The Fearful and Fainthearted
Remarks from the Inaugural Judge Joan L. Larsen Lecture, University of Michigan School of Law
On the 31st January, the Michigan Law Federalist Society hosted the Inaugural Judge Joan L. Larsen Lecture. The lecture centred around the theme of “Classical Legal Theory and the Purpose of History and Tradition” and featured remarks from the Hon. Judge Paul Matey of the United States Court of Appeals for the Third Circuit and the New Digest’s own Professor Adrian Vermeule. This week we are delighted to say we will be publishing these remarks. We are thrilled to kick things off by hosting the following from Judge Matey.
I. Introduction
This afternoon, I offer some tentative thoughts on tradition. First, history is not tradition, and the inquiry into one cannot absolve judges from considering the other.[1] But there is a critical corollary: we must consider tradition as classically understood. As helpfully framed by Professor Felipe Jiménez, “[t]raditions have certain distinctive features.”[2] “They are backward-looking” with content that “originated in the past.”[3] And “[i]n the present, that past has an authoritative presence.”[4]
We have departed from that principle. We live in an era of judging against historical practice measured not by tradition, but by mere custom. That gives us law sketched as an incomplete picture, lacking the color and the composition of the painting produced at the Founding.[5]
Federal judges are mere agents of our Republic, granted conditional authority to resolve disputes. Our authority depends on the assumption that our work will compliment, not clash against, what Hamilton explained: “Good and wise men, in all ages, . . . have supposed, that the deity, from the relations, we stand in, to himself and to each other, has constituted an eternal and immutable law, which is, indispensibly, obligatory upon all mankind, prior to any human institution.”[6] We might call the structure that obligation follows “mere tradition.”
II. History and Tradition
Tradition, as a legal concept, has enjoyed a recent revival. It took flight in Washington v. Glucksberg,[7] when Dr. Harold Glucksberg’s desire to kill his patients was frustrated by a ban on “physician assisted-suicide” in the State of Washington.[8] Pause to note how clever we are. How the elegant addition of “physician” and “assistance” transforms the monstrous into the mundane as if language can obscure meaning. But Washington had long criminalized efforts promoting suicide.[9] The Supreme Court was asked whether banning suicide through a doctor violated the Fourteenth Amendment?[10] Answering no, the Court wrote “we begin, as we do in all due process cases, by examining our Nation’s history, legal traditions, and practices.”[11] That admirable focus revealed that “for over 700 years, the Anglo-American common-law tradition has punished or otherwise disapproved of both suicide and assisting suicide.”[12] But, writing on, the Court added that “the States are currently engaged in serious, thoughtful examinations of physician-assisted suicide and other similar issues.”[13]
This glance to majoritarianism turned the reference to tradition on its head. It suggested that only because we presently prohibit doctors from knowingly killing their patients, the Constitution presently does not require we allow the killing.[14] So “tradition” as defined by Glucksburg, became a tool of reinterpretation that can modify legal meaning through public or private consensus.[15]
This idea of tradition is incorrect. It seems to have come from Justice Powell’s plurality opinion in Moore v. City of East Cleveland,[16] a case disagreeing with a state housing ordinance defining families using the familiar nuclear definition.[17] There, the Court reasoned that its “decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.”[18] And the Court cited a crock-pot full of cases including Pierce, Meyer, Roe, and Griswold,[19] decisions allowing parents to do very different things with their families, including creating a family.[20]
That standard suggests that when enough people do whatever they like for a time, tradition will nod its head and, like that, the Constitution takes on a new meaning.[21] And that is error, in both understanding and application.
Begin with meaning. History, the Oxford English Dictionary lists, is “[t]hat branch of knowledge which deals with . . . the formal record . . . of human affairs.”[22] Tradition is a “belief” “that is handed down . . . from generation to generation” by non-written means, creating a collective belief.[23] Observe the distinction. History records events. It documents what has occurred. It is passive, interested only in accuracy. But tradition is active, energetic. It does more than chronicle and organize. It teaches and instructs. While history is not concerned with beliefs, tradition can form belief.
