Contra Koppelman: What Mere Natural Law was About – Hadley Arkes

Posted by JLPP on Feb 10, 2025 in Per Curiam

Contra Koppelman: What Mere Natural Law was About

Hadley Arkes

Andrew Koppelman and I have just missed connecting at different meetings over the last several months; I know he was eager to give me his reactions to Mere Natural Law, and now, I’m pleased enough to see, he has had his chance to unloose them.  I appreciate, as ever, his willingness to engage an argument, and I feel especially complimented here by his willingness to draw passages from other books of mine, from years past.  But I’m afraid that while he takes fragments of arguments here and there, he gives us, one might say, some notes without the music.   What he does not convey is the perspective or argument that draws the pieces together.  And in this case he does not really convey to the reader the central argument that marks the distinct character of this new book he was reviewing, making the case anew for Natural Law.

The telling mark comes when he notes that Mere Natural Law carries an allusion to C.S. Lewis’s Mere Christianity.  He took Lewis’s central concern to “explain and defend the belief that has been common to nearly all Christians at all times,” . . . “that there is one God and that Jesus Christ is His only Son.”  And “Arkes” he says, “aims to do the same for natural law.”  But there he takes a turn quite radically off the mark.  The aim of this book, as he surely knows, is to draw on another part of Lewis’s teaching:  that arguments over right and wrong draw on the common sense understandings that can be found even in the arguments among children. And as Lewis pointed out, those arguments make no sense unless it is assumed on all sides that there are standards of judgment at hand, to judge the difference between the arguments that are plausible or implausible, true or false.  Aquinas said that the divine law we know through revelation, but the natural law we know through that reasoning that is accessible distinctly to human beings; we might say the reasoning that is “natural” to human beings.  And so in the arguments on abortion, as Koppelman surely knows, the Catholic Church has never appealed to “faith” or belief.  It has appealed rather to the evidence of embryology, woven with the principled reasoning of the natural law.  And the upshot is to show that there is no ground on which to rule out that nascent life in the womb as a human being that would not rule out many people walking about, well outside the womb.

What was distinct to Mere Natural Law is that I was following James Wilson, one of the premier minds among the American Founders as he drew, pervasively, in his writings and opinions, on Thomas Reid, the great Scot philosopher of “common sense”:  The natural law would find its ground in those precepts of common sense that the ordinary man would not only know as true, but have to take for granted in getting on with the business of life.  It was the thing he had to know before he could start trafficking in “theories.”  And so, before the ordinary man would banter with David Hume about the meaning of “causation,” he knew his own active powers to cause his own acts to happen.  From that perspective, the first principle of moral and legal judgment is emphatically not the one that Koppelman imputes to me as my “foundational claim”: “the good should be promoted and the bad discouraged, forbidden, and at times punished.”  That is a version of Aquinas’s first principle of moral judgment, but the problem is that that maxim would hold as well for the Mafia.  Members of a criminal band know clearly the “goods” they share and the punishment that is due to those who break with the band and seek “witness protection.”

James Wilson found the first principle of moral and legal judgment where Thomas Reid and Kant found it, in that line, as Reid had it: “[T]o call a person to account, to approve, or disapprove of his conduct, who had no power to do good or ill, is absurd.  No axiom of Euclid appears more evident than this.”  If the average man were told that Jones, accused of a serious crime, was undergoing surgery at the time the crime was committed, he would wonder why Jones was being prosecuted. That anchoring “axiom,” as Reid and Wilson had it, could be grasped at once as something true of necessity, and every functional person would readily grasp it.  That simple axiom threads through our law in many radiations, not only in the “insanity defense” but also, as I try to argue, in explaining the wrong of racial discrimination.

James Wilson’s recognition—echoed by John Marshall and Alexander Hamilton—was that everything we reliably know must find its anchor in axioms or necessary truths of this kind.  As Hamilton put it in the Federalist #31, “in disquisitions of every kind there are certain primary truths or first principles  upon which all subsequent reasonings must depend.  These contain an internal evidence, which antecedent to all reflection or combination, command the assent of the mind.”   They are to be grasped per se nota as so evidently true in themselves, just as one grasps that anchoring axiom in the “laws of reason”:   that two contradictory propositions cannot both be true. Anyone denying it would find himself falling into self-contradiction and gibberish.

But then here was the further claim of Wilson’s that has not been widely appreciated:  It was not a mere “theory” that two contradictory propositions both cannot be true. No more was it a mere theory that people “may not be held blameworthy or responsible for acts they were powerless to affect.”  Wilson’s claim was nothing less than this:  that any system of jurisprudence must find its ground in these anchoring truths that we can reliably know, because they are true of necessity.  They are the principles of reason that mark the natural law, the law that underlies our positive law.  And any scheme of natural law built on these grounds then cannot be, as Andrew Koppelman labels it, a mere “theory” of the natural law.  It would be the real thing.

To get clear on this point is to take the first step in dissolving Professor Koppelman’s concerns for what Aquinas calls the “determinatio” of the positive law.   We see the signs posting speed limits of 65 mph or 35 mph.  But before we had those provisions of the positive law, as Kant would tell us, there is an underlying natural law that would tell us why we would be justified in having any law in the first place—a law, that is, to restrain the freedom of people to put innocent life at hazard by driving at reckless speeds.  As ever, as Aquinas realized, there is the need to translate the underlying natural law into terms that apply that law in a practical way to the circumstances and terrain before us:  65 mph, perhaps on the open highway, 35 mph on the winding country road.  But of course there may be other judgments on the speed that happens to be right for any road, and they may all be compatible with the natural law.  In the same way, there may be different constitutional orders that may be compatible with the natural law.   And the task as ever is to distinguish between what is arguable and what is truly essential.    We may still need all of our wit and imagination as we ponder the question of whether Jones was really so infirm after surgery, or so under hypnosis, that he could not have committed that crime.  The possibilities here are maddeningly variable.  But the one thing in this mix that will never be contingent or variable is the principle itself.  If Jones was really “incapable of affecting the act, committing the crime,” he is undeniably innocent and there are no circumstances under which that principle would fail to be true.

I did not take Mere Natural Law as the occasion for offering a thick book of commentaries, listing what I found persuasive or less than persuasive in other accounts of the natural law.  I took it as the occasion to offer this crisper account of a natural law grounded in the laws or axioms of reason, the laws accessible to only one kind of creature. I was not offering a “theory” about the different ways in which people may or may not find themselves “flourishing” as they sought to live upright lives.  I was offering an account of what may be distinctly good and commendable—and quite constitutive of a common good—in a jurisprudence based on moral truths that would hold enduringly for anyone who lived under them.  In his encyclical “On the Nature of Human Liberty” (1888) Leo XIII argued that animals could not plausibly be the bearers of “property rights,” for animals were incapable of imparting a moral purpose to inanimate matter. Rights of property, and other rights, flowed only to creatures of reason, those creatures who alone by nature had the capacity to engage in reasoning over the things that were right or wrong, just or unjust. It should not come as a surprise then to Professor Koppelman that James Wilson—and others of us—should hold an understanding of natural law that is built distinctively upon those anchoring axioms of reason.

Professor Koppelman wants to tag as my main, grievous fault, that I did not deal with what he takes as some of the strongest arguments against my positions. I spent most of Mere Natural Law dealing with arguments made by justices in the Supreme Court, including arguments made by friends such as Justices Scalia and Alito. I was also making arguments that put me at odds with other writers, arguing for an Originalism serenely detached from the moral ground of the natural law as James Wilson, John Marshall and Alexander Hamilton understood it. I will leave it to readers to judge whether I had spent enough time dealing with arguments at odds with my own. But on the other side I would register my own protest that Professor Koppelman has never dealt adequately, say, with the arguments that Robert George, John Finnis, Gerard Bradley and I have made on abortion.  On that I will have more to say in a moment.  But even now in the case at hand:  has he really given, in his review, a clear account of my own central argument in Mere Natural Law, or anything close to the summary I’ve offered in these pages?

As I’ve said, he had many of the notes, but the music was missing. He cited fragments of what I was saying, but offered only truncated accounts of the argument I was making.    And so he says, curtly, that in my view “Minimum wage laws are invalid because they ’seriously abridge personal freedom.’” But any law works by restricting freedom.  It would take a more strenuous argument to show why a law is invalid by showing why it cannot be justified.  That fuller account is what he leaves out in the case of the laws of minimum wages and others. He obviously has in mind my defense of Justice Sutherland striking down the law on minimum wages for women in Adkins v. Children’s Hospital (1923). Sutherland had been a leader in the cause of votes for women, and he did not hold back in supporting laws protective of women.  What Sutherland sought to show in this was that these policies of minimum wages or price controls were simply wrong in principle, that they would be wrong even if it were claimed on occasion that they “worked.”  For these laws were grounded of theories of “determinism”:  e.g., that if a man fell into a class called “employer,” we knew what he was capable of paying any employee, regardless of whether the employer headed a large corporation or a small family business.  Or, that if we knew someone was a woman, we knew the level of income she needed to preserve her morality.  And somehow the drafters of the law knew that a woman who worked as a beginner in a laundry could preserve her morality with an income far more modest than a woman who worked in a large department store.

It surely cannot offer an account of my understanding to say, as Koppelman does, that I hold that a “legislature has no power to prohibit discrimination on the basis of sexual orientation.”  No one doubts the power of a legislature to pass a positive law of that kind.  The question is whether a law of that kind is coherent and means what it says.  In all strictness, “sexual orientation” could encompass bestiality, or the passion for sex with animals.  These laws just do not say precisely where they find the wrong they would forbid.    If the drafters sought to become more precise—if they tried to explain where it was plausible  or indefensible to draw adverse inferences about people based of their styles of sexuality—the scheme becomes far more problematic, with conversations people would rather not have.

But finally on the matter of abortion.  Koppleman takes it as a striking fault that, in my arguments on abortion, I’ve not dealt with the kinds of argument offered by Lynne Rudder Baker:  that a human being has the standing of a person, and the protection of the law, only when it has “the capacity for a first-person perspective – to become, in Aristotle’s terms, a rational animal”:

In the early stages of pregnancy, the person does not yet exist.  “It makes no sense to suppose that a nonexisting person has a right to be brought into existence.  Baker observes that her view is consistent with that of Aquinas, who thought that the fetus was not a human individual until it possessed a rational soul, a point that he placed about twelve weeks into gestation.

But surely Koppelman must know that there is nothing the least novel in this argument– or nothing that was not countered by the arguments put forth, say, by Robert George in his Embryo:  A Defense of Human Life (2011) or my own First Things (1986).   There was Alan Gewirth’s curious claim that a fetus could not be a “purposive agent” if it did not have a “physically separate existence” (which of course it has had from its very first moments).[1] But even closer, this is a replay of Bruce Ackerman’s argument that a fetus cannot be a person within the protection of the law because it cannot be “a citizen of a liberal state.” And to be a citizen “it must be able to play a part in the dialogic and behavioral transactions that constitute a liberal polity.”[2]  It is one thing to note the capacity for moral reasoning that distinguishes human beings; and yet it is quite another to say that the right of any person to live must depend on his “articulateness.”  But all of this has been encompassed now by Justice Alito in the Dobbs case.  He noted there the contention of some writers that the fetus should not be entitled to legal protection until it has attributes such as “sentience, self-awareness, the ability to reason, or some combination thereof.”  But with that reasoning, as he said, “it would be an open question whether even born individuals, including young children or those afflicted with certain developmental or medical conditions, merit protection as ‘persons.’”

The fallacies here are old; they do not become more venerable as they are repeated anew.  It takes a heavy dose of theory to talk us out of James Wilson’s understanding that our natural rights begin as soon as we begin to be, which is why, as he said, the common law casts its protection “when the infant is first able to stir in the womb.”  It was once unthinkable to say that a woman becomes unfree when she is restrained from destroying this innocent life she is bearing.  And yet, as I recall, Professor Koppelman was once willing to argue that it would be nothing less than a violation of the 13^th Amendment, that a woman would be consigned to servitude, if she were barred from destroying that small life in the womb.  I hope that he has long put that argument aside, but if not, there is another old argument that has not departed the scene and may need to be countered yet again.

There are many more arguments that Andrew Koppelman, in his wide interest, cast up, more than I can possibly deal with here.  But in his large nature, he is always open to getting together for that fuller conversation, and so I’ll look forward to that lunch in Chicago or Washington.

[1] See Alan Gewirth, Reason and Morality 142-43, 159-60 (1978).

[2] Bruce A. Ackerman, Social Justice and the Liberal State 127 (1980).

Critiquing Hadley Arkes’s not-so-mere Natural Law Theory – Andrew Koppelman

Posted by JLPP on Feb 3, 2025 in Per Curiam

Critiquing Hadley Arkes’s not-so-mere Natural Law Theory

Andrew Koppelman*

Law can’t be separated from morality, because law is a kind of human conduct.  So is compliance with the law.  Morality constrains all of human conduct.  So the idea of natural law, a set of moral constraints binding on any possible legal system, has perennial appeal.

Hadley Arkes is a leading contemporary proponent of a revived natural law.  His prominence is deserved.  His work is smart and learned and entertaining.  He writes with admirable moral passion.  He is urgently concerned that persons be treated with dignity and respect, passionate about protecting the weak and vulnerable, especially children, with an especial scorn for racism.  But he is unpersuasive with respect to some of the most important legal issues he takes up:  the scope of the modern administrative state, antidiscrimination law, and abortion.  He often ignores counterarguments.  More than that, he neglects important aspects of the natural law tradition.

His most recent book is Mere Natural Law.  The title echoes, and the book models itself upon, C.S. Lewis’s Mere Christianity.  Lewis aimed to “explain and defend the belief that has been common to nearly all Christians at all times,” centrally “that there is one God and that Jesus Christ is His only Son.”[1] Arkes aims to do the same for natural law.

Arkes’s understanding of natural law is however idiosyncratic.  This separates his project from that of Lewis, who consciously sought to avoid saying anything at all about matters on which Christians were divided: besides having doubts about his own competence to adjudicate theological disputes, Lewis wisely thought that “the discussion of these disputed points has no tendency at all to bring an outsider into the Christian fold.”[2]  Arkes however reasons his way to libertarian, minimal-state conclusions that not all natural lawyers share.  As Lewis feared, this makes natural law appear less attractive than it is, by tying it to inessential, disputed points.

