The Arrival of Legal Traditionalism

Law’s inherent conservatism is apparent in legal argument. A legal argument that asks a court to change existing law is bound to fail. The most persuasive arguments revolve around what already is and not what an advocate or anyone else thinks ought to be. When judges ultimately decide cases, they do so based on precedent, evidence of how ambiguous terms and doctrines have been interpreted in the past.

By contrast, legislation is progressive. That does not necessarily mean it is left-wing, but it is built on the premise that things are not as they should be. If the law identifies how things are, it can be the basis for legislation by identifying how our rules ought to change to accomplish various goals.

These different exercises of power correspond to the different ways each institution gains the authority and expertise to make pronouncements that will bind a political community. Supreme Court Justices are trained as lawyers and are appointed, not elected; their expertise synthesizes precedents into rules and doctrines, so they are vested with what the Constitution calls “the Judicial Power.” They lack the democratic authority and expertise to identify the public good and change the nation’s course. Legislators are “experts” in representing their constituents and fashioning compromises ratified by enough representatives to achieve consensus. They are vested with “all legislative power,” or the authority to advance the public welfare.

That law and legislation are distinct in this way is so fundamental to government by the rule of law it almost seems redundant to reiterate. It is necessary, though, because considerable carelessness with these principles over the past century has led to a great deal of confusion about what role each institution is supposed to play in our republic. That, in turn, has led to widespread difficulty in grasping the theoretical foundation for high-profile Supreme Court decisions in recent years.

The arc of Supreme Court decisions over the past century attests to that confusion. It is suspicious at best that most of the major social progressive victories in recent years came through courts interpreting legal provisions to mean entirely new things. Justices who believed they could reinterpret constitutional provisions based on their abstract reasoning determined that Americans had misinterpreted much of the Constitution for decades if not centuries. The Due Process Clause suddenly contained hidden protection of abortion rights; the Equal Protection Clause suddenly required states to recognize same-sex marriage – though in both cases, states had proscribed the “right” consistently ever since those clauses were ratified in 1868. The problem is not simply the invention of new rights, but the Court announced that it had discovered a meaning no Americans had given the provision for hundreds of years. For a conservative institution, the law was making great progress. Doing so collapsed the distinction between law and politics, destabilized the legal backdrop against which regular citizens live, and created an arms race for control over the courts.

It is no surprise, then, that the conservative legal movement’s reaction to judicial legislation through reinterpretation was articulating a theory of judging that revolved around finding a legal provision’s fixed meaning. (This principle is known as “fixation.”) Originalism comes in many flavors, but all center on trying to figure out what the yet-unchanged law is so that judges can apply it to a case at hand. If legislators want to change the law, that is their prerogative. But courts are only competent and authorized to state the prevailing state of affairs.

This observation about the difference between legal reasoning and legislative action is the core insight of the Court’s ascendant theory of constitutional interpretation. It has reasonably been called “traditionalism,” as it looks to text, history, and tradition to find the line between constitutionally protected behaviors and lawful state actions. It rests upon the idea, inherent to law as something distinct from politics, that a law remains unchanged until changed by authorized means. It wholly rejects the idea that judges can reason their way to determining whether an asserted state power violates an individual right because of the regulation’s wisdom or the right’s importance. Instead, it demands that judges look at the emergent behaviors of the American people to see whether their actions evince an understanding that some behavior was or was not considered a constitutional right.

The most significant decisions from a paradigm-shifting Supreme Court term culminating in June 2022 employed some traditionalist reasoning. In Kennedy v. Bremerton School District, the Court appealed to traditionalism to apply the First Amendment's Free Exercise and Establishment Clauses. In his majority opinion, Justice Neil Gorsuch determined that “the Constitution and the best of our traditions” require us to construe the First Amendment to allow public employees to engage in religious expression even when still arguably acting in their capacity as civil servants – all part of “a long constitutional tradition” of “learning how to tolerate diverse expressive activities.”

In N.Y. State Rifle & Pistol Association v. Bruen, Justice Clarence Thomas explicitly endorsed traditionalism as an alternative to the abstract reasoning that had dominated Second Amendment interpretation. Though previous Courts had aimed to determine the constitutional limits on gun regulation by asking questions about whether the regulatory means fit their public-policy ends, Bruen announced that for such regulation to pass Second Amendment muster, “the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”

And in Dobbs v. Jackson Women’s Health, the Court revisited the question of whether the Fourteenth Amendment’s Due Process Clause included the right to an abortion. The relevant question was not whether abortion rights or abortion regulations were more worthwhile but whether the right to have an abortion was “deeply rooted in this Nation’s history and tradition.” Based on an examination of state abortion laws throughout American history, the answer was clearly ‘no.’

