practice of legislative prayer as a constitutional matter. That point is repeated no less than six or seven times in several contexts. The practice is described by the Court as “part of our expressive idiom” and our “heritage.” Kennedy writes that “Marsh is sometimes described as ‘carving out an exception’ to the Court’s Establishment Clause jurisprudence,” inasmuch as no “tests” were applied in Marsh, but in reality, “[t]he Court in Marsh found those tests unnecessary because history supported the conclusion that legislative invocations are compatible with the Establishment Clause.” It is with tradition, rather than with abstract tests, Kennedy seems to suggest, that all Establishment Clause analysis begins, and, under certain circumstances, ends. And the usual tests, including the much-maligned test in Lemon v. Kurtzman and the endorsement test, are barely mentioned by the Court. Town of Greece was an unusual decision inasmuch as everybody on the Court accepted something like the following framing: “The Court’s inquiry, then, must be to determine whether the prayer practice in the town of Greece fits within the tradition long followed in Congress and the state legislatures.” No member of the Court resisted the traditionalist frame or opined that this was an inappropriate or wrong-headed sort of inquiry.

How is this approach different from originalism? Here things quickly become complicated because of the broad variety of originalist interpretive approaches. Shortly after the decision 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.

My next post will examine the Noel Canning case, in which originalism and traditionalism are more directly at odds.

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. says

    “That is because the traditionalist is more focused on practices than meanings when it comes to constitutional interpretation.”

    Often times the reason a practice becomes a tradition is because there is no evidence to suggest that a particular practice is not consistent with the spirit of the law. This does not change the fact that some times, someone who claims to be an originalist, but does not have sufficient evidence that a particular traditional practice is unreasonable, will attempt to change the meaning of the spirit of the law.

  2. says

    I appreciate Professor DeGirolami’s analysis and would like to share some considerations from a civic people of Baton Rouge, LA.

    When Governeur Morris led the committee of forms in the arduous task of organizing the draft constitution for the USA, they represented a civic people as “We the People of the United States,” indicating all the people in each of the thirteen states (even though Rhode Island had no delegates present), who committed to the goals and action stated in the preamble. Of the 55 delegates, only 39 signed the draft. Some delegates refused to express agreement with the document. Thus, the totality “We the People of the United States” was itself a possibility, not a reality.

    The convention was a consequence of the war for independence from England, so, logically, an independent form of government was called for. At issue were monarchy, confederation of states, and governance under a god. I ignoring the help of France at Yorktown, nature and nature’s god seemed to help the continental army defeat the king’s trinitarian god.

    A motion for daily prayer during the convention was not seconded, so from May, 1787 until May, 1789, there was no legislative prayer in federal leadership. Some state legislatures continually conducted prayer. During the state ratification conventions, with a free population 99% factional Protestant, few unitarians, and 1% Catholic, there was little if any debate about allegiance to the Declaration’s “Nature and Nature’s God,” victor in war.

    During those two years, with a trinitarian population, and little support for a unitarian god, popularism and fear of losing inalienable personal rights imposed on ratification the commitment to a Bill of Rights. My review of state constitutions existing in June, 1788, gave grounds to think there would not have emerged nine states ratifying the draft of September 17, 1787: a Bill of Rights was inevitable, despite the literal preamble (see Federalist 84). Less obvious is the furtherance of English common law.

    The first Congress instituted legislative prayer in May, 1789, so that elected officials could appear pious, following the practices of English and other European kings and queens (all kings are created equal). Politicians partnering with priests is a Chapter XI Machiavellian practice: The partnership lives high on the hog, picking the people’s pockets, and the people neither rebel nor leave, patient for their personal gods to rescue them from the partnership (Nicolo: it would take a fool to oppose this practice).

    The 1787 Philadelphia convention was a conversation for a possible future of personal liberty with civic well-being (PLwCWB), regardless of the injustices that prevailed at the time, such as slavery and oppression of women. Civic well-being was defined by George Washington on June 8, 1783:

    There are four things . . . essential to the well being . . . 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.”

    I would be happy to collaborate on Washington’s definition.

    The signers’ presentation of the possibility is in the literal preamble, a civic sentence that could serve in 2016, 229 years later if read and used by the people. However, the people have never considered that you must both earn your living and manage civic connections in order to have PLwCWB.

    With this historical background, our work is aimed at persuading 70% of inhabitants to establish A Civic People of the United States.

    We feel it is important to recognize the historical compositions of inhabitants of this land (not England or other parts of Europe) in exploring how to establish PLwCWB. Thus, before about 1565 in the south and 1606 in the north, the inhabitants were mostly indigenous. European colonialism and the Atlantic slave trade dominated until 1808. In 1790, only 6% of free inhabitants could vote, whereas today 100% of free citizens may vote. Between 1790 and perhaps 1840 much work was done to separate church properties from government properties, as related by Mark McGarvie in One Nation Under Law, 2004.

    Scholars should be specific. The founding era begins perhaps in 1765 when British subjects in Great Britain were happy to tax British subjects in the colonies for the empire’s use; changed in 1776 when independence was declared by 40% of inhabitants with 20% loyalists and 40% pacifists; changed again in 1783 when independence was won and thirteen states found themselves independent; became a conversation for possibilities when the signers on September 17, 1787 came forth from delegates sent to strengthen the Articles of Confederation; regressed on June 21, 1788 when ratification required a Bill of Rights to be negotiated by the first Congress. Adaptation of English common law to USA’s federalism was underway, and Blackstone hampers progress toward the signers’ possibilities. Legislative prayer to factional Christian gods was re-instituted in May, 1789, and the civic contract stated in the civic preamble was obfuscated with the label “secular.”

