This chapter defines traditionalism in American constitutional law, drawing from the rich deposit of the common law as an analogy to what the Supreme Court is now doing in constitutional law. It identifies traditionalism’s components in three elements: (1) political practices (2) of long duration that (3) are given presumptive authority in determining the law of the Constitution. It concludes by arguing that the method is actually of much longer lineage than one might think if one only looked at Supreme Court cases of the last few years.

This chapter offers the first of two defenses of traditionalism. It argues that our enduring practices are often the way in which we achieve human excellence in any given activity, whether that is a sport or an art or a language or a craft. Relying on the work of Alasdair MacIntyre, it contends that this understanding of a practice as constitutive of a tradition can help us make sense of and appreciate a similar phenomenon in constitutional law. It uses the examples of the law of the Second Amendment and personal jurisdiction in civil procedure to sketch what traditionalism looks like in our constitutional law.

This chapter undertakes a detailed comparison between traditionalism and other theories of constitutional law. It first distinguishes the activity of constitutional interpretation from that of determining what the law of the Constitution is. Next, it compares originalism and traditionalism, and after that nonoriginalism and traditionalism. The upshot is that traditionalism can certainly be consistent with at least some varieties of originalism, but the ends of the theories are different. The same is true of most nonoriginalist theories, which are largely theories of interpretation. The chapter concludes by considering various cases of possible conflict between text and tradition to see which has, historically, tended to trump the other. The historical examples suggest that tradition holds its own in such cases. But the conflict is unlikely to come up very often, for reasons the chapter describes.

This chapter argues that the second core justification for traditionalism concerns the mechanisms through which the American people become bound to their Constitution and the civic affection necessary to sustain the American democratic republic. This emotional side of the Constitution has been largely ignored by constitutional theorists, but it is critical to sustaining it. Traditions give the people a sense of agency and ownership over their foundational charter of governance. Related justifications for traditionalism include its capacity to foster democratic self-governance and its cultivation of a healthy populism in Americans’ regard for their Constitution.

This chapter introduces the idea of tradition and considers its worth outside the law. Head-on studies of tradition, whether in the law or otherwise, are not common. The chapter argues that there are three principal attractions of tradition: (1) as what is tried and true, and therefore reliable; (2) as what is constitutive of our identity; and (3) as what reflects the excellence of our practices over long stretches of time. The remainder of the chapter introduces the plan of the book.

This chapter addresses the issue of traditionalism’s politics. It also more broadly considers the question of the politics of constitutional theories. It argues that the strict separation of politics from law that theories such as originalism purported to make are not sustainable. And, in its final parts, the epilogue suggests that what is really needed is a return to an older metaphysics of the classical legal tradition. Traditionalism can be a bridge to that older metaphysics.

This chapter considers the relationship between tradition and change. Tradition and change are often thought to be antagonists, and there certainly is a tension between them. Nevertheless, both changes from within a tradition (endogenous change) and changes from outside it (exogenous change) depend upon adaptation in the tradition or selection of a new tradition in order to be effective. This chapter selects a few legal examples to illustrate these mechanics. As to exogenous change in particular, it chooses the issue of discrimination on the basis of race and the Supreme Court’s decision in Brown v. Board of Education, which is sometimes taken to be the paradigmatic challenge to tradition in constitutional law. It then explains the relationship between reason and tradition.

This chapter distinguishes and explores two historical justifications for the separation of church and state in America. The first separation is a specifically Christian piece of political theology, in large part for the benefit of a Christian civil society. The second separation is a specifically secular position for the benefit of a liberal society that wishes to divest from and repudiate Christianity. This chapter then describes the allure of equality and nondiscrimination as church-state ideals, their ascendancy in late twentieth-century constitutional law, and the sense in which they are believed to have supplanted the first version of separation. This chapter argues that neither equality nor nondiscrimination delivers a valueless perspective on the social and political worth of Christianity. The second separation holds that Christianity is an irrelevant, or even an obnoxious and illegitimate, influence in the making of laws or the structuring of the cultural and political realms. In a society in which Christianity has had such overwhelming predominance, insisting on equality is tantamount to squelching it and is nothing less than an expression of the second separation.