As the Oxford English Dictionary continues, tradition is synonymous to doctrine, “not stated in scripture but which is believed to have comparable authority.”[24] So “history and tradition” should refer to two separate legal inquires. First, what is the record of events relevant to the question raised in a lawsuit (the history). Second, what are the sources of unwritten beliefs necessary to understanding the authorities that inform the resolution of the dispute (tradition)? One is a process that collects what has happened; the other a principle that collects us as humans. Tradition is not simply another way of discussing history. It has independent significance.
III. Where We Are
Consider a recent case before my court. Some former employees and Christians of various denominations requested religious exemptions to mandatory Covid vaccine injections.[25] When the employer denied their requests and fired them, they sued for religious discrimination under Title VII.[26] The District Court dismissed, stating that Plaintiffs “fail[ed] to explain how [their] religious beliefs lead to the conclusion that the COVID-19 vaccine will cause harm to [their] bod[ies].”[27]
I would have reversed that decision.[28] The Equal Employment and Opportunity Commission, synthesizing judicial opinions, defines religion as: 1) a moral and ethical belief; 2) as to what is right and wrong; 3) held by a single person with the strength of traditional religious views.[29] The Complaint followed that outline. It pleaded facts to support the plaintiffs’ objections to vaccination were an “aspect[]” of their “religious observance,” “practice,” or “belief.”[30] That “their bodies are sacred, and that vaccination would compromise that sacrosanct quality.”[31] They ground their objections in Scripture. And they alleged that prayer, discernment, and study informed their decision.[32]
Who could say such allegations aren’t “moral ethical beliefs as to what is right and wrong . . . held with the strength of traditional religious views”?[33] But that is not a correct statement of the law. To claim that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”[34] requires us to ask: what is religion?
Our current understanding, as the EEOC explains, assumes that “religious views” are solely morals and ethics[35] that relate only to “what is right and wrong.”[36] That is a most incomplete understanding of religion.[37] But it helpfully reflects the source of the problem: using the redefinition of tradition to reimagine religion as an accommodation of individual preference. One that jettisons the traditional understanding of religion as tradition, for a loosely grouped concept of “conscience.”
But conscience is not religious belief. It does not follow the traditional understanding of religion as an organized set of established dogma.[38] Or, as, Saint Thomas Aquinas explains, “offering service and ceremonial rites to a superior nature that men call divine.”[39] This is the classical correlation between the organized practice of religion and the individual duty to God that animated Founding-era thinking. We cast that aside in the 1960s as we became accustomed to hearing about toleration for individual preference. That formed a custom. A habit, a practice, a preference that forced aside tradition.
So how did customs displace traditions? Our honoree and my speaking partner both began their careers clerking for Justice Scalia and his remarks on interpretation illuminate the problem. In 1989, the Justice gave remarks now known to generations of law students.[40] Noting the “most serious objection to originalism: In its undiluted form, at least, it is medicine that seems too strong to swallow.”[41] When confronted with hard interpretive questions, he thought “that most originalists are fainthearted.”[42] He later repudiated that remark in a 2013 article.[43] I wish he hadn’t because I think he was right.
As always, the Justice chose his words carefully. Fainthearted is an expression of the 1500s for one “wanting energy, courage, or will to carry a thing through.”[44] Cowards, we might call them.
Richard Hooker picked up on that meaning in his 1612 Sermon against Sorrow and Fear, discussing the passage in Revelations[45] promising damnation to “the fearefull and fainthearted.”[46] Hooker doubted that fear alone is sinful.[47] Fearlessness is the concern, the man who puts aside worry.[48]
I take the Justice to recognize this problem of fear. But, I fear, he answers the concern by putting fear out of mind. He feared that adherence to a philosophy focused only on history might obscure the meaning of the law. His answer in 1989 was to temper that historical focus with precedent.[49] We need not worry about historical inaccuracy bundled into stare decisis he concluded. We just move it along.
