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 use tradition in different constitutional and interpretive modalities. Part II explores the instrumental reasons courts and other lawmakers resort to tradition. 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 these 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 and outlines procedural devices to apply this more rigorous notion of tradition. The Article concludes by explaining the benefits of a more empirically rigorous notion of tradition, even if the factual truth of a tradition cannot itself dictate a normative conclusion
Number
25-37
Recommended Citation
Miller, Darrell A.H., "Falsifying Tradition" (2025). Public Law and Legal Theory Working Papers. 25-37. https://chicagounbound.uchicago.edu/public_law_and_legal_theory/25-37
