The Use and Abuse of Tradition: A comment on DeGirolami’s Traditionalism Rising

Abstract

Marc DeGirolami’s essay, Traditionalism Rising, argues that the Supreme Court is now deploying what he calls “traditionalist methodology” to decide cases, and that when it cites tradition it is following a “larger, longstanding interpretive method” for deciding cases.

The paper is a valuable contribution that documents an important trend. The Court is in fact invoking tradition with remarkable frequency. But it is a mistake to call what the Court is doing a single “methodology.” Tradition is relevant in different ways in different contexts. It is confusing to conflate them.

In many of the cases that DeGirolami cites, “tradition” is so malleable that it has no independent capacity to influence the outcome of cases. There is a method, but it consists in the deployment of traditionalist rhetoric to clear away obstacles to the destination that the Court desires to reach. Among those obstacles are state interests of the highest order – for instance, the safety and security of citizens, which are jeopardized by the destruction of longstanding limits on firearms.

The method is also a tool for nullifying annoying constitutional provisions. Some of those provisions, notably the Establishment Clause and the Reconstruction amendments, directly attack tradition. They are specifically designed to reject longstanding evils – pertinently for the Court’s recent work, the practice of compelling women to bear children.

Keywords: religion, abortion, traditionalism, Marc DeGirolami

JEL Classification: K10, K30, K32, K36