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Abstract: Prof. Girgis’s Dunwody Lecture argues that today’s originalists face a choice between two irreconcilable goals—constraining judges’ moral or policy-making discretion and adhering to the Constitution’s original meaning. In the academy, they’ve generally opted to sacrifice judicial constraint for the sake of fidelity to original law. But the Supreme Court’s originalists are far less comfortable with that move. Where the Constitution’s original meaning is underdetermined, or seems to invite discretionary judgment calls, they’ve looked for other, non-originalist tools to tie their hands. According to Girgis, that explains why the Court is increasingly using “tradition,” rather than normative balancing tests, to define the scope of constitutional rights.
But can “tradition” actually constrain judges? Or is it just an invitation for the judge to project her own values onto the past? In this brief Essay, I suggest that traditionalism isn’t necessarily interest-balancing in historical garb. It’s possible, in my view, for a judge to determine whether a modern law fits within an inherited legal tradition without falling back onto her own views about what the tradition should permit as a policy matter. In other words, tying the scope of constitutional rights to tradition doesn’t necessarily vest the judge with moral discretion. Equally, however, reasoning coherently from tradition requires the ability to intuit and articulate what’s essential to a tradition, and what’s not. It demands an exercise of aesthetic judgment. And the capacity to form such judgments may have been lost to our legal culture.
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