Arkes’s foundational claim is that “the good should be promoted and the bad discouraged, forbidden, and at times punished.”[3]  Every claim of liberty should be evaluated in light of “whether our freedom was being directed to ends that were good or bad, rightful or wrongful.”[4]  Freedom “may be plausibly restricted at many points for good reasons,” and the question of whether rights are thereby infringed “will always hinge then on whether those reasons for restricting freedom are justified or unjustified.”[5]  Judicial review of any statute, he says in an earlier work, “must encompass the question of whether the restrictions or the penalties imposed by the legislation can be substantively justified.”[6]  The question of justification must be addressed by standards not to be found in the Constitution’s text, by “appealing to those standards of moral judgment that could not be summarized, or set forth with any adequacy, in a Constitution.”[7]

Thus there is a strict limit on the legitimate scope of the law.  Some matters, such as how to fund education and for whom, are appropriate judgments for “politicians who have a closer connection to the conditions and sentiments of their own community,”[8] but the judiciary can still appropriately limit legislative power by “the narrow task of drawing out the logical implications that follow from the very idea of law.”[9]  That idea holds that “we are justified in legislating only when the law is governed by an understanding of right and wrong that can tenably claim to be valid, in principle, for everyone.”  Propositions could not legitimately underlie law “if their truths varied with alterations in local culture or with the vagaries of what majorities, in one place or another, are pleased to regard as right and wrong.”[10]  If this understanding were applied, “one result would be far fewer laws on the books than we have today.”[11]

Arkes thus calls into question many restrictions on liberty that are familiar parts of the modern administrative state.  For example, it is not legitimate for the state to require employers to provide benefits to their employees, such as health insurance: “if a service is mandated by the federal government, the federal government should be required to fund that service, not transfer a public service to private persons to bear at private expense.”[12] Arkes admires Franklin Roosevelt’s nemesis, Justice George Sutherland.[13] He rejects the New Deal Court’s deference to economic regulations, because “the regulation of business touches liberties that many people regard as fundamental.”[14]  Minimum wage laws are invalid because they “seriously abridge personal freedom.”[15]

Natural law does not necessarily entail these conclusions.  What is constant among natural law theorists – the real core of mere natural law – is the idea that human nature is constant across cultures, that this nature is teleological and implies certain human purposes that are worthy of pursuit, and that the function of law is to coordinate human activity in order to realize those purposes and forbid actions that thwart them.  Aquinas described law as “an ordination of reason for the common good promulgated by the one who is in charge of the community.”[16]  It has a purpose and should be judged in light of that purpose.

Aquinas inherited from Aristotle the idea that human beings should aim at that which perfects their nature.  Aristotle wrote, “Anyone who intends to investigate the best constitution in the proper way must first determine which life is most choiceworthy, since if this remains unclear, what the best constitution is must also remain unclear.”[17]  In Aristotle, this perfection consisted in “activity and actions of the soul that involve reason”[18] (or, perhaps, philosophical contemplation).[19]  The purpose of a polity is “to make the citizens good and just.”[20]

The realization of this purpose may empower a state to forbid conduct that is not in itself wrongful.  Arkes does not appear to leave room for what Aquinas called determinatio, or what lawyers call malum prohibitum.[21]  Aquinas thought that “there are two ways in which something is derived from natural law – first, as a conclusion from its principles, and second, as a specific application of what is expressed in general terms.”[22]  The latter necessarily is somewhat arbitrary.  We all need to drive our cars on the same side of the street, but one can’t deductively establish which side that should be.  It is not inherently wrongful to park in the business district between 2 and 6 a.m., but a statute prohibiting that conduct is nonetheless legitimate.  The need for coordination entails that there must be lawmaking authority.  “Though the lawmakers’ determinatio is in a sense free,” John Finnis explains, “it must also be made with due consideration for the circumstances which bear on the appropriateness of alternative laws.”[23]

The decline of natural law reasoning in court is in large part the consequence of the increasing detail of determinatio.  The proliferation of written constitutions and statutes, and the publication of most judicial decisions, meant that judges could rely on positive law, and did not need to reason from first principles.  This obviously also made the law more predictable, which is one of the principal benefits of determinatio.  The concern about predictability became more salient as it became clear, in the nineteenth century, that natural law could be invoked on both sides of many of the most salient controversies.[24]  Some modern Thomists think that existing positive law is legitimately promulgated, is therefore worthy of obedience, and suffices to answer most legal questions.[25]

In a complex modern economy, the promotion of human flourishing can entail an immense regulatory apparatus.  The evils to be avoided may require considerable expertise even to detect and diagnose: pollution, financial market fraud, dangerous or ineffective pharmaceuticals, hazardous consumer products, workplace hazards.  In a minimal state, people would be vulnerable to all these harms.[26]  Thus one of the most prominent contemporary neoThomists, Adrian Vermeule, argues that the modern regulatory state promotes the common good.[27]

Arkes thinks that government wrongs an individual if it uses its regulatory powers to commandeer his property for public purposes, as it does for example with the minimum wage, or the Affordable Care Act’s mandate that large employers provide health insurance to their workers.  But he doesn’t seem to notice that property rights are subject to many different legal specifications, and that those specifications are a species of determinatio.

In our system of property rights, some subset of the social output is allocated for collective rather than individual determination of the use to which it will be put.  There is no uniquely justified specification of that subset’s size or use.  Private property has no meaning outside that total system.  Political life did not begin after I was already sitting in the state of nature with my brokerage account.  The actual structure of property rights comes with a proviso that resembles the “rake” in a casino poker game: players know when they start the game that the house will take a percentage of each pot.  Whether health care is to be directly funded by government, or by employer mandates, or (as is the case in the United States) some combination of the two, is a prudential judgment appropriately guided by the moral imperative to minimize morbidity and mortality.

Arkes ranges over a broad range of other specific applications, more than I can take up here.  I’ll focus on gay rights and abortion.

Arkes writes that the Supreme Court should have rejected same-sex marriage by offering “a substantive defense of marriage” as “the union of one man and one woman.”[28]  The state can prohibit discrimination on the basis of race, but not sexual orientation, because the former is wrong and the latter is not.  He discusses a Supreme Court case, Masterpiece Cakeshop v. Colorado,[29] in which a baker asked for exemption from an antidiscrimination statute that required him to bake a case for a same-sex wedding.[30]  He is unpersuaded that either religion or free speech can be a basis for such an exemption.  There is no legally salient difference between the baker and any other defendant.  Yet he thinks that the baker should prevail.  The implication appears to be, not exemption, but that the statute is constitutionally invalid in all its applications, and that legislature has no power to prohibit discrimination on the basis of sexual orientation.  On the contrary, with the Supreme Court’s interpretation of the Civil Rights Act to protect transgender people from discrimination, “the trend of nihilism may have reached its terminus.”[31]  He thinks that, in that case, the Court should have looked “beyond the text of the statute” to “the differences that must ever separate males from females.”[32]

The substantive defense of opposite-sex marriage, and exclusion of same-sex marriage, that Arkes endorses is that elaborated by Girgis, Anderson, and George.  Arkes complains that proponents of same-sex marriage have not offered reasoned responses to those arguments,[33] but I have done so in some detail (as it happens, with the generous help and advice of Prof. George).  My counterarguments are not nihilistic.  They are just counterarguments, which claim that the conclusions about same-sex marriage do not follow from the natural law premises.[34]  Nor is it explained why “the differences that must ever separate males from females” imply that the state cannot prohibit discrimination against those who construe those differences in ways with which Arkes disagrees.  Racial discrimination, he writes, is wrong because “it denies to black people their very standing as moral agents to bear responsibility for their own acts and receive the praise or blame that is theirs alone.”[35]  This is a wrong “even when it is not clear that the victims have suffered any material injuries.”[36] But of course discrimination against gay and transgender people also has historically involved devaluation of their personhood, treating them as irredeemably defective beings.  Why isn’t a legislature authorized to respond to that?[37]

In a long discussion of abortion, Arkes nowhere acknowledges that there is a serious philosophical debate about whether a fetus is a person, an entity with rights.  He merely speculates that defenders of abortion rights “are incapable of simply reading what the textbooks on embryology or obstetric gynecology have to say.”[38]  He assumes that the physical human organism is identical with the person, so that “from the blastocyst stage the fetus qualifies for respect.”[39]  The most sophisticated defenses of abortion challenge that assumption, and they do so by engaging in detail with embryology.  Scholars who agree with Arkes respond to that literature.[40]  He ignores it.

The claim that abortion is morally permissible need not deny that a fetus is an organism or that is a member of the human species. Lynne Rudder Baker, for example, offers a pro-choice argument that is entirely consistent with natural law premises.[41]  She proposes that personhood is an essence that emerges at a certain point in fetal development.  Her view is essentialist and teleological.  The human-making property of an entity, she argues, is the capacity to have a first-person perspective.  Persons are necessarily embodied, but it is possible to have a body without being a person: corpses are not persons.  “The relation between you and your body – constitution – is the same relation as the relation between Michelangelo’s David and the piece of marble that constitutes it.”[42]  The David and the piece of marble are spatially coincident, but they are not identical.  The piece was marble before and after Michelangelo got his hands on it, but it was not then, and is now, the David.  I was once a fetus, but that does not necessarily mean that the fetus was me.

A fetus has the capacity to develop the capacity for a first-person perspective – to become, in Aristotle’s terms, a rational animal.  But such a remote capacity, Baker argues, cannot make anything the kind of entity that it is.[43]  In the early stages of pregnancy, the person does not yet exist.  “It makes no sense to suppose that a nonexisting person has a right to be brought into existence.”[44]  Baker observes that her view is consistent with that of Aquinas, who thought that the fetus was not a human individual until it possessed a rational soul, a point that he placed about twelve weeks into gestation.[45]

David Boonin similarly argues that, at the early stage of development, there is no consciousness and so no person.  A rational soul must be at least sometimes conscious.  If it is never conscious, then one may wonder in what sense it can be deemed rational.  No consciousness is possible until neural connections begin to form in the fetus’s brain, which happens at about 25 weeks.  Roughly 99% of abortions take place before this point.[46]  Until that stage, fetuses have not even begun to be (to use Arkes’s words) “beings who can give and understand reasons.”[47]

Arkes proposes that the principles of natural law are “readily – and instantly – understood,” “accessible to all functional persons,” “understood by virtually everyone.”[48]  If there is any need to articulate them, this is because they “involve those matters so foundational that we absorb them often without the least awareness that we know them.”[49]  He accurately observes that disagreement with these principles does not prove that they do not exist: with respect to some matters, it is often the case that one side is simply wrong.

On the other hand, the truths that anchor Arkes’s arguments are not ones that “cannot be denied without falling into contradiction.”[50]  Writers who share his premises reject his conclusions.  He is certainly right that the exercise of political power must be justified, but his arguments depend on too cursory an inventory of possible justifications. This leads him to zoom quickly past considerations that he should address and answer.  He heaps scorn on stupid counterarguments as though they were the only ones he needs to address.  One sometimes suspects that he perceives only two alternatives: the nihilist view that morality and law are merely matters of personal preference or agreeing with him about everything.

Law necessarily has a moral foundation.  Exploring that foundation can help us understand what law can and should be.  The project of finding anchoring truths is well worth undertaking, and the natural law tradition has something to contribute to that.[51]  That is why Arkes’s work is important.  But the increasing importance of determinatio explains why natural law is not much relied upon today.  Another is that virtue takes more forms than the natural law tradition recognized: Robert George acknowledges its “fail[ure] to understand the diversity of basic forms of good and the range of valid pluralism.”[52]  The basic commitment to the accountability of political power is important, and Arkes has performed a service by emphasizing it.  But his arguments would be stronger if he engaged in detail with the strongest objections to his position.

* John Paul Stevens Professor of Law and Professor (by courtesy) of Political Science, Department of Philosophy Affiliated Faculty, Northwestern University.

[1] C.S. Lewis, Mere Christianity 6 (1952).

[2] Id. at 6.

[3] Hadley Arkes, Mere Natural Law: Originalism and the Anchoring Truths of the Constitution 63 (2023) [hereinafter Mere Natural Law].

[4] Id. at 9.

[5] Id. at 91.

[6] Hadley Arkes, Beyond the Constitution 97 (1990).

[7] Id. at 56.

[8] Mere Natural Law, at 59.

[9] Id. at 58–59.

[10] Hadley Arkes, First Things: An Inquiry into the First Principles of Morals and Justice 27 (1986). See also Mere Natural Law at 228.

[11] First Things, supra note 10, at 28.

[12] Mere Natural Law, at 195.

[13] See generally Hadley Arkes, The Return of George Sutherland: Restoring a Jurisprudence of Natural Rights (1997).

[14] Id. at 88.

[15] Mere Natural Law, at 52–53.

[16] Thomas Aquinas, Summa Theologiae, I II, q. 90, art. 3, in St. Thomas Aquinas on Ethics and Politics 46 (Paul E. Sigmund ed. & tr. 1988).

[17] Aristotle, Politics, 1323a, at 191 (C.D.C. Reeve tr. 1998).

[18] Aristotle, Nicomachean Ethics 1098a, at 10 (Terence Irwin tr., 3d ed. 2019).

[19] Aristotle is inconsistent on this point.  See Martha C. Nussbaum, The Fragility of Goodness: Luck and Ethics in Greek Tragedy and Philosophy 373–77 (1986).

[20] Politics, 1280b, supra note 17, at, 80.

[21] Gerard Bradley offers a similar criticism, without specifically invoking determinatio, in Constitutional Theory beyond Left and Right (review of Beyond the Constitution, supra note 6),  54 Rev. f Pol., Vol. 54, No. 1 (Winter, 1992), pp. 144-150.

[22] Summa Theologiae, I II, q. 95, art. 2, supra note 16, at 53.

[23] John Finnis, Aquinas: Moral, Political, and Legal Theory 268 (1998).

[24] See generally Stuart Banner, The Decline of Natural Law: How American Lawyers Once Used Natural Law and Why They Stopped (2021).

[25] See generally, e.g., Jeffrey A. Pojanowski & Kevin C. Walsh, Recovering Classical Legal Constitutionalism: A Critique of Professor Vermeule’s New Theory, 98 Notre Dame L. Rev. 403 (2022).  A.P. D’Entreves distinguishes “technological” understandings of natural law, as solutions to perennial problems of governance and adjudication, from “ontological” understandings, which rest on an account of humanity’s nature and purpose.  See A.P. D’Entreyes, Natural Law: An Introduction to Legal Philosophy 145–158 (2d ed. 1970).  When early courts cited natural law, they were usually invoking the former, and some accounts of natural law simply build on those perennial governance problems.  See, e.g., H.L.A. Hart, The Concept of Law 86–89 (2d ed. 1994).  The distinction helps explain why “neither Continental nor English lawyers made much use of” Aquinas, whose view of the human telos was pervasively religious.  R.H. Helmholz, Natural Law in Court: A History of Legal Theory in Practice 5 (2015).