Later, in his 2013 repudiation of fearfulness, he leaned on democratic accountability.[50] “Stupid but constitutional” is the answer, and the people can always amend the posited law if they like.[51] Fear not the arrival of poor habits into the law he might have said. They can be fixed before they firm up. Maybe. Hopefully? No. Letting go of our fear of fear is exactly what Hooker counseled we should fear most.[52] Because habit, custom, sentiment, precedent, and popular will all rely on a conception of law as a temporal custom, not an enduring tradition. For Justice Scalia, it seems, the law always reduces back to the durable expressions of political majorities. So as he wrote in Rutan v. Republican Party, “when a practice not expressly prohibited by . . . text . . . bears the endorsement of a long tradition of open, wide-spread, and unchallenged use that dates back to the beginning of the Republic, we have no proper basis for striking it down.”[53] Legal meaning, in this view, collapses into a set of rules the people proscribe, under their delegated authority. But with the respect due the great Justice, that view fails to follow his own advice to “immerse[]” ourselves in the “political and intellectual atmosphere” of the Founding.[54]
IV. Tradition Explained
So what have we forgotten? Recall the Decretals of Gratian: “It is absurd, and a detestable shame, that we should suffer those traditions to be changed which we have received from the fathers of old.”[55] As the Angelic Doctor explained, “when a thing is done again and again, it seems to proceed from a deliberate judgment of reason.”[56] And these judgments of reason—rigorously distilled towards “the truth of the divine intellect”[57] that “is immutable”—give us Tradition.[58] Or, as Chesterton summarized, a form of “democracy,” where we “have the dead at our councils,” having a say in the present and the future.[59]
Tradition is the direction of society towards the common good by our ancestors back to our first conceptions of obligation that arise as we emerge from nature.[60] Tradition is not custom, it is more than ritual. Both are “only the outward manifestations of the tradition to which they belong.”[61] As Newman writes, Tradition is “the essential idea or type which . . . must continue under all its developments” such that “its loss is tantamount to the corruption of the system.”[62] So while customs and rituals may change, and in that limited sense the law may as well, Tradition does not vary or alter the positive law.[63] And custom does not disturb Tradition, as those “principles are enduring,” varying only in application so “that as circumstances change, doctrine must itself ‘change in order to remain the same.’”[64]
So if Tradition cannot alter the fixed meaning of the positive law, then what is its relevance? Consider another example: the Second Amendment.
Recently, my court considered whether a person who long ago lied on an application for food stamps can be precluded from keeping and bearing arms forever.[65] While history helps—there are plenty of examples of disarmament and disallowance[66]—none answer the precise question. That leaves several unsatisfying options. We can argue about the kinds of examples, the number of instances, the relevant time period. We can consider regional practices, perhaps pedigree, Madison or Marshall. But we will all soon agree none of this is getting us closer to a satisfying answer.
Tradition, in contrast, provides grounded guidance. When written, the Declaration justified our divorce from England as necessary to preserve “unalienable rights.”[67] As Hamilton explained, “natural liberty is a gift of the beneficent Creator,” while “[c]ivil liberty is only natural liberty, modified and secured by the sanctions of civil society.”[68] But these “fundamental rights that predate America are not unlimited, and like any law, never license acting contrary to the common good.”[69] Afterall, “selfishness and injury are as little countenanced by the law of nature as by the law of man.”[70]
Surveying history through this lens “helps us understand the reasons relied on to regulate” natural rights like the Second Amendment.[71] We look, as Professor Vermeule writes, for “markers or indicators that the later doctrine is essentially continuous with the earlier one and grows out of it, rather than representing a break with the past that mutilates or fundamentally transforms the core and essence of the doctrine.”[72] And that, of course, is where tradition adds to our understanding of the written law. Because law’s “authority rests . . . on the harmonising sentiments of the day, whether expressed, in letters, printed essays or in the elementary books of public right.”[73] With no exploration of tradition, we overlook those “certain primary truths, or first principles, upon which all subsequent reasonings must depend.”[74]
In other words, as Blackstone summarized, an appropriate historical inquiry cannot be conducted while blind to the “reason and spirit” provided by tradition.[75] Tradition is part of the fundamental law because its principles and accompanying practices are necessarily derived from the natural law. And those principles cannot be abrogated even by the Sovereign or by customs to the contrary.
