The Body Without the Soul

On “History and Tradition” in Constitutional Interpretation

Gustave Moreau, “Oedipus and the Sphinx,” 1864

Editor’s Note: On Monday October 28, I was privileged to take part in a joint event at the Harvard Law Federalist Society, speaking alongside my former student Tyler Dobbs. Tyler spoke on his important work on the history of blasphemy law in the United States. He shows that well into the 20th century, blasphemy laws were seen as entirely consistent with “the freedom of speech” and with other constitutional rights — a finding with important methodological consequences for originalism and for the role of tradition in constitutional interpretation. Tyler connected that work with the recent turn to “history and tradition” in rights adjudication.

What follows is an essentially unedited version of the remarks I delivered, with a few links thrown in. Given the nature of the event, they are not of course in academic format or intended to have full scholarly nuance and precision. I am rather skeptical of the “history and tradition” approach, at least in the form that approach takes in the Bruen decision and other cases — which I see as a doomed effort to incorporate the body of history into modern law without the animating soul of the classical legal tradition, as it were. That said, the Court’s recent, more classical version of “history and tradition” in the Rahimi decision is in my view far more promising. Hope you enjoy!

Introduction

I’ve admired Tyler’s work since his outstanding student note, showing irrefutably in my view that blasphemy laws were thought to be consistent with the freedom of speech until rather shockingly late in our history.

That work, and Tyler’s talk today on the “history and tradition” test, bring irresistibly to mind two different aphorisms, which superficially seem opposed to each other. The first is the famous opening of a 1953 novel by L.P. Hartley: “The past is a foreign country. They do things differently there.” The second is William Faulkner’s dictum that “the past is never dead. It’s not even past.” Let me comment on both, with reference to free speech, rights, and the “history and tradition” test that has recently been much discussed at the Supreme Court.

The Past is a Foreign Country

Begin with “the past is a foreign country.” Tyler’s work on blasphemy points us to a larger truth about originalism. The legal world of the founding era, certainly in 1789-91 and 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. It’s that the whole way the founding generation and much 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.

To illustrate with Tyler’s example of free speech, here’s a puzzle about actually existing originalism: the Justices who most clearly describe themselves as originalists tend also to be the most enthusiastic about constitutional protection for free speech. This is an odd combination of views for a couple of reasons. One is that for much of our history, as scholars like David Rabban have shown, the widespread understanding and the judicial doctrine, to the extent there was any, were that at least the liberty of the press was primarily a limit on prior restraints or licensing, not on subsequent punishment. The second is that even as to subsequent punishment, the whole subject of free speech was justified and conceived in a radically different way than the way we think about it today.

First, free speech was seen as fundamentally a natural liberty rationally ordered to the well-being of the political community, to the general welfare or common good, rather than justified on individualist grounds (although of course individuals were the holders of the relevant right). Today, this conception exists only in a thin form, when people say that one systemic justification for free speech is that it is necessary for democracy. But the communitarian dimension of the freedom of speech was different and much thicker in its original conception and for most of our history. The political community in America was seen, or implicitly assumed, to be one instantiation of a broader Christian or at least monotheist civilization - in the particular American case, a civilization both small-r republican and Christian or at least monotheist. (The standard definition of blasphemy was “maliciously reviling God or the Christian religion,” which is why I slightly waffle by saying “Christian or at least monotheist”). The freedom of speech was ordered to the well-being of that kind of community, which is why Chancellor Kent in the Ruggles case in 1811 said that the malicious reviling at issue — “Jesus Christ was a bastard and his mother must be a whore” —  was in Kent’s words not only a religious but also a social and political offense. As Kent put it, that outburst was “not only in a religious point of view, extremely impious, but, even in respect to the obligations due to society, … a gross violation of decency and good order.” By contrast — and this is the small-r republican element — decently ordered and responsible public speech, motivated to promote the good of the community, could debate the tenets of Christianity as a theological position without any legal risk, as the judges themselves said.

Note that the underlying conception of the principles and character of the political community necessarily  affects how the doctrine cashes out. If “democracy” is the main feature of the political community, Satanist speech ought to be protected as well, to use one of Tyler’s examples. Why can’t the democracy consider whether to adopt Satanist principles? If vox populi, vox dei, then why not vox populi, vox diaboli? But if the relevant political community is thought to be both Christian and rational, then Satanism is not rationally ordered to the well-being of that community.

Second, because free speech was seen as a natural liberty rationally ordered to the well-being of the political community, the relationship between legislation and rights was entirely different than the framework we use today. Legislation was seen not as always potentially adversarial to free speech — something that rights might or might not have to “trump.” Rather legislation was seen as a way of “determining” the relevant background principles of the natural liberty of freedom of speech, as classical lawyers might say — as a way of concretizing or specifying principles that were not thought to arise solely from positive law, but instead were thought to be naturally inherent in the ordered liberty of the political community, but that needed further specification to be made legally concrete.