[26] See generally Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (2022).  On the importance of determinatio in justifying the modern administrative state, see Adrian Vermeule, Common Good Constitutionalism 46, 136, 152-53 (2022).

[27] See generally Vermeule, supra note 26; Cass R. Sunstein & Adrian Vermeule, Law & Leviathan: Redeeming the Administrative State (2020).  Arkes praises Vermeule but does not appear to notice this enormous difference in their views.  Hadley Arkes, Vermeule, his Critics, and the Crisis of Originalism, The American Mind (May 6, 2020), https://americanmind.org/features/waiting-for-charlemagne/vermeule-his-critics-and-the-crisis-of-originalism/.

[28] Mere Natural Law, at 11.

[29] 584 U.S. 617 (2018).

[30] Mere Natural Law, at 76.

[31] Id. at 9.

[32] Id. at 15.

[33] See generally Hadley Arkes, When a Man Loves A Woman, Claremont Rev. of Books, Winter 2015/2016.  He also worries that if same-sex marriage is not resisted in principle, “marriage would lose its integrity as a concept and its durability then as an institution.”  Hadley Arkes, The Family and the Laws, in The Meaning of Marriage: Family, State, Market, and Morals 116, 127 (Robert P. George and Jean Bethke Elshtain eds. 2006).  But this prediction is parasitic on his view about what marriage essentially is.

[34] See generally Andrew Koppelman, The Decline and Fall of the Case Against Same-Sex Marriage, 2 U. St. Thomas L. J. 5 (2005); Andrew Koppelman, Is Marriage Inherently Heterosexual?, 42 Am. J.  Juris. 51 (1997); Andrew Koppelman, More Intuition than Argument, 140 Commonweal 23 (Mar. 25, 2013) (review of Sherif Girgis, Ryan T. Anderson, & Robert P. George, What is Marriage? Man and Woman: A Defense (2012)), .  Our disagreement turns on whether the legal institution of marriage must correspond to a good with essential properties.  See Sherif Girgis, Ryan T. Anderson and Robert P. George, Does Marriage, or Anything, Have Essential Properties?, Public Discourse (Jan. 12, 2011) https://www.thepublicdiscourse.com/2011/01/2350/ (engaging, and linking to, my arguments on this issue).  Arkes is distinctive from them to the extent that, because he has so little room for determinatio, he wants legal categories to correspond to essences more than they do.

[35] Mere Natural Law, at 102.

[36] Id. at 102.

[37] There are also other purposes of antidiscrimination law, which Arkes does not pause to consider.  See Andrew Koppelman, Gay Rights vs. Religious Liberty? The Unnecessary Conflict 43–65 (2020).

[38] Mere Natural Law, at 138.

[39]Id. at 219.

[40] See generally, e.g., Francis J. Beckwith, Defending Life: A Moral and Legal Case Against Abortion Choice (2007).

[41] See generally Lynne Rudder Baker, Persons and Bodies: A Constitution View (2000).

[42] Id. at 9. I became aware of Baker’s argument when I encountered the attempted refutation in Robert P. George and Christopher Tollefson, Embryo: A Defense of Human Life (2d ed. 2011).  In my judgment, their attack on mind-body dualism is effective against Descartes but is not responsive to Baker.

[43] Lynne Rudder Baker, When Does a Person Begin?, 22 Soc. Phil. Pol’y 25, 35 (2005).

[44] Id. at 45.

[45] Id. at 41 n.50.  Aristotle’s views, on the other hand, are so distant from ours that no reliable conclusions can be drawn regarding his views on abortion in light of modern knowledge.  See generally Mathew Lu, Aristotle on Abortion and Infanticide, 53 Int’l Phil. Q. 47 (2013).

[46] See David Boonin, A Defense of Abortion 115–29 (2003).

[47] Mere Natural Law, at 27.

[48] Id. at 19.

[49] Id. at 19.

[50] Id. at 23.

[51] Its relation to liberalism is complicated.  The most careful assessment I know, from within the natural law tradition, is Robert P. George, Making Men Moral: Civil Liberties and Public Morality 189–229 (1993).  On the other hand, Patrick Deneen and Adrian Vermeule, whose work has become quite prominent, radically misunderstand the liberalism they criticize.  See Andrew Koppelman, “It is Tash Whom He Serves”: Deneen and Vermeule on Liberalism, 98 Notre Dame L. Rev. 1525 (2023).

[52] George, supra note 51, at 38.

The Third Rails of Second Amendment Jurisprudence: Guidance on Deriving Historical Principles Post-Bruen – Mark W. Smith

Posted by JLPP on Jan 30, 2025 in Per Curiam

The Third Rails of Second Amendment Jurisprudence:
Guidance on Deriving Historical Principles Post-Bruen

Mark W. Smith*

This article proposes a method by which courts and litigants can resolve recurring questions presented in litigation over the right to keep and bear arms.

Three Supreme Court cases, District of Columbia v. Heller (2008),[2] New York State Rifle & Pistol Association v. Bruen (2022),[3] and United States v. Rahimi (2024)[4] established a text-first, history-second methodology for deciding whether a present-day law affecting the right to keep and bear arms passes muster under the Second Amendment.

If the conduct prohibited by such a law is covered by the plain text of the Second Amendment, a court must then determine whether the law is “consistent with this Nation’s historical tradition of firearm regulation,” by examining relevant historical analogue laws at or near the time of the Founding. By examining whether modern and historical regulations “impose a comparable burden on the right of armed self-defense” (the “how”), and whether “that burden is comparably justified” (the “why”), a “principle” may be distilled from the analogues to define the contours of the right. A modern regulation that is consistent with a principle thus derived is consistent with the Second Amendment. A modern regulation that is inconsistent with such a principle is unconstitutional.

A key issue, flagged by Justice Barrett in her Rahimi concurrence, is the appropriate level of generality at which to derive a principle from the historical analysis described by Bruen. In Rahimi, the Court criticized the Fifth Circuit for requiring a “historical twin” and searching for a historical “principle” that was too specific. But the Court likewise rejected a principle proffered by the United States—that the government may disarm any citizen who is not “responsible”—as being pitched at too high a level of generality.

Though it instructed courts to find the right level of generality and eschew rules that are either overbroad or too specific, Rahimi did not make explicit how lower courts should know whether the rule they embrace fits into this Goldilocks zone of just right. This article proposes a way to test whether derived principles are appropriate by identifying certain “disqualifiers.”

This article identifies five disqualifiers or “third rails” that indicate when a court’s analysis is wrong. First, the derived historical principle cannot violate precedents or constitutional principles already established by the Supreme Court. Second, a historical principle cannot be justified by reference to the misuse of firearms by criminals as opposed to the lawful use of firearms by the law-abiding. Third, a historical principle must not undermine the purposes of the Second Amendment. Fourth, a historical principle must not restrict or prohibit firearms-related activities that were common at the Founding. Fifth, a historical principle that denies Second Amendment rights to most Americans is invalid.

This is not an exhaustive list—rather, it is an attempt to kick off a conversation. There are surely other relevant disqualifiers not discussed here, but a principle that runs afoul of any of these disqualifiers is incorrect and must be rejected as a basis for assessing the constitutionality of a modern gun law.

I. A Quick Refresher:  Applying the Heller/Bruen Methodology

Before addressing the disqualifiers, it is helpful to review the Bruen methodology.[5] The Supreme Court explains:

As the Supreme Court taught in Bruen and Rahimi, the historical work of understanding the Second Amendment involves examining laws that restricted the right to keep and bear arms historically by asking both “how” and “why” those laws limited the right. Then, as Rahimi makes clear, the question is whether the “principle” to be derived from those historical laws—the synthesis of “how” and “why” they regulated the right while remaining consistent with it—would, today, justify (or not justify) whatever modern firearm law is being challenged as unconstitutional.[7]

The notion of underlying or historical principles is not novel in Second Amendment jurisprudence. In Heller, the Court found two historical principles to be case determinative. The first was the historical tradition at common law of regulating “dangerous and unusual weapons.”[8] The second was that arms “‘in common use’ . . . for lawful purposes” are categorically protected.[9] Because handguns are the “quintessential self-defense” weapons chosen by millions of Americans for that purpose, Washington, D.C.’s handgun ban was unconstitutional.[10]

In Bruen, the Court analyzed the “how” and the “why” of historical analogues to adduce a historical principle by which to assess New York’s “proper cause” requirement for handgun licenses.[11] The historical principle derived from analogues that made it illegal to carry handguns concealed was that legislatures could regulate the mode of carriage, but they could not ban carriage entirely.[12] Applying that historical principle, the New York law was unconstitutional.[13]

In Rahimi, the Court examined two different sets of historical laws: (a) surety laws, that required an individual who was suspected of causing trouble to find sureties before carrying arms in public, and (b) the “going armed” laws, which made it unlawful to go armed in public “to the [t]error of the [p]eople.”[14] Rahimi treated these laws together because they had the same “why”—they were both aimed at preventing future violence with firearms.[15] They also had similar “hows.”[16] To be sure, as Justice Thomas pointed out in his dissent, they were not perfectly aligned on this point,[17] but as the majority emphasized, they frequently targeted the same behavior and were used somewhat interchangeably.[18]

The historical principle Rahimi derived from these laws was that the government could disarm an individual temporarily where he “present[ed] a credible threat to the physical safety of others.”[19] Applying that principle, the Court held that the temporary prohibition by 18 U.S.C 922(g)(8), which prohibits the possession of a firearm by someone subject to a domestic violence restraining order, who had been found to pose a physical danger to another, was constitutional.[20]

Rahimi did not provide lower courts with a formula to test if a derived principle passes muster under the Second Amendment. Here, the key issue is the level of generality of the principle underlying, or derived from, historical analogues. As Justice Barrett recognized in her Rahimi concurrence:

Courts have struggled with this use of history in the wake of Bruen. One difficulty is a level of generality problem: Must the government produce a founding-era relative of the challenged regulation—if not a twin, a cousin? Or do founding-era gun regulations yield concrete principles that mark the borders of the right?[21]

So, what level of generality is the right one to derive these principles? Rahimi itself shows that error lies on either extreme—the Fifth Circuit drew its analogies too narrowly and required a “historical twin,” while the government in Rahimi pushed for a rule that would swallow the Amendment whole in permitting the government to bar firearm possession by anyone it judged to be “[ir]responsible.”[22] It is clear that the Court is looking for a Goldilocks principle: one that does not embrace a  principle that is too extreme, but is instead “just right.” As part of the examination of historical analogues to determine the principles that underlie our national tradition of firearms regulation, it is crucial that the principles be applied at the appropriate level of generality and in the correct manner.

II. Deriving The Historical Legal Principle

Identifying an underlying historical principle serves at least two purposes. First, it brings coherence to a proposed basket of analogues and informs the meaning of those historical laws. Second, and most importantly, it explains how those laws were consistent with the contours of the Second Amendment. The best way to think about how to derive or formulate a historical legal principle is by ensuring that the “why” and the “how” of the suitable historical analogues are encompassed in the proposed historical principle. In essence, all derived historical legal principles can be written in the following manner: The government may regulate conduct within the plain text of the Second Amendment by [insert the how] because history demonstrates that society has well-founded concerns about [insert the why] that have been embodied in historical analogue laws that meet Bruen’s standards.

III. The Second Amendment Disqualifiers Test Whether
A Proffered Principle Derived From History is Correct

In Rahimi, Justice Barrett made two astute observations.  First, “a court must be careful not to read a principle at such a high level of generality that it waters down the right” and, second, “reasonable minds sometimes disagree about how broad or narrow the controlling principle should be.”[23] This is hardly a concern unique to the Second Amendment. The Supreme Court has wrestled with how to instruct lower courts to pitch their analyses at the appropriate level of generality in all manner of constitutional contexts. In the abortion context, for example, the Court criticized its own precedent “appeal[ing] to a broader right to autonomy and to define one’s ‘concept of existence’” as operating at such “a high level of generality” that they could equally well “license fundamental rights to illicit drug use, prostitution, and the like”;[24] in qualified immunity cases, it frequently admonishes lower courts that “clearly established law” must not be defined “at a high level of generality” but rather must be “particularized to the facts of the case”;[25] and in the family law context, Justice Scalia warned that in assessing the historical scope of familial rights, courts should “consult[] the most specific tradition available” given that more “general traditions provide such imprecise guidance [that] they permit judges to dictate rather than discern the society’s views.”[26] These concerns should sound very familiar to students of the Second Amendment.

Perhaps the clearest example of this in the Court’s caselaw can be found in Washington v. Glucksberg, where the Court assessed whether there was a constitutional right to assisted suicide. Glucksberg was essentially Bruen in reverse; because the right to assisted suicide is not found in the Constitution’s text, the plaintiff bore the burden to demonstrate from a historical tradition that the alleged right existed and should be protected. In assessing the claim, the Court wrestled with the appropriate level of generality at which to define the asserted right based on history. The Ninth Circuit below had asked “‘whether there is a liberty interest in determining the time and manner of one’s death,’ or, in other words, ‘[i]s there a right to die?’”[27] Glucksberg had asserted a right “to choose how to die,” to be in “control of one’s final days,” or “the liberty to shape death.”[28] But the Court criticized these questions as too broadly formulated, noting that in the past it had been much more careful in “formulating the interest at stake in substantive-due-process cases,” and rejected the notion that it had previously recognized a “right to die,” and had, instead, found a much more limited right of “competent persons” to “refuse lifesaving hydration and nutrition.”[29] Properly characterized, the question before the Court in Glucksberg was much narrower: whether the “liberty” specially protected by the Due Process Clause includes a right to commit suicide, which itself includes a right to assistance in doing so.[30]

Insisting on a careful description of the right in question is one of the “guideposts for responsible decision making” the Court uses to avoid removing too much from “the area of public debate and legislative action” in substantive due process cases.[31] Similarly, ensuring the proper definition of the limiting principles helps to avoid watering down rights textually protected by the Constitution.

In the Second Amendment context, the underlying principle of regulation, if any, is derived from the synthesis of “how” and “why” historical analogues regulated the Second Amendment right while remaining consistent with the Second Amendment. Whereas the risk in Glucksberg was acknowledging an overbroad right. Given that the Bruen analysis uses history to find limitations on the right, the risk of drawing historical principles at too high a level of generality is that a principle so derived could swallow the rule. We can see this in the way courts ask “why” historical laws limited the right to keep and bear arms. At a high level of generality, some erroneously argue that virtually every historical law existed to promote “public safety” or the “protection against harm from firearms,” so that any similar laws are justified today.

