The ongoing debate among legal scholars and justices regarding the compatibility of originalism and traditionalism remains a salient issue in constitutional interpretation. Originalists, who maintain that constitutional provisions should be understood as they were at the time of ratification, often balk at incorporating post-ratification practices into their analysis. However, as recent discussions on SCOTUSblog indicate, there might be a place for traditionalism within originalist frameworks.
Originalism emerged as a counter to what some perceived as judicial overreach in the mid-20th century, with interpretations that were argued to be detached from the original intentions of legal texts. The response was a focus on the “original public meaning” of constitutional texts at the time of their enactment. However, the debate arises when considering whether post-ratification practices should inform the understanding of these texts.
Some theorists point to James Madison’s concept of “liquidation,” where indeterminate legal meanings are clarified through governmental practices over time. This notion suggests that these practices can guide the interpretation of constitutional provisions as they become embedded in societal norms and behaviors.
Despite resistance, the recognition of traditionalism is apparent in recent Supreme Court decisions. In the landmark 2021-22 term, justices like Samuel Alito and Neil Gorsuch employed traditionalist reasoning to examine the historical and societal context of the laws, from abortion rights to religious expression in public spaces.
The critics, however, caution against what some describe as “living traditionalism,” where post-ratification practices that don’t specifically illuminate original meaning may inadvertently alter the constitutional scope. They assert that these practices should only “supplement” rather than contradict the foundational meaning as understood at ratification. Yet, it is undeniable that societal practices provide clues to how constitutional rights have been interpreted and applied practically.
Overall, this intersection of originalism and traditionalism underscores a crucial aspect of legal interpretation: what evidence can justifiably contribute to understanding the Constitution’s enduring tenets. While challenges remain in interpreting historical and social evidence, the attempt to incorporate a broader narrative may enrich the courts’ pursuit of judicious decisions reflective of both historical context and societal evolution.