We knew all that, once. We knew that religion is external to the individual because it centers on our collective commitment to God. It is not something constructed at random by the individual. Tradition eliminates the error of a “soft-soap” religion of conscience.[76]
Tradition also grounds the principles informing a consistent tradition of firearms ownership.[77] “First, because the right to self-defense is protected by the Second Amendment and preexists our Founding, laws extensively regulating the types of firearms a person can possess and the places where possession is permitted can ‘eviscerate the general right to publicly carry arms for self-defense.’”[78] Second, because “public Virtue is the only Foundation of Republics,”[79] the natural right to self-defense, like all other natural rights, can be exercised only by “a virtuous people who were controlled from within by a moral compass” that “respect[] social order, legitimate authority,” and “civic virtue.”[80] “This principle provides the reason for restrictions of the right to bear arms on those who set themselves against civil society by individual actions inconsistent with the common good.”[81]
V. Conclusion
Ignoring tradition is error. Worse is labeling custom as tradition. That error has now become the common understanding of courts and Congress and citizens. What will save us? Not the text of the law. As scholars have noted, and you can read, the Constitution refers to “religion,” not sincere and deeply held beliefs.[82] It refers to “arms,” without exception for time, place, and manner.[83]
But words aren’t enough. Recall Wittgenstein’s insights on language games and his famous example of student asked to count, by two, from 1000.[84] The student answers “1000, 1004, 1008, 1012” until the teacher cries “[l]ook what you’re doing!” And the student replies “Yes, isn’t it right? I thought that was how I was meant to do it.”[85]
Thinking alone is not following. C.S. Lewis quipped: “think of a country where people were admired for running away in battle, or where a man felt proud of double-crossing all who had been kind.”[86] “You might just as well try to imagine a country where two and two made five.”[87]
Let us stop trying to count as we please. The First Amendment did not codify a preexisting promise of personal conclusions about what is right and wrong. The Second Amendment does not ebb and flow based on the low character of the day. The hard work has mostly been done. A tradition, collecting thousands of years of insights and understanding has distilled the mysteries of the common good into acts we can emulate. A Republic, stood up by a belief in that tradition, has been created and still endures. Now, we need only take from the tradition we inherited the courage to return our law to the traditional foundations on which it stands.
[1] See Range v. Att’y Gen., 124 F.4th 218, 235 (3d Cir. 2024) (Matey, J., concurring) (“[A]n appropriate historical inquiry cannot be conducted while blind to the ‘reason and spirit’ of the law, which provided for its validity and natural purpose.” (quoting 1 William Blackstone, Commentaries *61)); see also Hadley Arkes, Constitutional Illusions and Anchoring Truths: The Touchstone of Natural Law 25 (2010).
[2] Felipe Jiménez, Legal Principles, Law, and Tradition, 33 Yale J. of L. & Humanities 59, 71 (2022).
[3] Id.
[4] Id. (emphasis omitted).
[5] See Range, 124 F.4th at 234–35 (Matey, J., concurring) (“Absent exploration of the natural principles that support our legal tradition, we overlook those ‘certain primary truths, or first principles, upon which all subsequent reasonings must depend.’” (quoting The Federalist No. 31, at 193 (Alexander Hamilton) (C. Rossiter ed., 1961))).
[6] Alexander Hamilton, The Farmer Refuted (1775), reprinted in The Revolutionary Writings of Alexander Hamilton 44 (Richard B. Vernier ed., 2008).
[7] 521 U.S. 702 (1997). But see Moore v. City of E. Cleveland, 431 U.S. 494, 503 (1977) (coining, for the first time, the “deeply rooted in this Nation’s history and tradition” when assessing “the institution of the family”).
[8] Glucksberg, 521 U.S. at 707–08.
[9] Washington first criminalized assisting another with suicide in 1854. See also Act of Apr. 28, 1854, § 17, 1854 Wash. Laws 78 (“Every person deliberately assisting another in the commission of self-murder, shall be deemed guilty of manslaughter.”). That prohibition continued throughout the nineteenth and early twentieth centuries. See Act of Dec. 2, 1869, § 17, 1869 Wash. Laws 201; Act of Nov. 10, 1873, § 19, 1873 Wash. Laws 184; Criminal Code, ch. 249, §§ 135–136, 1909 Wash. Laws, 11th Sess., 929.
[10] Glucksberg, 521 U.S. at 708.
[11] Id. at 710.
[12] Id. at 711.
[13] Id. at 719.
[14] Id. at 723, 728.
[15] Id. at 720–21.
[16] 431 U.S. 494, 503 (1977).
[17] Id. at 506.
[18] Id. at 503.