Heller itself made the point about what specific threat is being protected against. It dismissed Justice Breyer’s citation of a 1783 Boston law that prohibited depositing loaded firearms in dwellings and other buildings.[32] Justice Scalia noted that the statute’s text and its prologue made it clear “that the purpose of the prohibition was to eliminate the danger to firefighters” posed by those arms being held there.[33] But the handgun ban in the District was enacted not to protect firefighters but to combat the alleged “drastic increase in gun-related violence.”[34] Both rationales have something to do with “public safety,” but there is a gross mismatch between why the Boston ordinance was enacted and why the District’s law was passed; Heller found no support for the District’s handgun ban in the early law regarding depositing loaded firearms in dwellings.[35]

Two salient and recent examples where the Supreme Court has compared principles proffered by the government and rejected those formulated at a high level of generality are the Court’s discussion of “sensitive places” in Bruen, and the Court’s findings in Rahimi regarding when an individual may be temporarily disarmed from publicly carrying a concealed firearm. In Bruen, the Court rejected the “principle” allegedly ascertained from historical analogues that “‘sensitive places’ where the government may lawfully disarm law-abiding citizens include all “places where people typically congregate and where law-enforcement and other public-safety professionals are presumptively available.”[36] The Court rightly concluded that “expanding the category of ‘sensitive places’ simply to all places of public congregation that are not isolated from law enforcement defines the category of ‘sensitive places’ far too broadly. Respondents’ argument would in effect exempt cities from the Second Amendment and would eviscerate the general right to publicly carry arms for self-defense . . . .”[37]

In government-mandated gun free zone (“sensitive place”) cases, a better principle might be that the government can restrict Second Amendment rights by banning possession of firearms in discrete locations so long as the government provides comprehensive security for individuals within those locations so that individual self-defense is no longer needed.[38] That is a narrowly-drafted principle. Compare it to the wildly overgeneralized test proposed by New York and rejected by the Court in Bruen, and one can see the difference between a narrow principle that reflects the “how” and the “why” of a proposed principle, and one that is posited at too high a level of generality.

Rahimi provides an excellent example of the proper level of generality. Rahimi reviewed both surety statutes and laws against “affrays” or going armed “to the Terror of the People.”[39] From those, Rahimi distilled the historical legal principle that if an individual has been adjudicated to pose a credible threat of physical violence to another, the threatening individual may be temporarily disarmed.[40] Rahimi rejected the government’s claim that it could disarm those who were not “law-abiding” or “responsible.”[41] Chief Justice Roberts objected to the Solicitor General’s argument when she asserted that Rahimi could be disarmed because he was “irresponsible.” The Chief Justice observed that this proposed principle was vague and overbroad.[42] Indeed, a principle operating at this high a level of generality would disarm a vaguely defined, but undeniably large, swath of the population with ordinary self-defense needs.

IV. The Second Amendment Disqualifiers

As illustrated above, the Supreme Court has furnished some examples of levels of generality that are improper or too high, but so far it has not articulated a general test for levels of generality. This article proposes several rules (I call them “disqualifiers” or “third rails,” because, like the third rail on a train, it is fatal for a historical principle to touch one of these disqualifiers) that flow naturally from the Supreme Court’s caselaw, and that will help ensure that any principle so derived will be at the proper level of generality. If the principle derived from a basket of historical analogues touches a third rail, then it fails.  In addition, I’ve proposed one disqualifier (No. 2 below) that is not tied to the level-of-generality problem but offers a response to courts that have taken the wrong perspective in analyzing Second Amendment history.

These disqualifiers do not replace the detailed historical methodologies exemplified in Heller, elaborated in Bruen, and applied in Rahimi, but are meant to “test” whether a principle derived from a basket of suitable historical analogues is sufficiently narrow. The disqualifiers thus function as a confirming or disqualifying analytic.

Disqualifier No. 1:     A Derived Historical Legal Principle
Cannot Violate Supreme Court Precedent

A derived historical legal principle cannot contravene Supreme Court precedent. For example, Heller teaches that arms “in common use” for lawful purposes are protected.[43] So, if a lower court derives a principle that would permit banning arms in common use, then the principle being advocated by the government fails.

Today, so-called “assault weapon” bans and bans on “large capacity” (actually, standard capacity) magazines are being challenged around the country.[44] Any derived principle, which would supposedly justify a ban on the most popular rifle in U.S. history, or on magazines possessed in the hundreds of millions, ought to be dead on arrival as violative of Supreme Court precedent.[45]

Disqualifier No. 2:     A Derived Historical Legal Principle Must Not Be Based on the Misuse of Firearms by Criminals

Another disqualifier requires lower courts to reject any derived historical legal principle which rests on the potential misuse of firearms by criminals. The Supreme Court’s Second Amendment jurisprudence focuses on the lawful use of firearms by the law-abiding—not criminal misuse. Heller described handguns as “the quintessential self-defense weapon” and held that they were protected as arms “typically possessed by law-abiding citizens for lawful purposes”—notwithstanding Justice Breyer’s assertion in dissent that handguns were “the overwhelmingly favorite weapon of armed criminals.”[46] While Heller acknowledged “the problem of handgun violence in this country,” it explained that the Second Amendment “necessarily takes certain policy choices off the table”—specifically, in that case, bans on arms in common use by the law-abiding.[47] This focus on the law-abiding is not unusual. For example, while the internet is an important medium for the exercise of the First Amendment right of free speech, some people use the internet for illegal acts like distributing illegal pornography or violating copyright protections. Yet, this unlawful use of the internet may not be used to support banning (or heavily regulating) internet use for everyone, including law-abiding citizens.[48]

Another example of this is the frequent (and improper) recitation by courts of the use of AR-15 semi-automatic rifles in mass shootings. ARs have indeed been criminally misused in some highly-publicized mass shootings—although not as often as handguns, which are the most common weapon of mass shooters.[49] Regardless, like misuse in crime generally, misuse in mass shootings cannot be a basis to ban a firearm that is in common use by law-abiding citizens for lawful purposes. Any derived principle that would justify a ban on semi-automatic rifles would violate, at a minimum, the Supreme-Court-precedent disqualifier (Disqualifier No. 1), and the criminal-misuse disqualifier (Disqualifier No. 2).

Disqualifier No. 3:     A Derived Historical Legal Principle Must Not Contradict the Purposes Advanced by the Second Amendment

The third disqualifier rules out principles that undermine the purposes of the Second Amendment. A primary purpose is the right of law-abiding citizens to be armed to defend themselves and to resist tyranny.[50]  Because Heller confirmed that the Second Amendment protects the right to be “armed and ready for offensive or defensive action in case of conflict with another person,”[51] it is unlikely that the Founders would have approved, for instance, of a regulatory tradition making it difficult for law-abiding citizens to train with firearms. After all, as the Seventh Circuit explained in Ezell v. Chicago,[52] “[t]he right to possess firearms for protection implies a corresponding right to acquire and maintain proficiency in their use; the core right wouldn’t mean much without the training and practice to make it effective.”[53]

In addition to the right to maintain proficiency in the use of arms, the right to acquire and possess the firearms themselves must be protected in order to vindicate the Second Amendment’s purposes of self-defense, repelling invasions, resisting tyranny, and collective defense.

Disqualifier No. 4:     A Derived Historical Legal Principle Must Not Restrict or Prohibit Firearm-Related Activities that were Common at the Founding

The fourth disqualifier protects firearm-related activities that were common at the Founding. Thus, if a purported principle, if applied historically at the Founding, would have banned or restricted a common activity of that era, the principle must be rejected. As Bruen explained, “when a challenged regulation addresses a general societal problem that has persisted since the eighteenth century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment.”[54] In Bruen, arguments were advanced that there was no right to public carry at the Founding and that public carriage was a crime. In reality, carrying firearms in public was ubiquitous and a common practice of our most illustrious Founders, including the first several presidents. Any historical principle that would transform the leading members of the Founding generation into criminals cannot be correct.

Disqualifier No. 5:     A Derived Historical Legal Principle Cannot, In Effect, Deny Second Amendment Rights to Most Americans.

Any proffered principle that means to support a present-day firearms regulation that prohibits the general population, i.e., “the people” from exercising their Second Amendment rights is improper. An example of such a regulation is the “proper cause” requirement struck down in Bruen. That was limited to carry, but no principle can be countenanced that does not allow “all Americans” the right to possess a firearm.[55] Examples include “premises licenses” in New York, and “permit to purchase” laws in other states. Although certain specific people can be disarmed (e.g., violent felons), those are exceptions, not the rule. Anything that debars significant swaths of the general public from having arms would be a huge overgeneralization that touches a third rail. A similar principle applies to “sensitive places” legislation that ostensibly allows concealed carry, but then outlaws it in most public places. This includes laws, such as those in New York and New Jersey, that reverse the usual presumption that an owner of property accessible to the public can ban carry, but the burden is on the property owner to do so. The burden cannot be on the citizen-carrier to affirmatively get permission in advance. As Judge VanDyke explained in criticizing a Ninth Circuit decision blessing many of these locational restrictions, the only way the panel could uphold them was to “extract[ ] very broad principles from the historical record that could support the constitutionality of almost any firearms  restriction.”^[56]

V. Applying the Second Amendment Disqualifiers

In any Second Amendment case, except those in which the Supreme Court has already decided the issue (i.e., arm ban cases), lower courts must perform the Bruen text-first, history-second analysis to determine whether the challenged law is “consistent with this Nation’s historical tradition of firearm regulation.”[57] The disqualifiers perform a different function. They are designed to catch errors after the Heller/Bruen analysis has been initially performed and to indicate when historical lines have been drawn with too broad a brush. As shown below, this is where many lower courts go astray.

Fortunately, the disqualifiers are often easy to apply when considered in good faith, and do not require a deep dive into historical analogues. Much of the work has already been done by the Supreme Court. In Heller, the Court told us what historical principle will support an arms ban.[58] In Bruen, it told us what historical principles govern the right to carry firearms.[59] And in Rahimi it explained the historical principles that permit temporarily disarming those who have been judicially found to pose a credible threat of  physical harm to another.[60] Those three holdings alone resolve the lion’s share of Second Amendment issues percolating today, and the lower courts in most cases simply need to faithfully follow Supreme Court precedent.

A. Semiautomatic Rifles (“Assault Weapons”) and Magazines

Several states ban certain ordinary semi-automatic firearms, which they label “assault weapons.” Those states often pair that ban with a ban on so-called “large capacity magazines.”

Courts have offered several “principles” to justify such bans. Take, for example, Bevis v. Naperville,[61] where the Seventh Circuit recognized the “principle” that arms that are especially useful in military service can be banned.[62] In Bianchi v. Brown,[63] the Fourth Circuit recognized a historical principle of regulating “excessively dangerous” weapons.[64] In Hanson v. District of Columbia,[65] the D.C. Circuit found an ostensible tradition of banning arms capable of “unprecedented lethality.”[66] And the First Circuit in Ocean State Tactical, LLC v. Rhode Island,[67] wrongly recognized a tradition to protect against the greater dangers posed by “more dangerous” weapons.[68] Along these same lines, in Vermont Federation of Sportsmen’s Clubs v. Birmingham,[69] the district court found that our country had a “history of regulating mass threats to public safety.”[70]

Each of these purported principles runs afoul of a disqualifier. Heller already did the historical homework and derived the rule of decision to determine what types of arms the Second Amendment protects. The Court first noted that there was a tradition of banning the carrying of “dangerous and unusual weapons.”^[71] As the flipside of this, the tradition at the Founding was that men enrolled in the militia would bring with them the sorts of arms typically possessed by law-abiding citizens for lawful purposes.^[72] Taken together, this gives us the “principle” announced in Heller that an arm “in common use” cannot be “dangerous and unusual,” and thus cannot be banned.[73]

If we compare that principle, against the principles announced by lower courts in recent “assault weapon” ban cases, we find a conflict. Those purported principles would allow bans on “common” arms, provided, for example, that the lower court was convinced that those common arms were “excessively dangerous.”[74] Because the lower courts have no authority to deviate from the Supreme Court’s precedent, each of these principles violates Disqualifier No. 1, and cannot be the controlling rule.

These purported principles also violate Disqualifier No. 2, which prohibits recognition of a principle that focuses on criminal misuse of a weapon instead of lawful use, and Disqualifier No. 3, which renders infirm any principle that is contrary to the purposes of the Second Amendment. One critical purpose of the Second Amendment, as courts have repeatedly recognized since Heller, is self-defense. Self-defense is hampered by laws that require law-abiding citizens to eschew common, effective arms that their attackers can readily obtain.

B. Prohibited Persons (Violent Felons)

There are many lower court cases addressing which persons may be prohibited from possessing a firearm. Rahimi distilled the historical legal principle that if an individual has been adjudicated to pose a credible threat of physical violence to another, the threatening individual may be temporarily disarmed.[75] That principle violates no third rail because it promotes individual self-defense and burdens the right only for those specific individuals who pose an unacceptable danger of criminally misusing firearms. Rahimi rejected the government’s much broader prohibition, operating at a high level of generality, that it could disarm those who were not “law-abiding” or “responsible.”[76]

Despite Rahimi’s rejection of the notion that persons who are not “responsible” may be disarmed, at least two courts after Rahimi have adopted principles that are at least as broad and overgeneralized. The principle arrived at by the Eighth Circuit in United States v. Jackson[77] was that our history “prohibit[s] possession of firearms by persons who have demonstrated disrespect for legal norms of society.”[78] Similarly, the district court in United States v. Gutierrez[79] purported to find a “historical tradition of categorically disarming groups perceived as not ‘dependable adherents to the rule of law’ . . . .”[80] Such vague, meaningless standards were rejected as a matter of principle in Rahimi, and the Court found they “did not derive from our case law.”[81]

C. Age Restrictions on Adults

Under the laws of several states, while adults generally can own and carry firearms for self-defense, the rights of adults between 18 and 21 years old are truncated. Often states make it impossible for them to carry handguns for self-defense. And while federal law does not forbid them from owning a handgun, it forecloses them from buying one in the regulated commercial marketplace.[82]

In defending such laws, governments frequently make two arguments for why they should nevertheless be treated differently than the rest of “the people”:  (1) at the Founding, 18-year-olds were generally not considered adults, but were allegedly “minors” for most purposes and could have their rights truncated accordingly,[83] and (2) in the latter half of the nineteenth century, several states (though less than a majority) passed laws limiting the ability of minors under 21 to acquire certain weapons (generally, handguns, Bowie knives and dirks).[84] But neither of these arguments adduces a principle, which permits disarming 18-year-olds today.

