Two Versions of “History and Tradition”

Remarks at the Inaugural Judge Joan Larsen Lecture at Michigan Law

Recently, I had the privilege of speaking at the first annual Judge Joan Larsen Lecture at Michigan Law. Also speaking were Judge Paul Matey, whose illuminating remarks have been published at The New Digest, and our distinguished honorand, Judge Larsen herself. Warm thanks to both judges and to the excellent students who arranged the event, and to Mr. Michael Huston, whose generosity made the series possible.

What follows is a substantially unedited version of my prepared text, without notes or links. Attentive readers of The New Digest will immediately discern that my remarks are partly a reworking and rearrangement of certain points made in earlier posts of mine on the subject of “history and tradition” in constitutional law, although there are some new points as well. I publish them merely in the hope that the combination, rearrangement, and presentation of my thoughts on the subject is more orderly and logical, and thus more helpful, than in the previous posts.

It’s a great pleasure to be here with all of you and in the presence of these two eminent judges whose work I admire: Judge Matey, who not only holds down his day job with enormous distinction, but also does work on legal theory of such high quality as to put us law professors to shame; and Judge Larsen, our distinguished honorand. It’s a particular privilege to be celebrating Judge Larsen’s contributions to the law today, but I have to say she has been modest almost to the point of falsehood. The reality is that I have been profiting shamelessly from her legal intelligence for over 30 years, starting with the days when I would turn to her for advice about pretty much every bench memo and opinion draft. At the end of my remarks, both judges will make another appearance, through their opinions.

So: it very much looks as though the originalist movement is still struggling with basic questions of method. 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.

Some of the Justices seem to embrace ongoing tradition as a source of law in its own right, or at least take no clear view. But others, like Justice Barrett, have become distinctly skeptical of tradition’s methodological standing. For Barrett, while tradition can provide evidence of original constitutional meaning, “liquidate” ambiguities, or serve as persuasive but not binding precedent, tradition does not itself constitute an independent source of law. Tradition, she said in her concurrence in Vidal v. Elster, is not an “end in itself.” The main question about tradition as an independent legal source, Barrett says, is simply this: “What is the theoretical justification for using tradition that way?”

Let me try to make some progress on these issues, while answering Justice Barrett’s question along the way, although it may not be an answer that she would find congenial. As I see it, the “history and tradition” test 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 version. This sees history and tradition at a low level of generality, as a series of brute social facts — data points that provide evidence of the original understanding. On this view, it is irrelevant why legislators or judges of the past generated the results that they generated; it is the bare fact of those results that informs the original public meaning. Accordingly, on this view, the relevant history and tradition is clustered around the key originalist benchmark moments of constitutional enactment, such as 1789-91 and 1868. A prominent example of this approach is the Bruen decision.

In my view, the positivist version of history and tradition suffers from three major problems. First, it is impossible to actually take data points in isolation as brute social facts that evidence original public meaning, without explicitly or implicitly constructing some theory to explain which such facts are legally relevant and why. Bruen itself admitted as much, acknowledging that “[to determine] whether a historical regulation is a proper analogue for a distinctly modern firearm regulation requires a determination of whether the two regulations are relevantly similar” - an inherently theoretical inquiry.

Second, 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 benchmark moments of constitutional text enactment. The only rationale for originalism that hooks up, as it were, to the moments of text enactment is popular sovereignty. But if popular sovereignty is the justification, then, one has to ask, why can’t the people as sovereign also make law and indeed constitutional law through collectively generated tradition?

This is a very old thought, an example being a famous passage from the jurist Julian of the 2d century AD, later recorded in the Digest of Justinian: “Given that written laws 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?”

On Julian’s 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 - perhaps even to the point of having the power to repeal earlier, duly enacted written texts, as Julian indeed argued. The sovereign lawmaker, the people, who can create the one can also create the other.

It is not relevant 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 of Julian’s question, given originalism’s own premise of popular sovereignty. If correct, it provides an answer to Justice Barrett’s question about the theoretical justification for treating tradition as a source of law in its own right. Why can’t the sovereign American people decide to express themselves through normatively-grounded widespread traditions, unfolding over time? As a famous student of Roman law, H.F. Jolowicz, put it, “[u]ltimately, if one accepts the [modern] will -[based] theory of law, it is impossible to deny that the will of the community, however manifested … 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. 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: 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?

The third and final 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 rationales, legal justifications and indeed legal worldview that animated the creation of those data points.

After all, the ratio decidendi of a decision is itself part of the holding. And the judges and lawmakers who created the data points used by the history and tradition test were not themselves doing law in a positivist way; nor were they themselves using the positivist history and tradition test. They were judging within a classical legal framework that was distinctly non-positivist.

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. I don’t have the time here to detail this at length, but the basic truth, recovered by Dick Helmholz, Stuart Banner, and other legal historians is that 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 divine law and natural law, as reasoned ordinances conducing to 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. In this sense, the positivist version of history and tradition tries to take the body of the law without the soul, to take the results of decisions without the larger framework of principles animating them — which is of course an incomplete and distorted understanding of history and tradition itself.

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. One of the main sources for the “history and tradition” test is an old 1977 decision in Moore v. East Cleveland, in which a plurality, including Justices Brennan and Marshall, overturned a restrictive definition of “family” for the purposes of defining a “single-family dwelling.” Without the rich background of classical and natural-law principles defining the family, which were entirely 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.