[19] See Glucksberg, 521 U.S. at 720, 726.
[20] See Meyer v. Nebraska, 262 U.S. 390, 400 (1923) (holding that parents have the fundamental right and “natural duty” to “give his children education suitable to their station in life”); Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 534 (1925) (holding that parents maintain “the liberty” “to direct the upbringing and education of children” because “[a] child is not the mere creature of the state; those who nurture him and direct his destiny have the right, couple with the high duty, to recognize and prepare him for additional obligations”). But see Griswold v. Connecticut, 381 U.S. 479, 485–86 (1965) (holding that individuals rights to use contraceptives is constitutionally protected); Roe v. Wade, 410 U.S. 113, 152–53 (1973) (holding that the Fourteenth Amendment guarantees the right to an abortion), overruled by Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022), and holding modified by Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).
[21] See Adrian Vermeule, Common Good Constitutionalism 123–24 (2022) (summarizing that for “progressive constitutionalists,” “the fundamental constitutional principles of the past are themselves seen to have been benighted, and therefore must be overcome”).
[22] History, VII Oxford English Dictionary 261 (2d. ed. 1989).
[23] Tradition, XVIII Oxford English Dictionary 354 (2d. ed. 1989).
[24] Tradition, N., Oxford English Dictionary, https://perma.cc/UL25-JPC9 (December 2024).
[25] McDowell v. Bayhealth Med. Ctr., Inc., No. 24-1157, 2024 WL 4799870, at *1 (3d Cir. Nov. 15, 2024).
[26] Id.
[27] McDowell v. Bayhealth Med. Ctr., Inc., No. 22-1392, 2024 WL 278187, at *4 (D. Del. Jan. 25, 2024), aff’d, No. 24-1157, 2024 WL 4799870 (3d Cir. Nov. 15, 2024).
[28] McDowell, 2024 WL 4799870, at *3–5 (Matey, J., dissenting).
[29] 29 C.F.R. § 1605.1.
[30] McDowell, 2024 WL 4799870, at *5 (Matey, J., dissenting).
[31] Id.
[32] Id.
[33] Id. at *4 n.1 (quoting 29 C.F.R. § 1605.1).
[34] U.S. Const. amend. I.
[35] 29 C.F.R. § 1605.1; see also EEOC Compliance Manual § 12A(1) (Jan. 15, 2021) (explaining that religious beliefs do not relate to “the nature of the activity, but on [an individual’s] motivation”).
[36] 29 C.F.R. § 1605.1.
[37] Such an understanding of religion “accepts decades of judicial decisions embracing a conception of religious liberty that prioritizes ‘inwardness, solipsism and absolute autonomy.’” McDowell, 2024 WL 4799870, at *4 (Matey, J., dissenting) (quoting Marc O. DeGirolami, The Sickness Unto Death of the First Amendment, 42 Harv. J. L. & Pub. Pol’y 751, 779–80 (2019)).
[38] James Madison, Memorial and Remonstrance Against Religious Assessments, in The Writings of James Madison 184 (Gaillard Hunt ed., 1901) (1785) (defining religion as “the duty which we owe to our Creator and the Manner of discharging it”).
[39] Thomas Aquinas, Summa Theologiae, pt. II-II, q. 82, art. 1 (Aquinas Inst. ed., 2012).
[40] A. Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989).
[41] Id. at 861.
[42] Id. at 862.
[43] Jennifer Senior, In Conversation: Antonin Scalia, N.Y. Magazine, Oct. 4, 2013.
[44] Faint-hearted, V Oxford English Dictionary 669 (2d. ed. 1989).
[45] See Revelations 21:8 (NIV).
[46] Richard Hooker, A Remedie Against Sorrow and Feare 10–11 (Oxford, Joseph Barnes 1612).
[47] Id.
[48] Id. at 11–12.
[49] Scalia, supra note 40, at 861.
[50] Senior, supra note 43.
[51] Senior, supra note 43.
[52] Hooker, supra note 45, at 11–12.
[53] 497 U.S. 62, 95 (1990) (Scalia, J., dissenting).
[54] Scalia, supra note 40, at 856.
[55] Dist. XII C.5; see also Aquinas, supra note 39, pt. I-II, q. 97, art. 2.