This case is even easier than the Heller/Bruen analysis itself. Disqualifier No. 4 provides that the derived principle must not restrict or prohibit firearm-related activities that were common at the Founding. For 18 to 20-year-olds, there were no laws on the books disarming them. On the contrary, before, during, and after the ratification of the Second Amendment, every state had a militia statute requiring 18-year-olds to enroll and participate in their state’s militia; and the federal Militia Act of 1792 also required 18 to 20 year-olds to serve.^[85] As part of that duty, they were required to acquire and own firearms and bring them to militia muster. Any purported principle that would prohibit those common “firearm-related activities” violates Disqualifier No. 4 and cannot be used to justify present-day statutes.

D. Sensitive Places a/k/a Government-mandated Gun Free Zones

Following Bruen, many traditionally anti-gun states, which now must respect the right to carry a handgun, responded by passing laws preventing a person from carrying in “sensitive places.”

In Antonyuk v. James,[86] the Second Circuit erroneously derived the principle that vulnerable populations need to be protected and, based on that principle, deemed places “sensitive” where vulnerable populations gather.”[87] But this principle violates Disqualifier No. 3 because it disregards the purpose of the Amendment to protect the right of self-defense,[88] and violates Disqualifier No. 4 because it would be contrary to Founding-era practice.

In Wolford v. Lopez,[89] the Ninth Circuit declared that stadiums and museums were “sensitive places,” but public transit facilities and hospitals were not.[90] It also held that firearms could be presumptively banned at businesses in Hawaii, but not businesses in California. In a sure sign that something was amiss, the panel itself, even as it reached this nonsensical result, complained that its conclusion “appear[s] arbitrary” and that the places where firearms could and could not be banned “lack[ed] . . . an apparent logical connection.”[91] What was missing was a relevant principle that would support the challenged legislation. But Bruen gives us very strong hints about what that principle should be.

In Bruen, the Court suggested that there were certain “sensitive” places where arms could be banned, and it pointed to laws from the Founding that treated three places as sensitive: courthouses, legislative assemblies, and polling places.[92] Properly analyzing these laws means asking what principle permitted firearms to be banned there consistent with the Second Amendment. There is one common thread running through these places, yielding a principle that conforms to the Second Amendment’s function: at the Founding, the government provided security at these locations thus ensuring the safety of the public.[93] So, where the government provides comprehensive security and adequately protects its citizens in a discrete location, like a courthouse or the secure area of an airport today, it does not violate the Second Amendment to permit the government to ban firearm possession or carriage there. But where the government does not provide comprehensive security, it has no right to forbid law-abiding citizens from carrying there (after all, if a person intends to commit murder, he will not flinch at violating a gun-free zone law).

Historically speaking, where the government feared an attack but was not able or willing to provide comprehensive security itself, its response was not to ban firearms but to require them. At the Founding, as today, places of worship were unfortunately places where enemies of society would attempt to commit crimes, which is why, at the Founding, many states required churchgoers to arm themselves.[94]

Conclusion

The Supreme Court cautions that the principles derived from our historical tradition of firearm regulation must not be extracted at such a high level of generality that they eviscerate the fundamental right to bear arms. In addressing the level of generality, courts and litigants must check their work. Separately, courts must focus their analysis on the proper, legal use, of firearms, not on their misuse by criminals.  The “third rails” or disqualifiers help assess whether the principles derived from the government’s basket of allegedly suitable historical analogues are drawn too broadly or are otherwise invalid. A principle touches a “third rail” if:

1. The asserted principle would violate existing Supreme Court precedent, such as the holding that arms in common use by Americans for lawful purposes are protected.
2. The asserted principle would be based on a concern for criminal misuse rather the rights of the law-abiding.
3. The asserted principle would disregard the purpose of the Amendment to protect the right of self-defense and thwart tyranny, invasion, and criminality.
4. The asserted principle would permit restrictions on what were common firearms-related activities at the Founding. In other words, if the Founders engaged in a practice, courts should not endorse a principle that would let the government turn the Founders into felons.
5. The asserted principle cannot, in effect, deny Second Amendment rights to most Americans.

Incorporating these disqualifiers into the constitutional analysis, the Bruen/Heller methodology breaks down as follows:

Step one:  Determine whether the conduct being regulated by the challenged firearms law implicates the Second Amendment’s text.

Step two:  If yes, then the burden shifts to the government to demonstrate the existence of a longstanding historical tradition of firearms regulation dating back to the Founding.  The government must do so by supplying the court with a sufficient quantum of well-established, representative historical analogue laws.

Step three:  The court must assess “why” and “how” those analogues burden a law-abiding citizen’s right to armed self-defense, while discarding any historical laws that are improper to be considered as analogues. More formally, the questions are “whether modern and historical regulations impose a comparable burden on the right of armed self-defense” and “whether that burden is comparably justified.”[95]

Step four:  From the remaining suitable analogues, the courts must extract a relevant historical legal principle (the “derived principle”).  That principle must be derived from the why and the how of those analogues.

Step five:  The derived historical legal principle must not violate the Second Amendment’s third rails.

Step six:  If the derived historical legal principle passes muster (i.e., it does not violate any of the third rails), the court must then determine whether the modern firearms law is consistent with that legal principle.

[*] Mark W. Smith is a Visiting Fellow in Pharmaceutical Public Policy and Law in the Department of Pharmacology, Oxford University and a Distinguished Scholar and Senior Fellow of Law and Public Policy, Ave Maria School of Law. He hosts the Four Boxes Diner YouTube Channel (youtube.com/TheFourBoxesDiner), which addresses Second Amendment scholarship, history and issues, and whose educational videos have been viewed over 46 million times. His scholarship has been cited by federal courts and by attorneys before the United States Supreme Court in New York State Rifle & Pistol Ass’n v. Bruen and in United States v. Rahimi. He is a graduate of the NYU School of Law.

[2] 554 U.S. 570 (2008).

[3] 597 U.S. 1 (2022).

[4] 602 U.S. 680 (2024).

[5] My recent scholarly work discusses the application of the Heller/Bruen methodology: See generally Mark W. Smith, Dangerous, but not Unusual: Mistakes Commonly Made by Courts in Post-Bruen Litigation, 22 Geo. J.L. & Pub. Pol’y 599 (2024) available at https://www.law.georgetown.edu/public-policy-journal/wp-content/uploads/sites/23/2024/10/GT-GLPP240029.pdf [https://perma.cc/TK8A-GZ3K] (detailing the Bruen methodology as applied to modern Second Amendment lawsuits); Mark W. Smith, What Part Of “In Common Use” Don’t You Understand? How Courts Have Defied Heller In Arms-Ban Cases – Again, 41 Harv. J.L. & Pub. Pol’y Per Curiam (Fall 2023) (explaining how arms-ban cases are to be decided under Heller precedent), available at https://journals.law.harvard.edu/jlpp/what-part-of-in-common-use-dont-you-understand-how-courts-have-defed-heller-in-arms-ban-cases-again-mark-w-smith/ [https://perma.cc/N6HS-CKAS]; Mark W. Smith, Much Ado About Nothing: Rahimi Reinforces Bruen And Heller, 26 Harv. J.L. & Pub. Pol’y Per Curiam (Summer 2024), available at https://journals.law.harvard.edu/jlpp/wp-content/uploads/sites/90/2024/07/Smith-Much-Ado-About-Nothing-vf2.pdf [https://perma.cc/97WH-SQGJ] (explaining that the Rahimi decision is an ordinary and routine application of the pre-existing Bruen methodology); Mark W. Smith, NYSRPA v. Bruen: A Supreme Court Victory For The Right To Keep And Bear Arms—And A Strong Rebuke to “Inferior Courts,” 24 Harv. J.L. & Pub. Pol’y Per Curiam (Summer 2022), available at https://journals.law.harvard.edu/jlpp/wp-content/uploads/sites/90/2022/08/Smith-Bruen-vF1.pdf [https://perma.cc/G3N4-TS8C] (summarizing Supreme Court’s Bruen decision).

[6] Bruen, 597 U.S. at 17 (2022).

[7] Before a court can even consider deriving a principle, the government must identify a basket of suitable historical analogue laws. To be valid, a proposed historical analogue must be an actual law, including the common law, from the Founding era. Mark W. Smith, “Not All History Is Created Equal”: In the Post-Bruen World, the Critical Period for Historical Analogues Is when the Second Amendment Was Ratified in 1791, and not 1868 (Oct. 1, 2022) (working paper) (available at https://ssrn.com/abstract=4248297 or http://dx.doi.org/10.2139/ssrn.4248297 [https://perma.cc/TSZ5-RY2Z]); Mark W. Smith, Attention Originalists: The Second Amendment Was Adopted in 1791, Not 1868, 31 Harv. J.L. & Pub. Pol’y Per Curiam (Fall 2022). Historical laws with racist or otherwise unconstitutional foundations cannot be considered as analogues. As Justice Kavanaugh stated in his Rahimi concurrence, “courts must exercise care” not to rely on “the history that the Constitution left behind.” United States v. Rahimi, 144 S. Ct. 1889, 1915 (2024) (Kavanaugh, J., concurring). Analogues must also be “well-established” and “representative.” Bruen, 597 U.S. at 21. A handful of outliers that either existed for only a short time, or did not affect substantial swaths of the national population, cannot establish a historical tradition.

[8] District of Columbia v. Heller, 554 U.S. 570, 627 (2008).

[9] Id. at 624.

[10] Id. at 629.

[11] Bruen, 597 U.S. at 29.

[12] Id. at 70.

[13] Id. at 71.

[14] United States v. Rahimi, 602 U.S. 680, 697 (2024).

[15] Id. at 682.

[16] Id.

[17] Id. at 767 (Thomas, J., dissenting).

[18] Id. at 681 (majority opinion).

[19] Id. at 700.

[20] Id. at 701.

[21] Id. at 739 (Barrett, J., concurring).

[22] Id. at 701 (majority opinion).

[23] United States v. Rahimi, 144 S. Ct. 1889, 1926 (2024) (Barrett, J., concurring).

[24] Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 256–57 (2022).

[25] White v. Pauly, 580 U.S. 73, 79 (2017).

[26] Michael H. v. Gerald D., 491 U.S. 110, 127 (1989) (Scalia, J.) (plurality opinion).

[27] Washington v. Glucksberg, 521 U.S. 702, 722–23 (1997).

[28] Id.

[29] Id. (quoting Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 279 (1990)).

[30] Id.

[31] Id. at 720–21.

[32] See District of Columbia v. Heller, 554 U.S. 570, 631 (2008).

[33] Id.

[34] Id. at 694 (Breyer, J., dissenting).

[35] Id. at 631 (majority opinion); see also id. at 632–33 (citing colonial-era laws penalizing shooting off guns on New Year’s Eve, firing guns in city streets and taverns, or within the Town of Boston). The danger to be guarded against was stray bullets, not using firearms to commit violent crime as with the District’s handgun ban. The “whys” simply did not add up, and the “public safety” rationales were not at all comparable.

[36] New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 30–31 (2022).

[37] Id. at 31.

[38] Id. at 30–31.

[39] United States v. Rahimi, 602 U.S. 680, 697 (2024).

[40] Id. at 702.

[41] Id. at 701.

[42] Id. at 701–02.

[43] District of Columbia v. Heller, 554 U.S. 570, 627 (2008).

[44] See discussion in Part IV, below.

[45] See generally Smith, supra note 5 Dangerous, but not Unusual:  Mistakes Commonly Made by Courts in Post-Bruen Litigation, at 606, 619–20, 624–39; Smith, supra note 5 What Part of “In Common Use” Don’t You Understand?: How Courts Have Defied Heller in Arms-Ban Cases — Again, at 3–5.

[46] Heller, 554 U.S. at 629, 625; id. at 682 (Breyer, J., dissenting).

[47] See id. at 636 (majority opinion).

[48] See generally Mark W. Smith, A Judicial Teaching Point:  The Lesson of the Late Justice John Paul Stevens in Sony v. Universal City Studios as a Response to Civil Lawfare, 1 Arizona State Univ. Corporate and Business L.J. Issue 2, 71, 72–75 (June 2020) (discussing Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984) (the misuse of VCR equipment for unlawful purposes is not a basis to ban the widespread use of VCRs for legitimate, unobjectionable purposes)) available at https://cablj.org/wp-content/uploads/2020/06/Final-Smith.pdf.

[49] Weapon types used in mass shootings in the United States between 1982 and September 2024, by number of weapons and incidents, Statista.com (Dec. 9, 2024), https://www.statista.com/statistics/476409/mass-shootings-in-the-us-by-weapon-types-used/ [https://perma.cc/9THT-TXQ8].

[50] Story, Joseph, Commentaries on the Constitution 3:§ 1890 (“The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them”)  (available at https://press-pubs.uchicago.edu/founders/documents/amendIIs10.html#:~:text=The%20right%20of%20the%20citizens,the%20people%20to%20resist%20and). During oral argument in Heller, Justice Kennedy asked counsel for the District, somewhat skeptically, if the right to keep and bear arms “had nothing to do with the concern of the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that?” Transcript of Oral Argument at 14, District of Columbia v. Heller, 554 U.S. 570 (2008) (No. 07-290). Justice Kennedy’s inquiry is informative because it identifies the many threats the early settlers faced at the Founding.

[51] Heller, 554 U.S. at 584.

[52] 651 F.3d 684 (7th Cir. 2011).

[53] Id. at 704.

[54] New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 26 (2022).

[55] Id. at 70.

[56] Wolford v. Lopez, — F.4th —, 2025 WL 98026, at *12 (9th Cir. 2025) (VanDyke, J., dissenting from denial of rehearing en banc).

[57] Id. at 17.

[58] District of Columbia v. Heller, 554 U.S. 570, 627 (2008).

[59] Bruen, 597 U.S. at 70.

[60] United States v. Rahimi, 602 U.S. 680, 695–97 (2024).

[61] 85 F.4th 1175 (7th Cir. 2023).

[62] Id. at 1202.

[63] 111 F.4th 438 (4th Cir. 2024).

[64] Id. at 446.

[65] 120 F.4th 223 (D.C. Cir. 2024).

[66] Id. at 237.

