Judges who are committed to originalism, which seeks to interpret the Constitution based on what it meant when it was adopted, often say they are guided by “text, history and tradition.” The phrase rolls nicely off the tongue.
But one of those things is not like the others, a conservative federal appeals court judge said this month in a lively talk at Harvard Law School that critiqued recent trends at the Supreme Court.
“Traditionalism gives off an originalist ‘vibe’ without having any legitimate claim to the originalist mantle,” said the judge, Kevin C. Newsom, who was appointed to the U.S. Court of Appeals for the 11th Circuit in 2017 by President Donald J. Trump. “It seems old and dusty — and thus objective and reliable. And maybe it is indeed all those things. But let’s be clear: It’s not originalism.”
The Supreme Court’s blockbuster 2022 decisions eliminating the right to abortion and expanding gun rights both drew on traditions that emerged after the constitutional provisions in question were ratified. The rulings did not turn on their discussion of tradition, but nor were they minor asides.
Scores of decisions, including ones from every avowed originalist justice, have relied on post-ratification traditions, as Sherif Girgis, a law professor at Notre Dame, demonstrated in a comprehensive exploration of the topic published last year in The New York University Law Review.
“Though increasingly dominant in this originalist court’s opinions,” he wrote, “the method has no obvious justification in originalist terms.”
Professor Girgis called his article “Living Traditionalism,” a nod to, and dig at, originalism’s liberal counterpart, “living constitutionalism,” which takes account of societal changes and contemporary circumstances in interpreting the nation’s founding charter.
“Living-traditionalist rulings have addressed the separation of powers between Congress and the president, federal-courts issues, states’ rights and individual rights,” Professor Girgis wrote. “They have construed provisions in all three articles defining the three branches, all 10 amendments in the Bill of Rights (minus the Third) and the 14th Amendment.”
“Yet,” he wrote, “the court’s reasons for taking a living-traditionalist approach have been murky.”
The other two parts of “text, history and tradition” are proper considerations for originalists, Judge Newsom said, at a conference sponsored by The Harvard Journal of Law & Public Policy, which will publish his lecture.
Text is easy: The words of the Constitution are, of course, the best evidence of its meaning.
But those words are old, and history can illuminate what they meant when they were adopted, Judge Newsom said.
Tradition — by which judges and scholars generally mean official acts taken after, and sometimes long after, ratification — is another matter. “Traditionalism involves the invocation of and reliance on principles and understandings that are vaguely old-ish,” the judge said, but that “have no demonstrable connection to the original, written text.”
Indeed, he said, “I worry that traditionalism provides far too amorphous and manipulable a criterion.”
In a concurring opinion in the Second Amendment case, Justice Amy Coney Barrett questioned the majority’s methodology along those lines, saying diplomatically that it “does not conclusively determine the manner and circumstances in which post-ratification practice may bear on the original meaning of the Constitution.”
Among the questions she said the majority had left open: “How long after ratification may subsequent practice illuminate original public meaning?”
A prime example of looking to tradition is the Supreme Court’s 2014 decision in National Labor Relations Board v. Noel Canning, which endorsed some recess appointments by presidents based on practices long after the ratification of the Constitution. Justice Stephen G. Breyer, writing for the majority, said the court should “hesitate to upset the compromises and working arrangements that the elected branches of government themselves have reached.”
In a book to be published next month, Justice Breyer, who retired in 2022 and is decidedly not an originalist, defended his approach. “Longstanding practice matters,” he wrote in the book, whose title sets out his position: “Reading the Constitution: Why I Chose Pragmatism, Not Textualism.”
“The public’s methods for managing their affairs will need to change with the circumstances,” Justice Breyer wrote. “The judge’s job is not to read literally those constitutional provisions written 250 years ago without regard to such changes.”
Justice Antonin Scalia, a leading originalist who died in 2016, disagreed with much of Justice Breyer’s majority opinion in the recess-appointments case. But he agreed that there was a role for traditionalism. “Where a governmental practice has been open, widespread and unchallenged since the early days of the Republic,” Justice Scalia wrote, “the practice should guide our interpretation of an ambiguous constitutional provision.”
Professor Girgis has a theory for why, as he put it in an email, “traditionalism is on the rise under an originalist court.”
“Now that originalism has gone from an opposition movement to the governing party, so to speak, it’s running into trouble where the text is spare and ratification-era debates don’t shed much light on original meaning or intent,” he wrote.
Traditionalism can be, he said, “the second-best option” as it “at least tries to rest decisions on something other than the judges’ own value and policy judgments.”