The Traditions of American Constitutional Law

Marc O. DeGirolami*

This Article identifies a new method of constitutional interpretation: the use of tradition as constitutive of constitutional meaning. It studies what the Supreme Court means by invoking tradition and whether what it means remains constant across the document and over time. Traditionalist interpretation is pervasive, consistent, and recurrent across the Court’s constitutional doctrine. So, too, are criticisms of traditionalist interpretation. There are also more immediate reasons to study the role of tradition in constitutional interpretation. The Court’s two newest members, Justices Neil Gorsuch and Brett Kavanaugh, have indicated that tradition informs their understanding of constitutional meaning. The study of traditionalist interpretation seems all the more pressing to understand certain possible jurisprudential moves in the Court’s future.

This Article concludes that when the Court interprets traditionally, it signals the presumptive influence of political and cultural practices of substantial duration for informing constitutional meaning. Traditionalist interpretation is thus constituted of three elements: (1) a focus on practices, rather than principles, as informing constitutional meaning; (2) a practice’s duration, understood as a composite of its age and continuity; and (3) a practice’s presumptive, but defeasible, interpretive influence. Traditionalist interpretation’s emphasis on practices that are given tangible form in a people’s lived experiences suggests that it is preferable to speak about politically and culturally specific traditions rather than an abstracted concept of tradition. Hence, “the traditions of American constitutional law.”

This Article identifies traditionalist interpretation as its own method; shows its prevalence and methodological consistency across the domains of constitutional interpretation; isolates and examines its constituent elements, comparing them against other prominent interpretive approaches; and infers and explains the justifications of traditionalist interpretation from the doctrinal deposit. While there may be some irony about a claim of novelty in an article about tradition, what this Article identifies as new is not the invocation of tradition as such, but the isolation of a recurrent and consistent method—traditionalist interpretation—adopted by the Court across its interpretive work. It aims to bring to light an overlooked and yet frequently used interpretive practice, and to understand its structure, situation, and purpose within the Court’s constitutional doctrine.

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© 2020 Marc O. DeGirolami. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Cary Fields Professor of Law, St. John’s University School of Law. Thanks to Stephanie Barclay, Ian Bartrum, William Baude, Samuel Bray, Nathan Chapman, Matthew Franck, Richard Garnett, Paul Horwitz, Randy Kozel, Anita Krishnakumar, Monica Lugato, Mark Movsesian, Robert Nagel, Jeffrey Pojanowski, Stephen Sachs, Steven Smith, John Stinneford, Lee Strang, Kevin Walsh, and George Wright for comments at various stages of this Article’s development. Thanks also to Daniel Vitagliano and Thomas Cilla for research assistance. This Article was completed while I was a visiting fellow at Princeton University’s James Madison Program in American Ideals and Institutions. I thank my dean, Michael Simons, and the Madison Program for their support.