Tradition as a Freestanding Source of Law

An Old Answer to Justice Barrett’s Recent Question

It very much looks as though the originalist movement is struggling with basic questions of method. (See the multiple concurrences, mostly solo concurrences, by originalist Justices pondering method in two recent decisions, United States v. Rahimi and Vidal v. Elster). I for one do not see this as a sign of health, but rather of the fracturing of a paradigm upon contact with reality, analogous to what philosophers of science call a “degenerating research programme.” After decades of originalist theory and practice, originalists should not *still* be trying to figure out the basics of their view.

The latest debate, which has already produced a series of new epicycles, involves disagreement within originalism over the role and legal standing of history and tradition after the ratification of the Constitution. Some Justices, including some Justices who call themselves originalist, seemingly embrace ongoing history and tradition as a source of law in its own right, while others, like Justice Barrett, have become increasingly skeptical of tradition’s methodological standing. For Barrett, while post-ratification history and tradition can provide evidence of original constitutional meaning, “liquidate” ambiguities, or serve as precedent, post-ratification history and tradition do not themselves constitute an independent source of law. Tradition, she said in her concurrence in Vidal v. Elster, is not an “end in itself.”¹ In the academic discourse, originalists or originalist-adjacent scholars like Sherif Girgis discuss various rationales for “living traditionalism” (defined along Barrett’s lines as traditionalism not used as evidence of original meaning, as liquidation, or as precedent, but instead as a freestanding source of law), and reach partly skeptical conclusions that defy crisp summary. In essence, however, the main question about history and tradition as an independent legal source, as Barrett recently put it, is simply this: “What is the theoretical justification for using tradition that way?”

There is an old answer to Barrett’s question,² one that I have yet to see originalists consider in any sustained and well-defined way. A venerable argument holds that if the binding status of written law is based upon popular sovereignty, as approximately all originalists believe, then longstanding tradition or custom (that is, widespread practices accompanied by opinio juris, a sense of legal obligation) must also count as a freestanding source of binding law. The argument is given by the jurist Julian in the Digest (1.3.32.1):

Inveterata consuetudo pro lege non immerito custoditur, et hoc est ius quod dicitur moribus constitutum. Nam cum ipsae leges nulla alia ex causa nos teneant, quam quod iudicio populi receptae sunt, merito et ea, quae sine ullo scripto populus probavit, tenebunt omnes: nam quid interest suffragio populus voluntatem suam declaret an rebus ipsis et factis? Quare rectissime etiam illud receptum est, ut leges non solum suffragio legis latoris, sed etiam tacito consensu omnium per desuetudinem abrogentur.

In Alan Watson’s translation:

Age-encrusted custom is not undeservedly cherished as having almost statutory force, and this is the kind of law which is said to be established by use and wont. For 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? Accordingly, it is absolutely right to accept the point that statutes may be repealed not only by vote of the legislature but also by the silent agreement of everyone expressed through desuetude. (Emphasis added).

On this view, if popular sovereignty is the ground for the bindingness of written law, then ongoing tradition must also constitute binding law in its own right, with freestanding force - even to the point of having the power to repeal earlier, duly enacted written texts. The sovereign lawmaker, the people, who can create the one can also create the other. As another jurist, Hermogenian, puts a very similar argument in Dig. 1.3.35: “We also keep to those rules which have been sanctioned by long custom and observed over very many years; we keep to them as being a tacit agreement of the citizen, no less than we keep to written rules of law” (emphasis added).