[67] 95 F.4th 38 (1st Cir. 2024).

[68] Id. at 48.

[69] No. 2:23-cv-710, 2024 WL 3466482, at *1 (D. Vt. July 18, 2024).

[70] Id. at *30.

[71] District of Columbia v. Heller, 554 U.S. 570, 627 (2008).

[72] Id. at 624–25.

[73] See generally Smith, supra note 5 Dangerous, but not Unusual:  Mistakes Commonly Made by Courts in Post-Bruen Litigation, at 606, 619–20, 624–39; Smith, supra note 5 What Part of “In Common Use” Don’t You Understand?: How Courts Have Defied Heller in Arms-Ban Cases — Again, at 3–5.

[74] Bianchi v. Brown, 111 F.4th 438, 446 (4th Cir. 2024).

[75] United States v. Rahimi, 602 U.S. 680, 702 (2024).

[76] Id. at 701.

[77] 110 F.4th 1120 (8th Cir. 2024).

[78] Id. at 1127.

[79] No. 1:22-CR-00329, 2024 WL 4041321, at *1 (N.D. Ill. Sept. 4, 2024).

[80] Id. at *8.

[81] Rahimi, 602 U.S. at 701.

[82] Federal law is bizarre and perverse because it pushes 18-year-olds into the unregulated secondary market—an 18-year-old cannot buy a handgun at a sporting goods store (which would require a background check), yet he can buy one out of someone’s trunk in the parking lot.

[83] Worth v. Jacobson, 108 F.4th 677, 690  (8th Cir. 2024); Lara v. Comm’r Pa. State Police, 91 F.4th 122, 131–32 (3d Cir. 2024), cert. granted, judgment vacated, 2024 WL 4486348 (U.S. Oct. 15, 2024); see also Hirschfeld v. BATFE, 5 F.4th 407, 422–23, 435–36 (4th Cir. 2021), vacated as moot, 14 F.4th 322 (4th Cir. 2021) (Although Hirschfeld was decided pre-Bruen, its mode of analysis anticipated much of what Bruen would establish.)

[84] Worth, 108 F.4th at 696–98; Hirschfeld, 5 F.4th at 437–40; see also Lara, 91 F.4th at 134 & n.15 (recognizing the argument but declining to consider such laws as too late in time entirely).

[85] See Militia Act of 1792, Art. I (May 2, 1792), Constitution.org, https://www.constitution.org/1- Activism/mil/mil_act_1792.htm [https://perma.cc/D4DQ-UUM3]; NRA v. BATFE, 714 F.3d 334, 340 n.8 (5th Cir. 2013) (Jones, J., dissenting) (collecting ratification-era militia laws).

[86] No. 22-2908, 2023 WL 11963034, at *1 (2d Cir. Oct. 24, 2024).

[87] Id. at *48–49.

[88] Disarming people who most benefit from the ability to engage in self-defense makes no sense.

[89] 116 F.4th 959 (9th Cir. 2024).

[90] Id. at 1003.

[91] Id.

[92] New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 31 (2022).

[93] See Smith, supra note 5 Dangerous, but not Unusual:  Mistakes Commonly Made by Courts in Post-Bruen Litigation, at 644–53 (detailing the Bruen methodology as applied to modern Second Amendment lawsuits).

[94] See generally Benjamin Boyd, Take Your Guns to Church: The Second Amendment and Church Autonomy, 8 Liberty Univ. L. Rev. 653, 697–99 (2014) (collecting colonial- and Founding-era historical law for requiring firearms at church services).

[95] Bruen, 597 U.S. at 29.

Misconstruing the Electoral Count Act: A Response to Evan A. Davis and David M. Schulte – Seth Barrett Tillman

Posted by JLPP on Jan 1, 2025 in Per Curiam

Misconstruing the Electoral Count Act: A Response to Evan A. Davis and David M. Schulte

Seth Barrett Tillman*

In an article appearing on The Hill,[1] Evan A. Davis and David M. Schulte put forward the position that president-elect Trump is barred by Section 3 of the Fourteenth Amendment from becoming President. Or, to put it more plainly, in spite of the Supreme Court’s decision in Trump v. Anderson,[2] Congress is free to ignore the Court’s decision and to determine that Trump was and remains disqualified. In those circumstances, the vote of presidential electors cast for Trump was a nullity. Given that the only remaining and otherwise lawful votes cast by presidential electors were cast for Vice President Kamala Harris, it is Harris who prevailed in the election, and she should be seated under the rules of the Electoral Count Act (1887) (as amended through 2022).[3]

Davis and Schulte explain:

A vote for a candidate disqualified by the Constitution is plainly in accordance with the normal use of words “not regularly given” [in the Electoral Count Act]. Disqualification for engaging in insurrection is no different from disqualification based on other constitutional requirements such as age, citizenship from birth and 14 years’ residency in the United States.

To make an objection under the Count Act requires a petition signed by 20 percent of the members of each House. If the objection is sustained by majority vote in each house, the vote is not counted and the number of votes required to be elected is reduced by the number of disqualified votes. If all votes for Trump were not counted, Kamala Harris would be elected president.[4]

Simply put, Davis and Schulte’s analysis is not correct.

Challenges under the Electoral Count Act come in two varieties: Type-I and Type-II challenges. Generally speaking, Type-I challenges are allegations of pre–appointment illegality involving presidential electors, 3 U.S.C. § 15(d)(2)(B)(ii)(I), and Type-II challenges are allegations of post–appointment illegality involving presidential electors, 3 U.S.C. § 15(d)(2)(B)(ii)(II).[5] Again, generally speaking, a Type-I challenge involves an allegation that a purported presidential elector was not lawfully appointed or “certified.”[6] By contrast, a Type-II challenge involves an allegation that an elector’s “vote” was not “regularly given.”[7]

The Constitution requires that a prevailing candidate for President in the Electoral College has a majority vote of all “appointed” electors.[8] Where the two Houses of Congress under the Electoral Count Act nullify a state’s slate of electors based on a Type-I challenge, there is a two-fold effect. First, the votes cast by those presidential electors are not counted. Second, the denominator, that is, the number of electors considered lawfully “appointed,” is reduced by the number of electors which were rejected.[9] But Type-II challenges are different. In a Type-II challenge, involving post-appointment illegality, where the challenge is upheld, the votes cast by those presidential electors are not counted, but the denominator is not reduced precisely because there was no challenge to the elector’s or the electors’ appointments.[10]

Davis and Schulte argue that Congress should adopt the position that the presidential electors’ votes for Trump were not “regularly given.” Of course, that is strictly a Type-II challenge, which leaves the denominator unaffected. Were every Trump elector thrown out by the Joint Session of Congress, then the final electoral vote would be Trump-0 to Harris-226 with 538 lawfully “appointed” electors. Because Harris would still lack a majority of all lawfully “appointed” electors, that is, she would still lack 270 of 538 lawfully “appointed” electors, no President would be elected by the presidential electors. In those circumstances, the process for electing the President would fall to the House, where the election would be held under constitutional and other elections provisions unique to House contingency elections for the President.[11] In the soon to be seated 119th Congress, the Republicans will have a (narrow) majority of all House seats, and the Republicans will have a majority (that is 29) of 50 state House delegations,[12] and, in all likelihood, the Republicans will elect the Speaker—and so, the Republicans will control the floor during all House proceedings to elect the President. Sooner or later, a Republican House, with a Republican Speaker, will elect a Republican President—the Republican majority will certainly not elect Harris.

This result is hardly surprising. A recurring fact pattern in electoral politics is that the prevailing candidate dies or is otherwise determined ineligible. Under the English Rule, in certain circumstances, the next placed candidate carries the election.[13] Not so here. Under the traditional American Rule, on such facts, the runner-up is not declared the winner. Rather, the election has failed to produce a winner, and a vacancy is declared. This has been the majority, if not the universal rule across U.S. jurisdictions since the Founding Era.[14] Why would the presidency be any different?

Were Davis and Schulte’s advice heeded, Harris would not become President. Their advice, at most, will only delay the Republicans from holding the presidency.

* Seth Barrett Tillman is an associate professor in the Maynooth University School of Law and Criminology, Ireland / Scoil an Dlí ages na Coireolaíochta Ollscoil Mhá Nuad.

[1] Evan A. Davis & David M. Schulte, Congress has the power to block Trump from taking office, but lawmakers must act now, The Hill (Dec. 26, 2024, 8:00 AM ET), https://tinyurl.com/rfmuxry5.

[2] 601 U.S. 100 (2024) (per curiam).

[3] Electoral Count Act, 49th Cong. 2d Sess., ch. 90, 24 Stat. 373 (1887), as amended by Electoral Count Reform and Presidential Transition Improvement Act of 2022, 136 Stat. 5233, Pub. L. 117–328.

[4] Davis & Schulte, supra note 1 (emphasis added).

[5] See Derek T. Muller, Electoral Votes Regularly Given, 55 Ga. L. Rev. 1529, 1540 (2021) (“This Essay has argued that ‘regularly given’ refers to a limited set of post-appointment controversies.”); Stephen A. Siegel, The Conscientious Congressman’s Guide to the Electoral Count Act of 1887, 56 Fla. L. Rev. 541, 617 n.462 (2004) (explaining that an objection alleging that electors’ votes were not “regularly given” is “an inappropriate ground for objecting” where “there was no post-appointment misbehaviour” by the purported electors); Michael Stern, How to Count to 270: The Electoral Count Act and the Election of 2000, Point of Order (Jan. 14, 2016), https://tinyurl.com/ymp8dayv (explaining that “the legislative history of the [Electoral Count Act] seems to show clearly that the phrase ‘regularly given’ refers to the conduct of the electors (such as voting for ineligible candidates), not to how the electors were chosen”).

[6] 3 U.S.C. § 15(d)(2)(B)(ii)(I).

[7] 3 U.S.C. § 15(d)(2)(B)(ii)(II).

[8] See U.S. Const. art. II, amended by id. amend. XII.

[9] See 3 U.S.C. § 15(e)(2).

[10] See id.

[11] See U.S. Const. art. II, amended by id. amend. XII. See generally William Josephson, Senate Election of the Vice President and House of Representatives Election of the President, 11 U. Pa. J. Const. L. 597 (2009).

[12] A look at the partisan composition of the incoming state delegations for the 119th Congress, Ballotpedia News (Dec. 6, 2024, 6:27 AM), https://tinyurl.com/3z5f6p39.

[13] See, e.g., In re Parliamentary Election for Bristol S.E., [1964] 2 QB 257 (Gorman & McNair, JJ.) (Eng.) (declaring, after his prevailing in an election, that Anthony Wedgwood Benn, M.P., was barred from holding a U.K. House of Commons seat, as a result of Benn’s having succeeded to a House of Lords seat which had been held by his late father, and further determining that the runner-up candidate takes the seat as a matter of law, absent any new election).

[14] See Chester H. Rowell, A Historical and Legal Digest of all the Contested Election Cases in the House of Representatives of the United States from the First to the Fifty-Sixth Congress, 1789–1901, at 220 (1901) (reporting majority’s committee report, in Smith vs. Brown (40th Cong.), which stated: “the English rule had never been applied in this country and was hostile to the genius of our institutions”); Jack Maskell, Cong. Research Serv., RL31338, Disqualification, Death, or Ineligibility of the Winner of a Congressional Election (2002). See generally Result of election as affected by votes cast for deceased or disqualified person, 133 A.L.R. 319 (1941 to current).

St. John Henry Newman’s Development of Doctrine and Law: Some Preliminary Notes and Questions – Jeffrey A. Pojanowski

Posted by JLPP on Nov 26, 2024 in Per Curiam

St. John Henry Newman’s Development of Doctrine and Law: Some Preliminary Notes and Questions

Jeffrey A. Pojanowski*

When one thinks about the relationship between Newman’s thought on the development of doctrine in the Church and the development of legal doctrine, it is hard to know where to begin. There are so many potential parallels and fruitful avenues of inquiry, but also worries about superficial resemblances or imperfect analogies between theological doctrine and legal doctrine. This is all the more challenging because Newman’s work on doctrinal development is complex, subtle, and hotly contested. That different theologians interpret Newman in such different directions makes it all the trickier for the interloper. One cannot help but feel that one is building the ship while at sea.

To anchor this discussion, I will rely on the work of three excellent scholars. First, my legal focal point is Professor Marc DeGirolami’s work on tradition in general and constitutional law in particular.[1] This work, which is the occasion for this conference, is theoretically sophisticated and, given the recent prominence of tradition of the Supreme Court’s constitutional decisionmaking, timely indeed.[2] For the theological side of the discussion, in addition to Newman’s masterwork on doctrinal development,[3] I have profited from reading two recent, excellent works by Professors Matthew Levering and Tracey Rowland.[4]

Rowland contends that Newman’s work served as a crucial via media in Catholic theology between intellectualism and historicism.[5] Theories about legal doctrine have similarly dangerous terrain. First, consider intellectualism. Scholars of private law will be well aware of philosophies of tort, contract, and property that drink deeply of Kant’s philosophy of right or Hegelian understanding of personhood but treat messier case law as unfortunate dregs at the bottom of the glass. Rationalist theories of constitutional law also abound, as we observe Ronald Dworkin’s Judge Hercules (and his judicial imitators) laboring to make the Constitution the best it can be in light of abstract political morality.[6]

Historicism also abounds, especially in pragmatic legal theory. For all their differences in other respects, legal realists and descriptive doctrinalists alike in private law regard the common law as contingent developments directed by forces of history or general intellectual trends. Much of the same can be said for constitutional law, including by originalists of the legal positivist variety who think the domain of law is limited to rules and conventions that we happen to have. There, in the legal domain at least, all that succeeds is success.

One might note, provocatively here in a conference focused on tradition, that some forms of legal traditionalism are particularly susceptible to the risk of historicism. One of the early leading theorists of the common law tradition was David Hume, whose conventionalism is well known.[7] Classical common lawyers often had a kind of ambivalence about natural law, leaving it to lie at the subterranean level and feeling much more comfortable talking about how the law is suitable to the ways and practices of a particular people.[8] More contemporary theorists of classical common law thinking like Brian Simpson and Gerald Postema also focus on convention, shared reasoning, and local particularity.[9] And if one reads Martin Krygier, the excellent Australian philosopher of legal tradition, it is hard to find anything but tradition as the fundament of law.[10] To echo Levering’s question: Could there be any standard for corruption if all that succeeds in tradition is historical success?[11]

The specter of relativism therefore hangs over this approach to traditionalism. Professor DeGirolami, as a natural lawyer and non-relativist, would surely like to avoid that. And his theory traditionalism in constitutionalism does that: there is some space for the critique and replacement of bad traditions, with “bad” meaning objectively wrong as a moral matter, not simply unpopular.[12] But how does one find a via media here in law?

