“What Shakespeare is to the high school English student,” Scalia said, “the society’s accepted constitutional traditions are to the prudent jurist.
“He does not judge them, but is judged by them. The very test of the validity of his analytic formulas—his rules—is whether, when applied to traditional situations, they yield the results that American society has traditionally accepted.”
The real heart of Scalia’s jurisprudence isn’t “originalism” or “textualism” but his belief in “traditions” he attributes to (and often projects onto) “the people.” As he argued in U.S. v. Virginia–the case in which the Court, with Scalia as the lone dissenter, ruled that Virignia’s exclusion of women from a particular form of education was unconstitutional–“[w]hatever abstract tests we may choose to devise, they cannot supersede–and indeed ought to be crafted so as to reflect–those constant and unbroken national traditions that embody the people’s understanding of ambiguous constitutional texts.” In terms of intellectual merit, I think the illiberal claim that traditions are self-justifying has little. As a jurisprudence, it has many of the problems associated with originalism, most notably facilitating a judge’s ability to switch between various levels of abstraction and ways of construing issues in order to reach the desired result. (Is the “tradition” at stake in U.S. v. Virgina that American tradition of discriminating against women, of the tradition of expanding rights to previously discriminated against individuals and treating people equally before the law? Everything turns on the answer, and invoking “the traditions of the American people” is unhelpful.) Talking about the traditions of “the people” in a pluralistic society is not terribly useful, and will for obvious reasons tend to deny constitutional protection to classes of people who most need it. And like orginalism, it is a political as opposed to strictly legal choice (nothing about the nature of constitutionalism demands any method of interpretation) designed to produce reliably reactionary policy results. It is not surprising that the particular tradition adduced by Scalia in the VMI case happened to be the one consistent with the most conservative wing of the Republican Party.
But we should be clear about the implications of Scalia’s theory. To the extent that it has any content at all–that its conception of national traditions isn’t so open-ended that it could justify any outcome in any interesting case–Brown v. Board and Loving v. Virgina, for starters, are clearly incorrectly decided. The text of the equal protection clause is ambiguous, and there were long, deeply embedded national traditions of requiring segregated schools and prohibiting interracial marriages. Once we’ve decided that national traditions bind courts and pre-empt the critical assessment of institutional practices and their consistency with the requirements of the Constitution, one can’t pick and choose which traditions count and which don’t. Far from being an attractive method, Scalia’s concept of unassailable traditions of injustice is at war with the best traditions of American constitutionalism.