While these decisions all reflect a traditionalist orientation, they do not all draw upon tradition similarly. Kennedy did not rely upon concrete traditions so much as a narrative about the role of religious expression in the “best of” American traditions. Dobbs engaged in a traditionalist inquiry as an intermediate step towards determining whether the right should be considered “fundamental” under Fourteenth Amendment jurisprudence, which meant it still engaged in a non-traditionalist rational-basis analysis after the long traditionalist analysis. Bruen was the most purely traditionalist from start to finish.

Likely in part because the Court’s traditionalist turn was unmistakable but unevenly deployed, academics have been busy grappling with what the Court is doing and whether it fits with the long-anticipated originalist commitments expected of it. Some academics and critics have criticized traditionalism as incompatible with originalism. One powerful criticism is that the Court has embraced “living traditionalism,” improperly looking for constitutional meaning in post-ratification practices despite originalism’s requirement that the originally ratified law control. Another is that traditionalism subordinates legal text to uses of government power, potentially allowing states to nullify constitutional rights by ignoring them for a sufficient time. This would also violate one of originalism’s great lessons, that the law has a public meaning independent of how some or even many state actors apply it.

These critiques are fair and powerful insofar as traditionalism has reached its terminus. But a more charitable reading of the Court’s trend is to see its traditionalist decisions as a step towards a fully recovered understanding of the Justices’ role in our constitutional order. The Court appears to be rejecting the orientation of judging that led to legislating from the bench. In its place, it has begun reinstituting a much older and more appropriate orientation, requiring judges to determine a legal provision’s meaning by examining how it manifests in Americans’ lives. This is akin to common-law judging, which articulates legal doctrines from unspoken but widespread norms reflecting a political community’s shared sense of right and wrong. Applied thoroughly and carefully, traditionalism should cause originalists to celebrate the fact that the Court returns to a restrained view that takes public meaning seriously.

For one thing, traditionalism revolves around fixation. The beating heart of traditionalism is the conviction that if a tradition has emerged in a certain area of the law – treating behavior as a right, for example, or circumscribing it with certain regulations – it reflects the law’s unchanged meaning. Looking at post-ratification behaviors, then, is not treating the legal provisions themselves as “living” but looking at how the American people brought them to life by conforming their behavior to the legal regime that the new provision created. Mass behaviors, emerging through the iterative process of law enforcement and conformance of conduct, reflect interpretation. And identifying those behaviors can show that a law’s meaning has already crystallized. As Justice Scalia famously put it at oral argument in one of the early same-sex marriage cases, “when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted?” If the Equal Protection Clause took on a certain meaning after its ratification, which is evident in how states regulated marriage, it would violate fixation to reinterpret the Clause centuries later based on an abstract reading of the text.

Put another way, traditionalism strongly emphasizes finding a legal provision’s original public meaning. What could provide greater evidence of what a law means to the public than how the public incorporates it into their lives? Individuals, corporations, and other institutions determine what a law means by responding to it, changing their ways when they fear legal repercussions, and generally conforming their behavior to emergent norms.

Rather than trying to reconstruct a public meaning in the abstract, traditionalism encourages judges to observe public meaning in concrete behaviors. For now – and this is one source of the unevenness that unnerves originalist critics – the Court has looked at the concrete behaviors of state actors, especially state legislatures. But one way to bridge the gap between traditionalist and originalist theory is to look at the behaviors of all Americans and our institutions in the aftermath of a law’s ratification. To solidify its traditionalist jurisprudence, the Court should take the notion that everyone interprets more seriously. Our laws belong to everyone, regulate everyone, and shape our lives in mundane and profound ways, from how we drive our cars to how we pray. The reality traditionalism reflects is that people living under a legal regime develop collective expertise in following the law.

With a clearer view of what justifies its traditionalist intuitions, the Court has an opportunity to right many residual wrongs from its past misadventures. It should continue rolling back inventions in substantive law – the law of criminal procedure, for instance, is littered with mid-20th-century judicial innovations with no basis in our constitutional traditions – but that is not all. Our politics and social culture have suffered from thinking the Justices will solve problems by veering from their lane and acting as philosopher-kings. By clarifying that it will only engage in legal reasoning, the Court can nudge Congress back to doing its job of engaging in legislative reasoning. And a long stretch of traditionalist jurisprudence will signal that Americans are responsible for ruling themselves; we must try to persuade one another, not the Court, that our laws, norms, and best of our traditions mean conducting our affairs one way or another. Change happens through legislation. There will be no brass ring or national regime declared by Court fiat.

Traditionalism is worth pursuing even if it has not yet fully worked itself out. It is just beginning to blossom under a Court keenly aware of its historical role in incentivizing sclerotic government and a contentious culture. Traditionalism is intuitively appealing because it coheres with the law’s inherent conservatism. As a form of public-meaning originalism, it can and likely will make great strides in pushing our constitutional order back to self-government and the rule of law. Will American citizens and their representatives follow the Court’s lead?

Tal Fortgang is an adjunct fellow at the Manhattan Institute.