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Sherif Girgis: Living Traditionalism
Michael Ramsey

Sherif Girgis (Notre Dame Law School) has posted Living Traditionalism (59 pages) on SSRN.  Here is the abstract:

Today’s Supreme Court is committed to originalism—the idea that constitutional law is fixed at ratification. But it often rests decisions on the post-ratification practices of other actors—Presidents, Congresses, or states. Call this method “living traditionalism”: “traditionalist” because it looks to political traditions, and “living” because the traditions postdate ratification. The method is ubiquitous but undertheorized, in part because its distinctness from “liquidation”—a variant of traditionalism that is consistent with originalism, but that rarely drives any cases—has not been understood.

This Article offers the first comprehensive analysis of the Court’s living traditionalism, which turns out to include scores of cases spanning every subject and Justices of every stripe. Next, the Article identifies a fundamental but previously unrecognized tension in the method itself: If the Court gives living-traditionalist cases full weight as precedent, it defeats the reasons for using the method at all. Put another way, it is incoherent to treat political practices as a ratchet: capable of moving law in one direction (e.g., against a right in 2022) but not the other (for the right later on). Yet today’s Court is at risk of doing that, making constitutional law turn on accidents of history: whatever practices happened to exist when the Court first addressed an issue. Finally, the Article proposes solutions to this predicament. Where the Court does not simply retreat from living traditionalism, it should write living-traditionalist rulings so that they expire when practices change, or else modify stare decisis to make these cases easier to overturn. And political actors for their part can change traditions—including by resisting Court precedents encasing old traditions—through “soft” and “hard” law options that caselaw invests with constitutional significance. Politics could thus shape sundry individual-rights and separation-of-powers doctrines. Absent such reforms, the Court’s application of living traditionalism will prove increasingly at odds with any plausible rationale for using the method at all.

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

There was an element of this sort of traditionalism in Justice Scalia's approach (see here, Part I.C.), which undertheorized as the articles says -- in particular it was never entirely clear whether Scalia used it as a way to establish original meaning or as a supplement.