History and Tradition in Classical English Constitutionalism

A Comment on Recent Scholarship

This is a lightly edited version of remarks I gave at the inaugural Legal Philosophy & Constitutional Theory Junior Scholars Conference at Georgetown Law. I was invited to provide commentary on a fascinating paper titled “Some Traditional Questions about “History and Tradition”” by Professor Jonathan Green of the Sandra Day O’Connor College of Law. I highly recommend the paper to our readers.

I.

The question Professor Green’s paper asks is: “if the Constitution’s legal content resides in the original meaning of its terms, how might a tradition of political practice that arose long after a constitutional provision’s adoption be legally relevant?” (Green, p.1)

The answer to this question for Green is that, if you take the object of interpretation to be discerning the reasoned choice the framers and ratifiers enacted into law, then a serious examination of the context of the US Constitution’s enactment should direct your attention beyond the promulgated text of the Bill of Rights and its semantic meaning and toward “pre- and post-enactment tradition.” (ibid)

And the reason you need to direct your attention to pre and post enactment tradition is because the legal and political elites of the founding generation conceived of the nature of rights, and how they related to positive law, in a manner highly distinct from their equivalents today. Simply put, they did not see rights as counter-majoritarian legal trumps with a highly determinate content.

Green follows legal historians like Professors Jud Campbell and Jonathan Giennapp in arguing that, when read in its rich socio-historic context, the original meaning of a great sweep of the Bill of Rights – including the first and second amendments – can be conceived of as positive law provisions that were declaratory of pre-existing rights drawing their content from natural law principles/customary law.

Such provisions in Professor Campbell’s words “identify existing rights (either natural rights or customary rights), with the text serving as a placeholder for those underlying concepts”.

To be sure, the Bill of Rights includes plenty of rules that were more detailed, concrete, rule-like specifications of the requirements natural or customary law; for instance, the right to a trial by jury and the ban on ex-post facto laws. Such rights already had that content prior to their enumeration.

But many other parts were declaratory, and such provisions were understood to, of necessity given that the principles being recognized were under-determinate, leave it to the people themselves, whether through the development of customary law or the legislature, to make further determinations about how to respect and vindicate those principles, while at the same time ensuring the conduct they singled out for special attention did not undermine the public good; the public or common good being the whole point of governmental authority and rights.

Again to quote Campbell: “Founding Era constitutionalism allowed for restrictions of natural liberty to promote the public good— generally defined as the good of the society as a whole.”

On this account – in cases following Bruen and Rahimi, what looking at historical regulatory analogs should do, then, is to illuminate how the founding generation and those that came after, understood how declared rights could be permissibly regulated and ordered to the public good. Historical practices, says Green, are “probative” of the “principle[s]” which were originally understood to properly order the exercise of these rights (Green, 1).

Historical examples of a right being regulated can offer judges assessing the constitutionality of a modern regulation, a suite of case studies and heuristics about how regulatory measures can successfully orient the exercise of the rights to the public good, while not nullifying the principles behind the declaratory provisions.

To paraphrase Judge Paul Matey, one of the most thoughtful and classically minded judges on the bench today, the “insights and understanding” of many years of a well-formed tradition help distill the “mysteries of the common good into acts we can emulate”. “Surveying history”, says Judge Matey, helps us “understand the reasons relied on to regulate” a right, ensuring a “‘[c]ontinuity of [p]rinciples’ faithful to our inherited tradition.”

The complete absence of historical analogs resembling a modern regulation is evidence, perhaps, that a particular type of regulatory measure was not considered conducive to regulating the right to the public good.

The upshot of all of this is, to paraphrase Green, that to determine the First or Second Amendment’s scope today, the originalist judge would be entirely warranted in turning to the long-running tradition of speech or arms regulation to seek insight into what kinds of regulations might be seen as licit and oriented to the public good. Indeed, Green’s paper suggests a serious effort to get at the original meaning would require such a move.

Green adds a caution, however, that “if the Court wants to continue leaning on this new jurisprudence of tradition—to return to this older, eighteenth-century rights analytic—it should be prepared to confront the deep questions that older framework raised, and which remained essentially unanswered when our Constitution was adopted”. (Green, 5)

Green provides a concise but nuanced picture of what these unanswered questions consisted of, and different schools of thought that existed in English constitutional practice in respect of the regulation of rights, a practice in which the founding generation were conversant.