It is not my purpose here to express a view on whether the argument offered by Julian and Hermogenian is correct, nor is it necessary for my limited purposes to rehearse the involved, long-standing debates over custom as a source of law and the relationship between custom and the interpretation of written laws — debates that pervade classical legal theory, its Anglo-American variant (the common law), and legal theory after World War II. Julian himself was arguably inconsistent on the issue; consider Dig. 1.3.32pr, where Julian suggests that jurists should consult custom (only?) when there is no applicable written law. Other jurists, some of whose views are recorded in the Digest, offer more limited arguments for the role of custom that are perhaps compatible with Barrett’s constraints. An imperial constitution, C. 8. 52.2, seemingly took a different view than Julian’s, although various reconciliations were offered by jurists. Finally, there was a longstanding and complex debate among classical lawyers over the question whether the people’s sovereign power to make law through custom persisted after the lex regia delegated the popular lawmaking authority to the Emperor. All this is familiar ground for discussion and has been treated by others at length. Quite obviously, for my purposes here, it is irrelevant whether or not the Digest or other Roman sources count as binding legal sources in our system today. The point is not to appeal to the authority of Roman law, but to the logical force and substantive merit of Julian’s argument, given originalism’s own premise of popular sovereignty.

The importance of the argument is that it provides an answer to Barrett’s question about the theoretical justification for treating tradition as a source of law in its own right. Given that originalists hold the fixed original meaning of written constitutional texts to be binding because those texts were duly approved by the sovereign people, why can’t the sovereign people instead, or also, decide to express themselves through normatively-grounded widespread traditions or customs, unfolding over time? As Julian asks, what does it matter whether the people declares its will by voting or by the very substance of its actions, by written or unwritten law? If the originalist view is that “We the People” are fully sovereign lawmakers, there can be in principle no limit to the ways or forms in which We the People may speak, or the times at which they may do so. As H.F. Jolowicz put it, “[u]ltimately, if one accepts the [modern] will theory of law, it is impossible to deny that the will of the community, however manifested and whether based on error or not, must prevail.”

One might imagine various originalist attempts to answer Julian’s question. The originalist might hold, for example, that We the People at the time of ratification of the Constitution should be understood to have implicitly bound itself not to make law through ongoing tradition. Alternatively, perhaps We the People should be understood to have implicitly instructed judges and other officials to consult ongoing tradition only for the limited purposes Justice Barrett indicates are acceptable to the originalist, such as providing evidence of the original meaning of constitutional texts. Answers of that sort, however, would in turn have to confront further questions — most obviously, a serious version of the Ulysses and the Sirens problem familiar in constitutional theory: can the sovereign bind “itself” not to make law in certain ways in the future? What prevents the sovereign from simply deciding, at a later time, to abrogate the prior constraint?

I will pursue the issues no further, because I have yet to come across any serious originalist treatment of Julian’s fundamental answer to the question why tradition has legal force in its own right.³ Whether or not there are valid responses to that argument, it seems to me an argument that originalist theory is logically bound to confront.

1. It’s interesting to compare that view with a recent and highly influential amicus brief by the United States Conference of Catholic Bishops in United States v. Rahimi (discussed here), which pointedly said that “consistency with tradition is the touchstone of constitutionality” — emphasis in the original.

2. In an excellent and learned piece from 2022, Patrick J. Smith put a version of the same point to Joel Alicea. Smith’s piece was written before the recent outbreak of judicial debate over the relationship between originalism and traditionalism, and was bound up with the interpretation of Aquinas’ legal theory (responding to an interpretation of Aquinas, earlier offered by Alicea, that entirely overlooked the role of customary lawmaking). But Smith’s main point is essentially the same one I reassert here, albeit in a distilled form that is focused on the recent debate.

3. Note, again, that Patrick J. Smith raised a cogent version of this point two years ago. Girgis, in the article linked above, does briefly mention the possibility that “democracy” is the basis for the validity of living traditionalism, but does not squarely address the issue raised here. Somewhat farther afield, Baude and Sachs seem to hold that custom pre-existing the Constitution’s ratification has continued force, although perhaps only as “general law” rather than as constitutional law specifically — although I cannot say I fully understand the many twists and turns of their views, which seem to be rapidly evolving in ever-more classical directions. All that said, quite possibly I have simply missed an originalist attempt to answer Julian’s argument; the intramural originalist literature swells by the day.