It is important to note here that merely transposing Newman’s “seven notes”[13] of doctrinal development to the legal context might not be enough. Certainly, they are illuminating aids for seeing how a body of law can be coherent within itself, how a tradition can grow in an organic fashion rather than sit frozen in amber. It can provide a measure, internal to the body of law itself, of doctrinal development or corruption. Any student of ordinary doctrinal legal science would benefit from seeing how Newman’s seven notes characterize the development of a doctrinal tradition.[14]

But tradition, for Newman, was not enough. Presumably one could use the seven notes to track the development of Eastern Orthodox or Protestant doctrine, or the development of Halachah and particular schools of Islamic Jurisprudence. That fact would not lead him to assent to those teachings. Tradition, as Newman understands it, seems crucial for building a mode of thought that is an alternative to deductive rationalism or idealism but is not sufficient unto itself.[15] Non-historicist legal theorists who value tradition, then, need something more.

It is therefore worth briefly considering the other building blocks in addition to tradition that Professor Rowland notes in her chapter on Newman. She identifies three others besides “the organic account of tradition”: first: a “historical account of Revelation”; second, an understanding of the teaching office of the Pope and the ecclesia docens more generally; and third, conscience.[16] I will focus on the first two.

First, revelation. Newman does not value tradition for its own sake, but rather for the way it can help reveal a deposit of faith that has always existed but becomes clearer to us in the fulness of time.[17] If we are going to transpose the development of legal doctrine, especially constitutional doctrine, into a Newmanian key, it is worth wondering whether there is a legal analogue to “revelation” and what it would look like. This raises very important questions that I cannot easily answer but are worth considering.

Now, we need to be very careful here, lest we slide into a kind of legal idolatry. Nevertheless, if the development of legal doctrine is to avoid just being the story of one thing after another, there needs to be a measure of doctrinal corruption more robust than internal coherence. One natural candidate is, of course, the natural law. I believe in natural law and think all human law is answerable to it, but I worry whether that alone is enough of an anchoring analogue. The natural law directs, but leaves unanswered, many important questions of human affairs. While this suggests the natural law can provide inspiration for, and a salutary check on, the development of tradition, it also seems to present risks for understanding natural law alone as the anchoring source of human law’s magisterium.

My worry here is that it seems odd to suggest that the development of our contingent legal system is the revelation of the natural law over time. This is so even if the legal system is entirely compliant with the natural law, which underdetermines so many questions. It may be plausible to say our Constitution, ratified in 1789, in some sense provided the seed for the Supreme Court’s doctrine on the removal of executive officers in a fashion analogous to the way that the magisterium always contained but had not yet articulated the Assumption of Mary.[18] It would be strange, however, to say the natural law contained the seed of such officer-removal doctrine. Especially since many just constitutions have no such provision. On the other side of the coin, it is not so easy for Catholics to say the Immaculate Conception was one of many reasonable options for revelation in the way we can say that about the contents of Article II, section 2 of the U.S. Constitution.

A more fitting analogue, then, seems to be a kind of foundational document or, if we are in a country with an unwritten constitution, statutes and fixed practices of equivalent status. A tradition that departs from that original, fixed lodestar law is a doctrinal corruption, which is the measure and starting point of any tradition.[19] To put it in originalist terms, doctrinal development can occur in the construction zone but cannot replace interpretation of the original norms.

I suspect Professor DeGirolami would resist this, though his theory does have a proviso that says traditions cannot depart from the clear text of the constitution.[20] And I wonder if Newman and the Fathers of Vatican II would resist the analogy as well. This analogy views human law, and its revelatory analogue, as a kind of propositional information contained in a canonical document (and its separate source of tradition, whose teachings are somehow “contained” in scripture). Dei Verbum, however, treats scripture and tradition as interpenetrating each other and working together as the living revelation of Christ himself in our world.[21] Understanding sublunar, civil law in those terms, however, is trickier. Taking the analogy too seriously risks treating all human law as the unfolding of some kind of divine plan (and thus either ignores or gives little explanation for human law’s well known and crucial variety) or it suggests a kind of legal polytheism where each system has an eternal essence revealed in the fulness of time through legal science. And I know Professor DeGirolami does not want to go back to the most exotic branches of the historical school of jurisprudence and its discussion of national essences and the like. So, either we need to think more and better about human law and how it can relate to revelation in our adaptation, or perhaps we need to conclude that translating Newman to this context requires a humbler understanding of a doctrinal anchor. And if it is the latter, we might need something more fixed if tradition and development are to be more than just change over time.

Second, there is Newman’s understanding of the role of the Pope and the ecclesia docens. Although Newman rejected the strongest versions of ultramontanism on offer,[22] he gave an important role to the Holy Office as an authoritative developer of doctrine.[23] A crucial custodian of tradition that helps manifest revelation, if you will. Some classical common lawyers would readily agree, though focusing more on the learning of the twelve men in scarlet who used to supervise the King’s justice. As Brian Simpson wrote, a traditionary system “can function only if it can preserve a considerable measure of continuity and cohesion, and it can do this only if mechanisms exist for the transmission of traditional ideas and the encouragement of orthodoxy.”[24] In the development of Catholic doctrine, at least, the papacy plays an important, if contested role. Professor DeGirolami’s work on constitutional traditionalism pays some credence to such a need: he does not argue for a kind of popular constitutionalism in which the courts in general, and the Supreme Court in particular, get entirely out of the way and allow the people to govern themselves through their own organic traditions alone.[25]

The Supreme Court’s role is for Professor DeGirolami, however, somewhat ambiguous. The primary driver of determining traditional constitutional meaning under his theory is popular practice.[26] The role of the Supreme Court, then, is to identify and recognize authoritatively the popular practices that are presumptively authoritative for the meaning of what our law is.[27] One can’t help but reach for sensus fidelium analogies here. But the Church doesn’t treat sensus fidelium as the same things as majority opinion or popular custom. As Pope Francis said in his 2013 address to the International Theological Commission, for authentic expressions of the sensus fidelium, there needs to be a disposition of participation in the life of the Church, listening to the word of God, openness to reason, adherence to the magisterium, holiness, and seeking edification in the Church.[28] As Rowland points out in her chapter, for Newman “it is the saints who embody the sensus fidei in its highest power and especially the saints who stand out among the Church doctors.”[29] If, for the lawyers in the room, we are going to draw a crude analogy, sensus fidelium looks a lot more like the constitutional doctrine of liquidation, where prominent members who are faithful to the constitution seek to settle through argument and reasoned decision the meaning of an uncertain provision,[30] not the more populist, practical construction we see in Professor DeGirolami’s legal traditionalism.[31]

Again, law is not theology and the constitution is not Our Lord’s revelation incarnate on Earth. It is possible we need to adjust our analogies accordingly. And, if we do, there could be difficult questions about what a system that hangs together well in Catholic theology can tell us once we alter the dimensions of some of those building blocks. In any event, the parallels and resemblances between the two systems of development are too striking to ignore. Nevertheless, if we are going to discover what Newman’s development of doctrine can teach us about law, we might first have to answer important threshold questions about the nature and relevant similarities between human law and revelation, the proper way of reading those texts, and the constitutive role of the people in the City of Man versus the City of God. Those answers will take far more than one person with fifteen minutes to provide, but it sounds like a very fruitful research agenda for a community of Catholic legal scholars. I am clearly in the right place to raise these questions about Newman and the law, and Catholic University’s Columbus School of Law could not have picked a better eponymous chair to lead the pursuit of such answers.

* Biolchini Family Professor of Law, Notre Dame Law School. This essay is adapted from remarks the author delivered on October 18, 2024, at the conference “St. John Henry Newman, Tradition, and Law,” hosted by the Catholic University of America’s Columbus School of Law and Center for Law and the Human Person.

[1] See generally, e.g., Marc O. DeGirolami, The Very Idea of Tradition, 35 Harv. J. L. & Pub. Pol’y Per Curiam (2024) [hereinafter DeGirolami, Idea of Tradition]; Marc O. DeGirolami, Traditionalism Rising, 24 J. Contemp. Legal Issues 9 (2023) [hereinafter DeGirolami, Traditionalism Rising]; Marc O. DeGirolami, The Traditions of American Constitutional Law, 95 Notre Dame L. Rev. 1123 (2020) [hereinafter DeGirolami, Traditions of American Constitutional Law].

[2] See, e.g., United States v. Rahimi, 144 S. Ct. 1889, 1898 (2024) (“[T]he appropriate analysis [under the Second Amendment] involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” (citing New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2111 (2022))); see also Sherif Girgis, Living Traditionalism, 98 N.Y.U. L. Rev. 1477, 1496–1502 (2023) (cataloging the extent to which the Court’s jurisprudence relies on tradition to inform constitutional meaning).

[3] John Henry Cardinal Newman, An Essay on the Development of Christian Doctrine (6th ed. 1989).

[4] Matthew Levering, Newman on Doctrinal Corruption (2022); Tracey Rowland, John Henry Newman on the Development of Doctrine: A Via Media between Intellectualism and Historicism, in A Guide to John Henry Newman: His Life and Thought 352 (Juan R. Vélez ed., 2022).

[5] Rowland, supra note 4, at 354 (citing Heinrich Fries, Newmans Bedeutung für die Theologie, in Newman Studies Erste Folge 181–99 (1948)).

[6] See Ronald Dworkin, Law’s Empire 239 (1986) (introducing his mythical Judge Hercules).

[7] See Gerald J. Postema, Bentham and the Common Law Tradition 110–43 (1986).

[8] See id. at 37 (“[T]his reveals a deep ambiguity in Common Law theory, for it is not clear whether Common Law is regarded as itself defining the standard of reason and justice in this area of social life (Common Law regarded as reason), or whether Common Law is the working out of reason (reason regarded as working in or through Common Law). Both can be regarded as historicist . . . .”).

[9] See generally Gerald J. Postema, Philosophy of the Common Law, in The Oxford Handbook of Jurisprudence and Philosophy of Law 588 (Jules Coleman & Scott Shapiro eds. 2002); Brian Simpson, The Common Law and Legal Theory, in A.W.B. Simpson, Legal Theory and Legal History: Essays on the Common Law 359 (1986).

[10] See generally Martin Krygier, Law as Tradition, 5 Law & Phil. 237 (1986).

[11] See Levering, supra note 4, at 41 (“My goal is to reflect with Newman upon the threat of doctrinal corruption as it presented itself to him over the course of his long career of faithful proclamation of the Gospel.”)

[12] See Marc O. DeGirolami, First Amendment Traditionalism, 97 Wash. U. L. Rev. 1653, 1671 (2020) (“[T]here are times where a tradition violates a moral or political principle of great power that defeats it—and rightly so.”) [hereinafter DeGirolami, First Amendment Traditionalism].

[13] See Newman, supra note 3, at 169–206.

[14] See, e.g., DeGirolami, Idea of Tradition, supra note 1; Adrian Vermeule, Common Good Constitutionalism 123–24 (2022) (drawing on Newman’s seven notes to distinguish development from corruption in constitutional doctrine).

[15] See Rowland, supra note 4, at 361 (stating that “the organic account of tradition [was] not however Newman’s only building blocks” for constructing his doctrinal theory).

[16] Id. at 361–62.

[17] See Levering, supra note 4, at 38–39 (“Newmanian doctrinal development does not entail moving beyond the apostolic deposit of faith as communicated in Scripture and Tradition, as though new revelation were being received or parts of revelation now could be rejected.”).

[18] Compare Morrison v. Olson, 487 U.S. 654 (1988) (seeking to synthesize conflicting doctrine on the President’s power to remove principal officers) with Pope Piux XII, Apostolic Constitution of Pope Pius XII, Munificentissimus Deus (Nov. 1, 1950), https://www.vatican.va/content/pius-xii/en/apost_constitutions/documents/hf_p-xii_apc_19501101_munificentissimus-deus.html [https://perma.cc/F6XJ-LEWM] (defining the dogma of the Immaculate Conception of Mary).

[19] Cf. Jeffrey A. Pojanowski and Kevin C. Walsh, Recovering Classical Legal Constitutionalism: A Critique of Professor Vermeule’s New Theory, 98 Notre Dame L. Rev. 403, 415 (2022) (“The central criterion [for such a theory of development is] whether the legal development [is] consistent with or authorized by the original law of the Constitution, or rather a departure that contravenes the original law.”).

[20] See DeGirolami, First Amendment Traditionalism, supra note 12, at 1666 (noting that “clear text to the contrary” can displace traditional practices).

[21] Documents of the Second Vatican Council, Dei Verbum, No. 9 (Nov. 18, 1965),  https://www.vatican.va/archive/hist_councils/ii_vatican_council/documents/vat-ii_const_19651118_dei-verbum_en.html [https://perma.cc/3YLA-HQ4F] (“Hence there exists a close connection and communication between sacred tradition and Sacred Scripture. For both of them, flowing from the same divine wellspring, in a certain way merge into a unity and tend toward the same end . . . . Therefore both sacred tradition and Sacred Scripture are to be accepted and venerated with the same sense of loyalty and reverence.” (footnote omitted) (citing Council of Trent, session IV, Decree on Scriptural Canons: Denzinger 783 (1501))).

[22] See Levering, supra note 4, at 317 (“Most importantly, Newman rejects a maximalist interpretation of the dogma.”)

[23] See Rowland, supra note 4, at 361–62 (citing Heinrich Fries, Die Dogmengeschichte des fünften Jahrhunderts im theologischen Werdegang von John Henry Newman, in 3 Das Konzil von Chalkedon 431 (Aloys Grillmeier, S.J., & Heinrich Bacht, S.J., eds. 1954)).

[24] Simpson, supra note 9, at 377.

[25] DeGirolami, Idea of Tradition, supra note 1.

[26] See DeGirolami, Traditions of American Constitutional Law, supra note 1, at 1161–68 (arguing that traditionalist constitutional interpretation looks to political practices of longstanding duration).

[27] Id. at 1168–70 (explaining how longstanding political practices enjoy a presumption of constitutional validity).

[28] See Address of Pope Francis to Members of the International Theological Commission (Dec. 6, 2023), https://www.vatican.va/content/francesco/en/speeches/2013/december/documents/papa-francesco_20131206_commissione-teologica.html [https://perma.cc/YU4D-35CL] (discussed in Rowland, supra note 4, at 368–70).