Overall, the thrust of Green’s argument is that if you want to settle the bounds of rights provisions and the extent to which they can be regulated, by reference to history and tradition, then there is a job of work for courts to do in getting to grips with the conceptual and methodological presuppositions and premises of prior generations of jurists and the disagreements they had within their shared frameworks.

By opening up avenues for exploration of 18th century English constitutional thought in respect of rights, natural law, custom, and how they related to positive law, Green’s paper does constitutional scholars a great service.

II.

In Part II, Green does a good job in recapturing “the ways in which English legal theorists” conceptualized the rights “encoded in their own, ancient constitution”. He performs very elegantly the difficult task of helping the amateur reader, in his own words, think “our way into the foreign world” of 18^th century English constitutionalism (Green, 19).

Green’s reconstruction of English constitutional thought implicitly takes the view that the social practices and rhetoric constituting English public law were meaningful to their participants, that the social actors engaged in them had a self-understanding that enabled them to take part in those practices, and that when we probe their self-understanding by looking at what is implied in their arguments, judgments, reports, and treatises, we can discern continuities in how successive generations of legal elites sincerely understood the interactions between concepts like natural law, common law, and the power of the state.

We may say that English jurists participated in a tradition in the sense Alasdair Macintyre uses that term in works like Whose Justice, Which Rationality (p.5); in that they enjoyed a shared “settled conviction with regard” to what was meant and demanded by some foundational concepts of social and political life.

There was a shared willingness to assent to several normative propositions: that the Office of Kingship was for the common good, to provide justice and order and to keep Gods law and that of the realm; but that the Crown itself was under the Law and both the King and Parliament could not act contrary to natural or divine law, nor the customary privileges and liberties of subjects.

English jurists all drew on similar sources to elaborate and justify these positions on matters of state and rights– from scripture, theology, common law and custom, Roman and civil law, classical philosophy and natural law.

This understanding of the core premises and foundations of the English Constitution are sketched out again and again by generations of jurists, and is well captured in Part II of Green’s piece.

To take the self-understanding of actors in English constitutional practice seriously need not, of course, involve buying into a self-congratulatory whiggish understanding of English constitutional history and development.

The fact it was commonplace for jurists to maintain that the Crown was both sovereign and subject to the law of the land, including natural law and customary law – under God and under the law as Bracton and Fortsecure put it – did not mean, as Green notes, that the King always upheld such rights and traditions in practice (Green, 26).

Controversies over the extent of the Crown’s ability to make legally binding rules or tax outside parliament, the use of the Star Chamber to prosecute offences outside of the usual common law courts and rules of procedure, the liberal use of Bills of attainder by Henry VIII to deprive disfavored persons of life or property without trial, or the advent of the use of torture in Star Chamber proceedings following the rein of Edward IV, are proof enough that there were oftentimes gaps between the theory and practice of English constitutional law (F.W. Maitland, Constitutional History of England).

At the same time, the claims by successive generations of jurists about the limits of public power were not, as Green puts it nicely, a “winking fiction” (Green, 26).

The references to natural law, customary rights, limits on the rightful authority of the Crown, were not meaningless platitudes. They were working principles, and they were taken seriously in legal and political life.

It was part of the King’s coronation oath to maintain the laws and customs of the realm, protect church and people by keeping the peace and to do justice. While some Kings might break their oath and offend such principles, doing so consistently or for sustained periods was rare. And for good reason.

At the close of the 14^th century, Richard II would discover just how seriously legal and political elites took such principles when he tried to rule in a more absolutist fashion, including being liberal in helping himself to the property of others.

In Shakespeare’s Richard II, the critical turning point in the play is the moment when the fabulously wealthy John of Gaunt dies and, instead of his estate passing to his son Henry Bolingbroke, it is unlawfully confiscated by the King.

He is advised against this by his Uncle, the Duke of York, who warns the King he will “pluck a thousand dangers” on his head and “lose a thousand well-disposed hearts” through this unlawful course of action.

Richard is undeterred and doubles down; saying "Think what you will, we seize into our hands / His plate, his goods, his money and his lands". A total breach of natural and customary law.

When Henry returns from exile to challenge the King, those who rally to him do so in part because of the perceived injustice of Richard’s actions in unlawfully expropriating his property – which are Henry’s right, his ius under law, the law the King is meant to, is sworn, to uphold.

There is a real sense in which his being deposed was a result of his unconstitutional actions. Or as the historian F.W. Maitland put it pithily in his Constitutional History of England, “Richard had a theory of absolute monarchy, and he was deposed” (p.188). Cause and effect.