Therefore, as Jud Campbell among others has shown, legislatures were thought to have substantial discretion in concretizing free speech principles through enacted laws ordered to the common good.  As William Blackstone observed — and remember that Blackstone was the closest thing to a Bible-for-lawyers in the founding era — natural liberty could be “so far restrained by human laws . . . as is necessary and expedient for the general advantage of the public.” To quote Campbell: “Natural rights dictated who could regulate natural liberty and why that liberty could be restricted, but they typically were not ‘rights’ in the modern sense of being absolute or presumptive barriers to governmental regulation.”

This is just one illustration of a much larger and fundamental truth, uncovered by Dick Helmholz, Stuart Banner, and other legal historians: the whole legal cosmology of the founding era was different than ours. It was fundamentally not a positivist legal cosmology. Although positive or municipal civil law of course had an important place in that cosmology, it was seen at least in part as a way of giving specification to background principles of natural law and natural right, in light of the common good. Those principles were law in their own right, ipso iure, even though not created by any positive enactment of the human community. Legally speaking, the past is a foreign country.

The Past Isn’t Even Past

Let me now turn to the other side of the coin, in which the past isn’t even past. Today the main doctrinal vehicle for this insight is the “history and tradition” test, which tries to incorporate the past into present doctrine. This test, however, comes in at least two different versions, one of which I think is much more promising than the other.

The first version is what we might call the positivist and originalist version of history and tradition. This version sees history and tradition at a low level of generality, as a series of data points that inform the original understanding. On this view, the relevant history and tradition is clustered around the key originalist benchmark moments such as 1789-91 and 1868. Tyler, quite legitimately for his purposes, argues from within this version of history and tradition. Prominent examples include the Bruen decision and the (abominable) decision in US v. Stevens, which blocked regulation of animal crush videos.

From a larger standpoint, however, this version of history and tradition suffers from two major problems. First, there’s an inbuilt tension about how far back history and tradition should be taken to go, and why we should only care about history and tradition insofar as it is clustered around the originalist benchmarks. If popular sovereignty is the justification for originalism, why can’t the people as sovereign also make law and indeed constitutional law through collectively generated customs, conventions, and tradition? As I’ve discussed at greater length elsewhere, this is a very old thought, an example being a famous passage from the jurist Julian recorded in the Digest of Justinian: “Given that statutes themselves are binding upon us for no other reason than that they have been accepted by the judgment of the populace, certainly it is fitting that what the populace has approved without any writing shall be binding upon everyone. What does it matter whether the people declares its will by voting or by the very substance of its actions?”

The second problem with the positivist version of the history and tradition test is that it tries to take the bare results of cases and the bare facts of statutes, the data points, in abstraction from the very different legal justifications and classical legal worldview that animated the creation of those data points. It tries to take the body without the soul, as it were — which is of course an incomplete and distorted understanding of history and tradition itself.

After all, the judges and lawmakers who created the data points used by the history and tradition test were not themselves using the history and tradition test. They were using a classical legal framework. Let me quote an excellent essay on this point, not by me: “A crabbed reliance on ‘history and tradition’ to obtain the results of the classical legal tradition without adopting its methods is unpersuasive and self-defeating. Either these decisions must find their persuasive basis in natural law or the common good, or they will ultimately fail.”

There is a broader warning sign or red flag here: the history and tradition test without its animating soul, without its roots in the legal conceptions and methods of the classical legal tradition, can be and has been put to many ends. As the same essay observed, one of the main sources for the “history and tradition” test is an old 1977 decision in Moore v. East Cleveland, in which a liberal plurality, including Brennan and Marshall, overturned a restrictive definition of “family” for the purposes of defining a “single-family dwelling.” The data points of positivist “history and tradition” are not self-defining; one needs a theory with which to even describe them, let alone to treat them analogically, as Bruen itself concedes. Without the rich background of classical and natural-law principles defining the family (absent in Moore), without the soul as well as the body of the law, the risk is that the data points can be characterized in varying ways and at varying levels of generality. The risk is that anything goes.

The second version of the “history and tradition” test is much better and more nearly classical. As I’ve discussed and as Tyler explains, it is on display in the Rahimi decision, which says that history and tradition must take into account not only the results of the past but the traditional background principles that justified those results - must attend to both the body and the soul of the law. (The Chief also wrote for the Court in US v. Stevens, so I see this as growth in office on the part of the Chief). I hope that lower courts will follow the Rahimi approach, as they should.

For now, I note only that Judge Thapar’s approach to history and tradition in his recent concurrence, which Tyler discussed, seems to follow what I take to be the positivist version. Indeed, rather amusingly, as far as I can see Judge Thapar cites only the concurrences in Rahimi, along with Stevens and Bruen, rather than the methodologically distinct version of history and tradition in the Chief’s opinion for the Court in Rahimi — a rather bold way for a lower court judge to treat a recent and emphatic precedent of the Court, one that was widely seen as a course correction from the methodology of Bruen. For that reason, I’m perhaps somewhat more skeptical than Tyler that Judge Thapar’s approach reflects where the law currently stands.