Finding the Constitution: An Economic Analysis of Tradition's Role in Constitutional Interpretation

Abstract:     
In recent years, the Supreme Court has increasingly looked to "tradition" as a source of constitutional values. Justice Scalia has articulated a majoritarian view of tradition that looks to the legislative practices of state legislatures. Justice Souter has articulated a model that looks to Supreme Court precedent as a source of tradition, so-called "common law constitutionalism." Both have also found recent academic adherents: Michael McConnell has defended Scalia?s model, and David Strauss has done the same for Souter. While Scalia, Souter, and their academic followers are correct in celebrating tradition as a source of constitutional values, they have celebrated the wrong traditions. In this paper, we develop a model of tradition and show how tradition, properly understood, can be a source of constitutional values. Tradition is compatible with constitutionalism in identifying widely-shared community values that should be subject to constitutional precommitment and can be an effective mechanism for constitutional change. "Constitutionally efficient" traditions are those that emerge from decentralized evolutionary processes over a long period of time, bubbling up from society. The sources of tradition articulated by Scalia and Souter lack these conditions for constitutional efficiency; hence, they should be rejected as sources of constitutional values. We offer an alternative model of constitutionally-efficient traditions. Our article is followed by a Comment by Professor John McGinnis of Cardozo Law School and a brief Reply to McGinnis.

Accepted Paper Series