Academic journal article
By Eskridge, William N., Jr.
Harvard Journal of Law & Public Policy , Vol. 32, No. 1
INTRODUCTION I. TRADITION KNOWN TO THE FRAMERS AS EVIDENCE OF ORIGINAL MEANING A. Anachronism: The Changed Circumstances Problem B. Cherry-Picking Problems: How Is Tradition Interrogated and Weighed? 1. Multiple Traditions and the Level of Generality Problem 2. What Counts as Tradition? 3. Burden of Proof? C. Illegitimacy Problems II. POST-ADOPTION TRADITION AS CONSTITUTIONAL ADVERSE POSSESSION A. Anachronism B. Cherry-Picking C. Illegitimacy III. TRADITION AS DEMOCRATIC DELIBERATION CONCLUSION
The Rehnquist and Roberts Courts have inaugurated a golden age for tradition-based arguments in constitutional law. All of the Justices consider such arguments, and several are amateur historians who have centered their jurisprudence on what constitutional traditions require of us today. Such arguments are the primary legal basis for whole areas of constitutional law, including presidential powers, state immunity, anti-commandeering limits on congressional authority, and the rights to privacy, to keep and bear arms, to habeas corpus, and to be free of cruel and unusual punishment. Other areas of constitutional law, such as equal protection and free speech, are not dominated by these arguments today but might be in the future.
Arguments from tradition raise a central conundrum. Lawyers and judges tend to interpret "tradition" statically and instrumentally, to mean legal practices or norms that have persevered over a long period of time and that provide stable meaning that can be used to resolve a legal issue. The static understanding is related to the instrumental use, because lawyers and judges prefer simplicity to complexity. In contrast, historians approach tradition dynamically and non-instrumentally, to mean legal practices or norms that as a general principle have persevered in some ways and evolved in others. Tradition is rarely simple and univocal; it is multifarious, evolving, and complicated. This understanding creates problems for the judge wielding tradition instrumentally. That tradition is evolving creates risks of anachronism, where the interpreter reads his own values and viewpoint back into the past. That tradition is multifarious creates risks of cherry-picking, where the interpreter (unconsciously) manipulates tradition by focusing on features she finds congenial and ignoring the rest and by interrogating that fragmentary tradition with loaded questions. That tradition is complicated creates risks of illegitimacy, where the interpreter's misinterpretation or manipulation imposes duties or creates rights that obstruct the needed projects and experiments of current legislatures.
This Essay uses case studies of sodomy and gun litigation to explore three values that lawyers and judges find in tradition, and also to understand those values critically, from a historian's point of view. Tradition shall be examined as evidence of original meaning, constitutional adverse possession, and precepts conformed by democratic deliberation. Each of these deployments of tradition is subject to the anachronism, cherry-picking, and illegitimacy problems identified above. In my view, the most problematic use of tradition is the first, tradition as evidence of original meaning. The best legal theory for tradition in constitutional law is the third, tradition as democratic deliberation. The third theory is the one that most respects the historian's dynamic point of view; it can enlighten the interpreter and alter his views about contested matters. This theory provides plausible defenses not only for a laudable Supreme Court decision, but also for two other decisions whose outcomes are questionable.
I. TRADITION KNOWN TO THE FRAMERS AS EVIDENCE OF ORIGINAL MEANING
The Supreme Court and many commentators believe that a constitutional provision's original meaning is determinative of or relevant to its modern interpretation. …