Moments of high constitutional drama aside, we can also gather insight into the respect afforded to the principles mentioned by Green by considering the day-to-day practice of English courts over generations.

In the theory and practice of English public law, lawyers and judges drew on principles of natural law and customary law (itself understood as a determination of NL) to harmonize the content of posited texts – statutes and ordinances - with the requirements of right reason, ensuring they remained ordinances of reason oriented to the common good and did not devolve into a perversion of law, ultra vires the lawmaker’s legitimate authority.

Green gives plenty of support for this position in his discussion of statutory interpretation and the role of equity.

Overall, Green’s account of English constitutional practice is satisfyingly neither credulous nor cynical.

III.

Green does not seek to offer an account of how recovering methodological and interpretative tools from the 18^th Century jurist’s tool-kit, could be used today to frame different doctrinal approaches by courts in adjudicating cases under the bill of rights.

Rather, his focus is on reconstructing the “interpretative tools” themselves and the “theoretical understandings” underpinning their use by English jurists.

But after sketching some of the juristic tool-kit used by English lawyers, Green concludes on a somewhat downbeat note, saying that what he is trying to suggest is that “to the extent that contemporary originalists hope to find answers” about how to “conceptualize, define, and read a tradition” through examining English constitutional law and practice, they are “likely to be disappointed”. (Green, 59).

Green reaches this conclusion I take it because of the disagreement he shows that existed in English constitutional law, by the 18^th century, about some important issues relevant to understanding natural and customary rights and how they could be regulated and by whom. Just to give two examples mentioned by Green:

• There was agreement that the concrete manner in which abstract natural rights were to be made effective and ordered to the public good could be changed and altered by custom. But there was disagreement over whether judges trying to assess whether and how a right had been regulated by customary law could take judicial notice of popular practices, or if they had to decide the content of customs based on formalized judicial precedents (Green, 41-48).

• There was agreement that the content of rights was regulable by custom and that custom was reflected in judicial decisions, but there was division over whether the law within those decisions lay in the “underlying principles animating the courts decisions, or the rules of decision they’d endorsed” (Green, 51).

These disagreements are important and challenging, and need to be grappled with if the Bruen/Rahimi methodology is to be taken seriously on its own terms. I think it would be good for the paper if Green linked these disagreements back to contemporary challenges facing courts working with the history and tradition framework.

I take it that the disagreement over what evidence counts as an expression of custom can be linked to debates about what counts as evidence of a regulatory tradition. Is it to be gleaned from formalized sources like statutes, judgments or does it extend to treatises, public debates, protest movements, opinion polls and so on.

I think if Green explicitly tied these historical disagreements back to the questions facing those trying to apply the Bruen/Rahimi doctrinal tests, that would be very illuminating.

IV.

I also think more attention could have been given by Green, toward the close of the paper, to tying together those jurisprudential issues on which we see considerable agreement amongst English jurists across extended periods of time, agreement which I think is quite relevant to the future treatment of history and tradition methodology.

Because another way of spinning Green’s account is to emphasise that there was widespread agreement about many principles, but disagreement about their application.

What did lawyers like Bracton, Bacon, Fortescue, Coke, St Germain all share? Some were Catholic, some Protestant, some were Canon lawyers others common lawyers, they had varying degrees of Roman law and theological learning.

What they had in common was a view of jurisprudence and legal practice anchored on what Adrian Vermeule dubs a shared legal “cosmology”, that saw posited law not as exhaustive of laws content but a critical component of a wider juridical order with natural and divine law at its base.

It was a framework in which, to be sure, internal disagreements like Green looks at could be commonplace. But disagreement about what was good evidence of customary law, whether the rule of decision or principle was the important part of a judicial precedent, or the limits of equitable interpretation, all happened within shared premises. Disagreement within a shared matrix of understanding and supposition can, after all, be a hallmark of an enduring tradition in “good order” (Alasdair MacIntyre, After Virtue, p. 257).

It is important for understanding the possible implications of Rahimi and Bruen, I think, to really take seriously these points of agreement, overlapping consensus, or whatever we want to call it.

Let’s recap a few of these lines of agreement.

