Custom and Tradition Versus Reason in Modern Secular and Religious Moral Reasoning and in Modern Constitutional Law

51 Pages Posted: 2 Nov 2007

See all articles by R. Randall Kelso

R. Randall Kelso

South Texas College of Law Houston

Date Written: August 2007


As discussed in Part I of this article, contemporary debates over values, the so-called "Culture Wars," are best understood not as a debate between religious and secular ideologies, but rather a debate between traditional ideologies, whether religious or secular, which reflect customary or traditional norms, versus progressive ideology, whether religious or secular, which reflect rational deliberation about moral reasoning.

As discussed in Part II of the article, customary or traditional attitudes, both secular and religious, have supported, among other things, slavery, segregation and anti-miscegenation laws, denial of equal rights for women, anti-Semitism, rejection of the cosmology of Galileo, rejection of Darwinian evolution, limitations on access to birth control, limitations on stem-cell research, limitations on choice regarding abortion pre-viability, and denial of equal rights to gays and lesbians. In contrast, the perspective of adult reason commits one to the logical and rational elaboration of giving each individual what Ronald Dworkin has called "equal concern and respect," reflected in religious traditions by rational elaboration of the biblical imperative of "love of neighbor as oneself," or in classic Enlightenment terms by Adam Smith and the Scottish Enlightenment's concept of behaving according to the logic of an "impartial spectator."

In Part III of the article, it is noted that a major difference among Supreme Court Justices is the extent to which broad terms in the Constitution, like liberty or equality, should be read consistent with customary and traditional beliefs, a view supported by Justices Scalia and Thomas, or should be read in light of the demands of reason, the position of Justices Stevens, Kennedy, Souter, Ginsburg, and Breyer. It is too early to tell how the Chief Justice Roberts, replacing Chief Justice Rehnquist, and Justice Alito, replacing Justice O'Connor will resolve this issue in cases coming before them, but they may adopt more the perspective of Justices Scalia and Thomas.

In Part IV of the article, assuming a majority of Supreme Court Justices remain committed to doctrinal development consistent with reason, Part IV sketches aspects of current constitutional doctrine, and possible doctrinal development in the future, consistent with that vision.

Suggested Citation

Kelso, R. Randall, Custom and Tradition Versus Reason in Modern Secular and Religious Moral Reasoning and in Modern Constitutional Law (August 2007). Available at SSRN: or

R. Randall Kelso (Contact Author)

South Texas College of Law Houston ( email )

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