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09/08/2022

Marc DeGirolami: Traditionalism Rising
Michael Ramsey

Marc O. DeGirolami (St. John's University - School of Law) has posted Traditionalism Rising (Journal of Contemporary Legal Issues, forthcoming) (49 pages) on SSRN.  Here is the abstract:

Constitutional traditionalism is rising. From due process to free speech, religious liberty, the right to keep and bear arms, and more, the Court made clear in its 2021 term that it will follow a method that is guided by “tradition.”

This paper is in part an exercise in naming: the Court’s 2021 body of work is, in fact, thoroughly traditionalist. It is therefore a propitious moment to explain just what traditionalism entails. After summarizing the basic features of traditionalism in some of my prior work and identifying them in the Court’s 2021 term decisions, this paper situates these recent examples of traditionalism within this larger, longstanding interpretive method. Contrary to many claims, there is little that is entirely new or unexpected, other than the Court’s more explicit embrace of traditionalism this term than in the past. The paper then distinguishes traditionalism from originalism, focusing especially on what some originalists have called “liquidation.” Finally, it raises and considers one comparatively straightforward and two more difficult problems for traditionalism: (a) the problem of selecting the operative “level of generality” for any tradition; (b) the problem of tradition’s moral justification, offering possibilities based on the connection between enduring practices and (1) human desires, (2) virtues or legal excellences, or (3) natural law determinations; and (c) the problem of traditionalism’s politics.

(Via Larry Solum at Legal Theory Blog, who says: "Highly recommended.  An important and timely statement.  Download it while it's hot!")

I think the key question (to which I don't have an answer) is to what extent traditionalism is different from originalism rather than being a methodology of originalism.  I'm not sure the Court has an answer either, at least not yet. (Scalia, in my view, thought it was a methodology of originalism.)

Also, it's great to see the Journal of Contemporary Legal Issues (JCLI), the University of San Diego law school's faculty-run journal, back in operation after a brief hiatus and publishing important work.