There is a great 2017 volume on great English Christian jurists published by Cambridge University Press whose various chapters on figures like Bracton, Blackstone, Hale, Mansfield contain, in the words of its editors Dick Helmholz and Mark Hill, “abundant evidence of the extent” (Great Christian Jurists in England, p.15) to which successive generations of English lawyers saw natural law and right reason as integral parts of legal practice. The editor's note the “enduring character of the view of all law as somehow connected with natural and divine law” (p.16).

In the context of what we would characterize as public law matters, like the interpretation of statutes, natural law principles played what Helmholz calls an ‘internalist’ role in that they were used to “discover the meaning of existing laws [and] to help supply the answer to a legal question where the import of positive law was uncertain ….” (Helmholz, Natural Law in Court, Harvard University Press, p.47)

They played this role, for example, by undergirding the presumption that an ordinance could not have been intended to reach a result that contained either absurdity or iniquity and that the lawmaker did not intend to allow their directives to conflict with justice and the common good. This is well reflected in Green’s outline of the English Court’s regular recourse to equitable interpretation.

Natural law principles also ensured legal actors would not, as Green discusses, recognize as law a custom at odds with right reason. As Green puts it, a “course of practice that was arbitrary, irrational” was ipso facto not law (Green, 18).

Another view that comes through with unmistakable clarity is that rights and their content were tightly linked to the requirements of natural law, justice, and the common good. Rights to property, rights to self-defence, or speech rights, may be theoretically and normatively justified either on individualist and autonomy-based grounds, or instead on grounds that emphasize their contribution to the flourishing of the community.

On the classical view, and this is the view that I think the English jurists shared, rights are what are owed to people because the natural law or just positive law demands it. Rights are due to persons as they contribute to states of affairs and arrangements within a polity that are just, in the right and help conduce to the flourishing of each and all – the whole point of government and society.

The upshot of all of this is that I think Green would be justified in observing that, whatever the disagreements of founding era jurists in England or the colonies, they agreed on quite a lot, and what's more, what they agreed upon, if taken seriously by contemporary lawyers and judges, would have big implications for US legal culture and practice.

It would require judges and lawyers in a post-legal realist and secular world, to immerse themselves and take seriously the cosmology of the classical lawyer. Vermeule is worth quoting at some length on the serious implications of this point:

“The legal world of the founding era, certainly in 1789-91 and still even in 1868, was so radically different than our own that if we really did originalism consistently and thoroughly, our law would be wildly different than many modern originalists imagine, both in method and in outcome. It’s not a matter of adjusting this or that doctrine at the margins. The whole way the founding generation and many later generations thought about law was different than the way people think about law today, after the advent of (analytic) legal positivism, modern individualist conceptions of rights, and the originalist reaction to the Warren Court.”

As Vermeule suggests, immersing oneself in the legal cosmology of the classical jurist would require that judges and lawyers own practical reasoning would have to become familiar with the axioms of the natural law tradition, including the point of law, of politics, the nature of the common good and of rights, and how positive law interacts with natural law.

For judges who think all law is man-made or socially constructed, it would be like relocating to a foreign country with a shaky grasp of the language or its social norms. Difficult, anxiety inducing, perhaps quite thrilling...

My invitation for Green, then, is to engage, even if only in sketch form, with what taking these points of agreement seriously might look like for applying the Rahimi/Bruen history and tradition framework.

My own view (as a curious observer of US constitutional law who has been influenced by the work of Helmholz, Matey, Vermeule, and Campbell) in the briefest of terms, is that it might mean conceiving of rights provisions as declarations of natural law precepts like self-defence, respect for which is an element of the common good.

Because natural law precepts are under-determinate, it is up to the people or lawmaker to make further determinations about how to respect that principle, while at the same time ensuring the conduct it protected did not undermine the public good – the whole point of government and of rights.

The heart of the regulatory tradition permitting the regulation of a natural law based right would be focused on whether a regulatory measure can in fact successfully orient the exercise of a principle like self-defense to the public good, while not nullifying the principle itself.

The judicial role would consist, ultimately, in probing whether the modern regulation of arms is a successful attempt by the legislature to order the principled exercise of self-defence to the public good, or whether it misfires and fails to do so.

It is, in other words, a deeply normative and prudential question of the kind that judges tend to be deferential toward.

If legal actors are bound by the natural law principles undergirding a provision like the Second Amendment - and are not bound by historical regulators’ contingent empirical judgments about how best to effectuate those principles, this means that - in principle – the people today could have pretty extensive authority to orient the exercise of rights like self-defence through arms, or speech, to the public good.

But I would love to hear more from Professor Green and you all on this point.