    I cannot speak for A Civic People of the United States, because this idea has not been presented for collaboration. However, I think “founders” should be clarified by the writer. The signers on September 17, 1789, started a conversation for the possibility of PLwCWB. There has been much progress toward that end, but the USA seems further from the possibility than in 1975, when my children attended public school. Part of the problem is that scholars do not specify what they mean by founders and thereby confuse their readers if not the thinking that produces their writing. (An entity labeled “gabe” does not like statements like that, so it attacks the writer rather than the idea. I have not learned how to use the term “ad hominem” without feeling I am attacking the attacker.)

    It seems self-evident in 2016, that, the USA is advantageously diverse yet tragically uses the diversity to cause dysfunction. The population is only 70% factional Christian (largest faction Catholic, around 21%, and perhaps the most powerful faction black church at 6.5%), with 23% non-theist. However, what’s needed is the recognition that most individuals would like PWwCWB, which is possible by working for a culture of a civic people. Borrowing from Abraham Lincoln in 1861, “Why should there not be a patient confidence in the ultimate justice of [a civic] people? Is there any better or equal hope in the world?” By establishing PLwCWB, the USA could lead the world to peace.

    We think both the preamble’s totality and Abraham Lincoln’s totality, the people, diminishes the possibility for PLwCWB, by presenting a utopia as the goal. Christianity thinks everyone should be saved, and black church thinks evidence shows they will overcome, so good people work against each other. Make no mistake: they don’t pray to the same god. Our goal is to establish 70% of “We the People of the United States” as A Civic People of the United States. Further, the goal is 70% of members of every real-no-harm factional association to work for PLwCWB.

    We think the possibility of a culture of a civic people is such good news it will happen as fast as the idea PLwCWB spreads. I write in this forum to find people who want to collaborate for the possibility of a future with justice and think they are present.

  3. z9z99 says

    Okay, I’m kinda with you, but you don’t think you have clearly distinguished principles and practices. When you write

    For the traditionalist, practices (not principles) are not “merely evidence” or “some evidence” or even “strong evidence” of meaning. Meaning is constituted by practices

    why could one not also say “Principles are constituted by practices?” or more directly “Tradtions survive because they embody principles?”

    • gabe says

      Z:

      Yep and Here is another one”

      Or one could say: Principles are naught more than a restatement of traditional practice.

      I often think that much commentary on “constitutional” principles / interpretations forget that it was a respect for traditional practices (Rights of Englishmen and all that, matey) that *constituted* both the opposition to the Crown-in-Parliament in 1776 and the very document itself.

      I think when we view the constitution from the perspective of a “radical departure” from the past or a radical exigesis (DOI) on natural rights, etc, we obscure the obvious fact that the Colonists were traditional and they crafted an instrument both informed by those traditions and one that sought to sustain those traditions.

      Thus, “pure” textualism limits itself to the vagaries of language and obscures the “decisions” that were made to preserve what was the traditional norm.

      Although, I must say as The Beaver (above) is becoming a *tradition* here, I may have to rethink my support for tradition.

  4. N.D. says

    http://originalismblog.typepad.com/the-originalism-blog/2015/04/originalism-and-same-sex-marriage-revisitedmichael-ramsey.html

    One can know through Faith and Reason, Tradition and Originalism, that giving personhood to sexual desire/inclination/orientation, does not change the fact that, regardless of Race/Ancestry, human persons exist in relationship as sons, daughters, brothers, sisters, husbands, wives, fathers, mothers, and thus it is unreasonable to suggest that it is sex discrimination to limit marriage to those who have both the ability and desire to exist in relationship as husband and wife. In fact, if it were possible for marriage to consist of two men joined together as husband and husband, or two women, jjoined together as wife and wife, thus discriminating against either a husband or wife, and if children are involved, a father or a mother, that would be a clear case of sexual discrimination, even when, with Time, We The People are replaced with a new and different set of People. Truth does not evolve.

  5. N.D. says

    This is not to say that precedent is always devoid of error, but rather that truth begets truth, while error begets error:

    http://www.ncregister.com/daily-news/now-more-than-ever-christians-must-stand-with-those-who-stand-for-life/

    In their zeal to prosecute Mr.Daleiden, both the prosecutor and The Grand Jury, through their indictment for the purchase and sale of human organs, have demonstrated willful misconduct for failing to prosecute, those who, with full knowledge, that human body parts can only come from the body of human persons, and that human body parts cannot be removed from human persons, including the sons and daughters of human persons whose lives were intentionally destroyed, without their consent. No doubt, this omission, will cause further injury to human persons thus making the prosecutor and The Grand Jury participants in contributing to the guilty acts, with full intent that said acts be carried out, including the destruction of the son or daughter residing in their mother’s womb, and the removal of the human body parts of a human person, a son or daughter, without their consent and obviously, a violation of their inherent Right to Life, upon which their inherent Right to Liberty and The Pursuit of Happiness depends.

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