Publication Date

2025

Abstract

From cases spanning gun rights, reproductive freedom, religious liberty, and personal jurisdiction; to separation of powers and other structural features of the Constitution, courts increasingly rely on tradition to guide their decisions.

Often, judges appeal to tradition in a vaguely empirical way, as “facts to study, not convictions to demonstrate about,” in the words of Justice Antonin Scalia. Yet, for a claim that purports to be factual, there’s very little agreement, or even analysis, about what renders this factual assertion—tradition—true or false. This article tackles that foundational issue.

Part I surveys the ways in which courts deploy tradition in adjudication: as evidence of intentions, expectations, or public meaning; as proof of “constitutional liquidation” or historical gloss; as evidence of original methods or original law; as a freestanding legal constraint; as a resource for living constitutionalism or popular constitutionalism; or as the source of a national “ethos” or natural law axioms.

Part II explores the reasons courts and other lawmakers resort to tradition. In sum, lawmakers use tradition for a number of 2 instrumental reasons: as a coordination device, especially in the presence of first-order theoretical disagreements; as a rough estimate of intergenerational democratic consensus among some political constituency; as a tool of judicial restraint; as a casual empiricist’s method of applying Condorcet Jury Theorem to a matter of public law or policy; as a form of national-identity building; and as a rhetorical device.

Part III supplies the basic definitional parameters of a more fact- bound, empirical notion of tradition. At the very least, tradition—in any non-rhetorical form—has a phenomenological, demographic, and temporal component. This observation may seem trivial, but the simplicity of the parameters disguises significant complexity about what phenomenon to code, among what demographic, and over what duration.

Part IV discusses the potential implications of adopting a definition of tradition along the lines explored here. First, it explains how the method for determining tradition offered in this article doesn’t answer whether any particular assertion of tradition is false, but supplies a criterion for deciding whether an assertion of tradition is false. Second, it explores procedural devices to apply this more rigorous notion of tradition in adjudication. It then suggests how other areas of law that also rely on evidence of practice, like contracts, torts, and international law, could benefit from being more empirically grounded. It then discusses how modern technology could aid in realizing this more empirically robust conception of tradition. Part IV ends by explaining the benefits of a more rigorous notion of tradition, even if the factual truth of a tradition cannot itself dictate a normative conclusion.

Number

25-37

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