Now let me turn to the second version of the “history and tradition” test, which in my view is much better and more nearly classical. It is on display in the Rahimi decision, with which Justice Thomas, the author of Bruen, was notably displeased and from which he dissented alone. Rahimi 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. It must attend to both the body and the soul of the law. In a crucial methodological passage, the Chief Justice wrote that the proper inquiry is not a search for narrow historical analogues to founding-era regulation, but rather an attempt to discern “the principles that underpin our regulatory tradition…. Discerning and developing the law in this way is a commonplace task for any lawyer or judge.” (Internal quotations omitted; emphasis added). The relevant law is not to be understood as “trapped in amber.” Rather the judge is to aim at “apply[ing] faithfully the balance struck by the founding generation to modern circumstances.” If this is still some version of originalism, it is an originalism so capacious, so open to reasoning from high-level principles, as to be operationally indistinguishable from the classical legal approach.

The aim of the development of the law, on Rahimi’s view, is to preserve the essence of constitutional principles while applying them under changed conditions — the very enterprise that St John Henry Newman urged in the parallel context of the development of theological doctrine, and that classical lawyers urge as itself the traditional approach to law over time. The classical approach holds that principles are enduring, but that as circumstances change, doctrine must itself “change in order to remain the same” - as Newman famously put it. As such, the classical approach offers a third way between two poles: on the one hand, Justice Thomas’ data-point version of history and tradition, with analogues allowed only at low levels of generality; and on the other hand free-form “living constitutionalism,” in which the principles immanent in the tradition can themselves be re-evaluated, changed or even discarded over time.

I hope that lower courts will follow the Rahimi approach, as they should. Two encouraging signs appear in the jurisprudence of our two judges here today. Perhaps not coincidentally, the two opinions involved Second Amendment challenges to two nearly adjacent sections of 18 USC 922. The first opinion is Judge Matey’s important concurrence in a recent en banc decision of the Third Circuit, Range v. United States. The issue in the case was whether the federal “felon-in-possession” statute, 18 USC 922(g), violates the Second Amendment. Judge Matey’s opinion put the issues in a coherent and clarifying framework. Although the Second Amendment right reflects a background fundamental natural right of “resistance and self-preservation” (Judge Matey here quotes Blackstone), one that antedates and informs the particular specification of that right in the constitutional text, it is also true that “fundamental rights that predate America are not unlimited, and like any law, never license acting contrary to the common good” (Judge Matey here cites and quotes both James Wilson and St. Thomas Aquinas — in the best style of 18th and 19th century American judicial writing, which frequently drew upon both Anglo-American and continental sources from centuries or millennia before the founding, as part of a larger continuous European legal tradition). For Judge Matey, historical sources are not merely positivist evidence of the original understanding. Rather, “[s]urveying history helps us understand the reasons relied on to regulate the right … ensuring a ‘[c]ontinuity of [p]rinciples’ faithful to our inherited tradition.” This offers a better explanation for why judges ought to care about history and tradition, an explanation sorely lacking in many expositions of the test. Judge Matey, as I read him, understands tradition not as a set of empirical data points, but as a set of reasoned principles of constitutional governance, of which history and tradition are evidence. This is the second and far better version of the approach.

Another hopeful sign is Judge Larsen’s opinion for the panel in United States v. Gore — no, not Al Gore. This decision involved, not 922(g), but 922 (j) and (n). Simplifying somewhat, the statute made it a crime for one under a felony indictment to receive a stolen firearm. Judge Larsen rejected the facial challenge under the Second Amendment, holding that the government had met its burden of showing that the prohibition “fits within our nation's historical tradition of firearm regulation.” Judge Larsen’s illuminating contribution was to reason, not merely from the brute fact of historical data points, but from the larger principles of the tradition — here, the rationale for the whole history and tradition of Anglo-American pre-trial detention. As she puts it, that tradition explained “the ‘why’ and ‘how’ of § 922(n)… There are obvious justifications for regarding [pretrial detention] as an exceptional time: if a person obtains a gun once indicted, it might give rise to an inference that he has nefarious intentions toward a witness or victim, or toward law enforcement or court personnel…. In other words, § 922(n) furthers public safety between charge and conviction or acquittal … and protects the integrity of the criminal process.”

Judge Larsen’s opinion and Judge Matey’s concurrence exemplify a style of judging that offers a refreshing departure from the usual approaches, and is itself traditionally grounded, authentically American — a style of judging that is, paradoxically, more consonant with the founding era and our subsequent history and tradition than is the positivist data-point version of history and tradition.

We have to beware of a false alternative that is often advanced: Unless the judge sticks closely to historical data points, the judge will be utterly untethered, free to apply the judge’s own “preferences” or “policy views” or “values.” This false alternative overlooks that there is a third path: the elaboration and development of rational principles underlying the tradition, principles that are external to the judge because they are immanent in the tradition itself, and are thus not reducible to the judge’s own “preferences,” but that are also intelligible to legal reason and identified by irreducible legal judgment. It is heartening to see this distinctly classical approach reappear both in the lower courts, in the work of Judges Larsen and Matey, and at the Supreme Court.