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David Bernstein:The Courts and Tradition
Michael Ramsey

David Bernstein (George Mason University - Antonin Scalia Law School) has posted The Courts and Tradition: A Begrudging Respect on SSRN. Here is the abstract:     

This essay discusses the role of tradition in American common law and constitutional law. With regard to common law, the essay argues that American common law as interpreted by the judiciary has been far less respectful of precedent (and therefore to some extent, of tradition) than has the common law in other countries. While other countries still often treat the common law as an autonomous discipline that should largely evolve organically from precedent, in the United States this notion has been under successful attack from legal realism and its successors, including critical legal studies and law and economics, for decades. Given that how the concept of the role of the common-law judge has changed since World War II, it’s not surprising that precedent from earlier eras plays less of a role in American jurisprudence than it does elsewhere.

With regard to constitutional law, this essay argues that the role of tradition was severely undermined by Brown v. Board of Education, because the defendants in Brown and their advocates tied the constitutionality of segregation to southern tradition. Tradition was also undermined when the Supreme Court decided that traditional notions of public morality,which once served as a valid “police power” rationale for legislation, were now given little constitutional weight. Indeed, in the context of gay rights, the majority, led by Justice Kennedy, has deemed traditional notions of sexual morality to amount to mere bigotry deserving of no weight, or perhaps negative weight, in constitutional decisionmaking. While conservative Justices often appeal to tradition, to the extent they rely on originalism the appeal is not so much to tradition as to history, as modern original public meaning originalism is only a few decades old and has never won the consistent approval of the Court’s majority.