[56] Aquinas, supra note 39, pt. I-II, q. 97, art. 3.
[57] Id. pt. I, q. 16, art. 6.
[58] Id. art. 8.
[59] G.K. Chesterton, Orthodoxy 83 (John Lane 1909).
[60] Cf. Aquinas, supra note 39, pt. I-II, q. 7, art. 3 (“For if they are free, and able to make their own laws, the consent of the whole people expressed by a custom counts far more in favor of a particular observance, that does the authority of the sovereign, who has not the power to frame laws, except as representing the people. Wherefore although each individual cannot make laws, yet the whole people can.”).
[61] Tim Stanley, Whatever Happened to Tradition 14 (2021).
[62] John Henry Newman, An Essay on the Development of Christian Doctrine 64 (London, W. Blanchard & Sons 1845).
[63] Newman, supra note 61, at 70 (“[P]rinciples are permanent,” so “[d]octrines stand to principles, as the definitions to the axioms and postulates of mathematics.”); Jamie G. McWilliam, A Classical Legal Interpretation of the Second Amendment, 28 Tex. Rev. L. & Pol. 125, 159 (2024) (“Even when circumstances evolve, the principles remain the same” so any “statutes governing arms for the common good must be evaluated for their compliance with the principles of the ius naturale and the determinations thereof embodied in the Second Amendment.”); Bank of Toledo v. City of Toledo, 1 Ohio St. 622, 630–31 (1853) (“[L]aw is the perfection of reason, and that it is the reason and justice of a legal principle, which give to its vitality,” therefore, “recurrence should be had to fundamental principles, and the authority of precedent regarded so far only as there is to be found a conformity to reason and the true nature of our own government.”).
[64] Adrian Vermeule, Rahimi as Principles Development of Doctrine: A Classical Turn for the Second Amendment, The New Digest (June 21, 2024) (quoting Newman, supra note 61, at 39).
[65] See Range, 124 F.4th at 218.
[66] See, e.g., id. at 238–40, 242–44 (surveying various disarmament laws).
[67] Declaration of Independence para. 2 (U.S. 1776).
[68] Alexander Hamilton, The Farmer Refuted (1775), reprinted in The Revolutionary Writings of Alexander Hamilton 70 (Richard B. Vernier ed., 2008).
[69] Range, 124 F.4th at 233 (Matey, J., concurring); see also 1 William Blackstone, Commentaries *251 (“For civil liberty, rightly understood, consists in protecting the rights of individuals by the united force of society; society cannot be maintained, and of course can exert no protection, without obedience to some sovereign power; and obedience is an empty name, if every individual has a right to decide how far he himself shall obey.”).
[70] Collected Works of James Wilson 1055–56 (Kermit L. Hall & Mark David Hall eds., 2007).
[71] Range, 124 F.4th at 233 (Matey, J., concurring).
[72] Vermeule, supra note 21, at 123.
[73] Letter from Thomas Jefferson to Henry Lee (May 8, 1825).
[74] The Federalist No. 31, at 193 (Alexander Hamilton) (C. Rossiter ed., 1961).
[75] 1 Blackstone, Commentaries *61.
[76] C.S. Lewis, Mere Christianity 26 (2001) (1952).
[77] See Range, 124 F.4th at 235–36 (Matey, J., concurring).
[78] Id. at 235 (quoting N.Y. State Rifle & Pistol Ass’n Inc. v. Bruen, 597 U.S. 1, 31 (2022)).
[79] Letter from John Adams to Mercy Otis Warren (Apr. 16, 1776).
[80] Daniel L. Dreisbach, Reading the Bible with the Founding Fathers 68 (2017); see also John Adams to the Officers of the First Brigade of the Third Division of the Militia of Massachusetts (Oct. 11, 1798) (“Our Constitution was made only for a moral and religious people.”).
[81] See Range, 124 F.4th at 235–36 (Matey, J., concurring).
[82] U.S. Const. amend. I.
[83] U.S. Const. amend. II.
[84] Ludwig Wittgenstein, 1 Philosophical Investigations 74–75 (G.E.M. Amscombe, trans, 2d ed. 1958) (1953).
[85] Id. at 75 (emphasis omitted).
[86] Lewis, supra note 76, at 6.
[87] Id.