[29] Rowland, supra note 4, at 370.

[30] See generally William Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1 (2019) (identifying the elements of liquidation).

[31] See DeGirolami, Traditionalism Rising, supra note 1, at 25–34 (distinguishing traditionalism from liquidation).

The Very Idea of Tradition in the Law – Marc O. DeGirolami

Posted by JLPP on Nov 26, 2024 in Per Curiam

The Very Idea of Tradition in the Law

Marc O. DeGirolami*

It is a pleasure to be with you, on the occasion of this conference to honor the polymath and prince of the Church, St. John Henry Newman.

It is customary in lectures of this sort to make grand pronouncements to other scholars in one’s field. But I have a different audience in mind. I want to talk to students, friends, colleagues in other areas, and generally interested people, about tradition. To those who might find in tradition something appealing, enchanting, and attractive. I want to ask why so many Americans—and, increasingly, so many young Americans—are drawn to or even wish to “return” (here the “u” is sometimes spelled with the Latin “v”) to tradition. How can we account for the worth of tradition? How might we understand its persistent allure, in our lives and in our law today?

For the appeal to tradition has become something of a lingua franca in constitutional law. The Supreme Court seems to have discovered tradition’s many attractions. But tradition is a hard word. It gets lumped together with other things—history and tradition, for example; or text and tradition; or history, analogy, and tradition; or some other pastiche, with the result that tradition itself becomes obscured or is even erased. Yet if tradition really is a legal lingua franca—a language meant to bridge cultural difference or make communication possible for a scattered people—we will need to know a good deal more about what it might be.

Hence my subject, the very idea of tradition, which may be taken in two senses. First, as scandalized remonstration, as in, “the very idea he told me I look like I’ve been eating well,” or, for my students, “the very idea that I must suffer through this tedious lecture.” Second, as the earnest attempt to get at the truth of a matter. As in, “I want to get at the very idea of the reasonable person in criminal law, or the Christian doctrine of the Trinity, or the nature of love.”

Let me begin with the scandalous sense. To say in America today that we are bound by tradition, let alone improved or ennobled by it, is to flirt with taboo. Many of us want to believe, perhaps we really do believe, that we are entirely self-moved and self-motivated agents, unconstrained by our past and at perfect liberty to choose our own destinies:

It matters not how strait the gate,

How charged with punishments the scroll,

I am the master of my fate,

I am the captain of my soul.[1]

William Ernest Henley’s poem is something of a modern American anthem. It may then seem surprising, or even bizarre, to say that in our world, tradition exerts a powerful influence on us.

In this lecture, I will reflect on four matters. First, and to create the conditions for a favorable hearing, on tradition in ordinary life. Second, on tradition in law, and constitutional law especially. Third, on the value or worth of tradition, where I will somewhat tentatively and speculatively explore an analogy between constitutional law and Christianity. Fourth, and drawing insight from some of Cardinal Newman’s political writing, on the relationship of tradition and change.

I. Tradition in Life

To begin to see how tradition maintains claims on us, it may be helpful to begin with something commonplace and familiar: food. Here we will notice the very idea of tradition everywhere. Consider a well-known Italian restaurant in New York City (not a destination widely regarded as the beating heart of traditionality), Il Gattopardo—“The Leopard”—after the novel by the Sicilian nobleman, Giuseppe Tomasi di Lampedusa. Though the restaurant itself is just a generation old, it proclaims that it maintains “the tradition of Italian culture.” Quoting the book’s most famous line, the restaurant says, “If we want things to stay as they are, they will have to change.” Or, as Cardinal Newman said of an idea, “it changes with them to remain the same.” New York follows in Italy’s wake. There is a common Italian expression—“un ristorante tipico”—which means a restaurant of a locality or a region that specializes in the ancient recipes and methods that endure and that “typify” the best of the spirit of the people of that place. The “traditional” manner of dining.

Or reflect on a story a few years ago about an uncanny spike in demand for Chartreuse, a green liqueur made for centuries by Carthusian monks.[2] The recipe is known only to them, based on a secret manuscript given to them in 1605, which was itself derived, so the lore goes, from a medieval alchemist’s brew for an “elixir for long life.” During the COVID-19 years, when cocktail creation as well as collective thirstiness were trending upward, the monks stubbornly declined to expand production in response to these market pressures, as this would have interfered with their life of prayer and solitude. The spirit in consequence became even more desirable. The ancientry of the method, the mystery of the ingredients, the hand-crafted care with which the cordial is made, and its sheer endurance across the centuries—all of these seem somehow to hold Chartreuse’s aspiring drinkers spellbound. Even today, green Chartreuse remains as expensive and as difficult to acquire.

Many other similar stories could be told. But are these anecdotes about merely inessential matters? I do not think so. What could be more essential, more elemental, than how we eat and how we think about our food? It was the eminent ancien régime French lawyer and judge, the author of “The Physiology of Taste,” Jean Anthelme Brillat-Savarin, who once said, “tell me what you eat, and I will tell you who you are.”[3] In fact, one sees appeals to tradition in cuisine routinely. In cooking, in fine dining, in the fashioning of specialty foods and spirits, and in far less bespoke and more everyday settings: in the kitchen and the cellar and the dairy and the distillery and the little grocery and the bodega, to be traditional is often thought desirable and admirable. We see in this a longing for access and connection to prior worlds by respecting and perfecting the recipes of old, those that endure, those that are correct and pure and perfect.

Other areas of ordinary human endeavor are like this, too: singing and the playing of musical instruments, sports, and other games; auto mechanics and repair; sailing or seamanship; drawing and painting; carpentry; the composition of poetry; the practice of learning how to write well; even the learning of a language. To engage in these activities is to submit oneself to a body of past and enduring standards of excellence. Of quality, knowledge, and expertise.

II. Tradition in Law

Now, to my second theme—what about law? It is also this way. In the common law, the body of law determined (some say “discovered,” others say “made”) in judicial decisions over long spans of time, tradition is a constant and subterranean force in the form of “custom.” Custom serves as a way to construct and transmit the legal past, looking back at it from the present. A lawyer or a judge approaching the law generally intends to carry on some lasting way of thinking or reasoning or behaving into the present.

So, too, with judging and law practice, which are often described as “crafts.” Judge Learned Hand, himself known as a judicial craftsman, once even likened the qualities of a judge to those of a cook: “Into the composition of his dishes,” Hand said, “he adds so much of this or that element as will blend the whole into a compound, delectable or at any rate tolerable to the palates of his guests. The test of his success is the measure in which his craftsman’s skill meets with general acceptance.”[4]

Law practice is like this too. Lawyers learn the traditions and craft of letters, motions and memoranda, briefs, discovery documents, contracts, wills, trusts, legal codes, oral arguments, registration statements for the sale of securities, bits and scraps of official legal counsel, all the while applying what the late legal scholar, Frederick Schauer, has called distinctive “techniques of reasoning.”[5] These all have a shape and a form that must not deviate from the just-so formalities that have always made such artifacts what they are.

In constitutional law, traditions are made up of enduring political practices which are given presumptive authority as determinants of the law of the Constitution. Endurance is itself made up of the age of a practice, its longevity, and the density of its adoption across the nation. Traditions are ongoing sets of arguments representing the views of those situated within these practices, developing over time, concerning excellence in it. And what I have before called traditionalism in constitutional law gives primacy to enduring political practices for several reasons.

First, because constitutional justice—the justice referred to in the Preamble of the Constitution—is in part a collection of goods internal to the enduring practices that shape our constitutional law, and not merely the external result of those practices. Constitutional justice is often disclosed to us through lives of political practice, and in the social and political institutions that structure those practices. There are many features of constitutional justice that cannot be accessed or specified apart from the practices that determine our constitutional law. The complex of rules determining, for example, the just use of deadly self-defensive force with a firearm, over time and geographic space, or the laws and liberties that shape the proper exercise of legislative prayer, or the regulation of signage in the physical spaces where people live and work together—these are the traditions within which people acquire certain political excellences, or virtues, and through which those virtues are manifested in community.

This is not to say that constitutional justice is a matter of popular referendum or of mindless, repetitive behavior. It is not. But it is also not a matter of abstract thinking alone. Traditionalists in constitutional law believe that thinking and doing should be united. Thinking well about the worth of a political practice in constitutional law is bound up with engaging in the practice of constitutional government. And if thinking about the worth of the practice cannot be extricated from the practice itself, then getting a true grasp on the world depends upon our doing things in it—regulating behavior, governing, and participating politically—and not only thinking about the things that we or others do. Without that union, we fail to account for embodiment and purposiveness, for those features of actual thinkers who are always in particular situations.

Second, “We the People” are sovereign in our polity. The people are supposed to be, as the philosopher Matthew Crawford once put it, “masters of their own stuff.”[6] Shepherds and custodians of their own government, seeking political excellence as they see it. Why, then, do increasing numbers of Americans feel alienated and disaffected from their institutions of government and their Constitution? How is it that the deformation of our politics has made Americans particularly skeptical about their own Constitution and the possibility of excellence in constitutional governance?

The problem involves a central feature of republican agency: the people mature in their constitutional excellence through the experience of their practices, and they derive cognition of excellence from sources other than abstracted, universal, reflective reason. When constitutional theorists and judges refuse to incorporate or account for the people’s practices, they strip the people of that agency. They prop themselves up as the constitutional “scientific management” over the menial workers, as the meaning of constitutional work becomes more remote from the worker who does it. The people are in consequence alienated from their Constitution. They feel no affection for it. They come not to love it.

III. Tradition’s Worth: Theology & Constitutional Law Compared

But why? What is the value or the worth of tradition? I propose, in the spirit of this conference and yet with no small degree of trepidation, to reflect on this problem comparatively—in Christian theology and constitutional law.

Two rather sizable cautions are in order. First, I am not a theologian. There are theologians with us today, and I will do my best not to induce the excessive raising of their eyebrows. But I may not succeed, and this is a far more tentative and exploratory portion of my lecture. Second, the analogy between Christian theology and constitutional law will be highly imperfect. It will have limits. While both Christian and constitutional texts are venerable, and even venerated, Christian Scripture is meant to be prayed and believed. American Scripture, as the historian Pauline Maier once called the Declaration of Independence, is not meant to be prayed at all.[7] If it is meant to be believed, the beliefs are of a different order than the truths of Christianity. Yet with the decline of belief in the authority of Christian Scripture, secular scripture filled a void. For some, the Ten Commandments of the Bill of Rights may even substitute for the Ten Commandments of the Decalogue. A polity with no national church will find its civil religion somewhere.

Still, drawing on, yet disagreeing with, some observations by the Christian historian, Jaroslav Pelikan,[8] I want first to make the analogy. You may then apprise me of its infelicity. I am not the first to notice it. In 1959, Edward Corwin, one time McCormick Professor of Jurisprudence at Princeton, fired off this broadside: “The Reformation superseded an infallible Pope with an infallible Bible; the American Revolution replaced the sway of a king with that of a document.”[9] I hope to do a little bit better than that.

In both Christian theology and American constitutionalism, a communal tradition of belief and practice precedes a foundational, ancient, and, in some sense, inspired text. The community of Christians believed in Jesus Christ and practiced accordingly. We the People believed in and practiced certain arts of good government. In time, membership in the community was partly constituted by the text. The text was incorporated into the tradition. The Scriptures alone did not bring the Christian tradition into being; the tradition, in the Church, is the interpretive key to the Scriptures. The constitutional text did not bring the American people into being. We the People came before the Constitution, and we ordained and established it presupposing a tradition of excellence in government—a constitution in Aristotle’s sense, a polity or regime—that is the text’s interpretive key.

The text’s authoritative status is partly grounded on the assumption that the tradition of the text’s understanding may be applied by future practitioners to the considerably changed circumstances of later times, many of which the writers who originally wrote the document could not themselves envision. Enduring practices disclose the law and doctrine of the document and glue together the consecutive generations of the respective communities. The text itself elicits painstaking, highly elaborate, often byzantine interpretation and reinterpretation. But it does not specify how its meaning or law must be derived. A church council, or Roman Rota, or Sanhedrin, or Supreme Court, submits itself to this ancient authority to unravel the text’s meaning and law today.

These efforts result in doctrine which include techniques for coping with inner contradictions and change within a supposedly homogeneous body of learning. Indeed, it is to the development of doctrine, far more than to formal amendment, that the community looks for guidance as to change that nevertheless is supposed to preserve continuity.

We might ask several questions at this point. One is explanatory. How do we account for these similarities? Have constitutionalists consciously adopted the techniques that Christian expositors had used in previous centuries? Or have interpreters in these different spheres independently arrived at the same kinds of questions and techniques?

A second question might concern meaning. How is deriving meaning in this way possible? We say of some passage, a recondite parable in the Gospel of Matthew, or a difficult tract of St. Paul’s Letter to the Romans, or the Fourteenth Amendment’s Due Process Clause: “The people who wrote these words never imagined that they meant X, and the uninitiated reader today would be startled to learn that they mean X; and yet still, the passage means X.” But what does it mean to say that the text means X in those circumstances?

A third question is anthropological. What sort of human need does the drive to rely on tradition respond to? We need not do things in this fashion. Human beings could live their lives in a resolutely forward-looking, pragmatic way. Some constitutional theorists have even recommended that course.[10] But for some reason, Christians and citizens of the American constitutional republic have chosen another path: we live not (or not only) on the basis of what can be, but instead bonding ourselves to what has been. How do we make sense of this compulsive need to cherish the reconstructed past?

One of this trio only will be enough for today. Exegetical commonalities and the meaning of meaning, I will leave to the side. But I have something to say about people, and why they seem ineffably drawn to tradition.

One answer might be called the response from utility. Tradition serves our interests and needs because, through a process of the survival of the fittest, and in the sifting of “many minds,” and in the refining fires of the “test of time,” the best ideas and practices are the ones that win out or last. The value of tradition is that it cautions us to be epistemically humble about our present capacities. It punctures the pretensions of an overconfident rationalism to see here and now what is best for us.

A second answer concerns identity. We value Christian tradition and constitutional tradition because it is ours, because it is what constitutes us as individuals and communities. Tradition endows us with a stable sense of ourselves and this is necessary for us, psychologically and culturally. Without our traditions we are nobody, and we are nowhere. Our traditions give us existence, an existence we lose if we depart from them, at least too dramatically.

Here is a third answer that incorporates the other two while adding something of its own: the response from excellence. Traditions are the way human beings manifest an important part of what is excellent about us. This is, as far as I can make out, what those who find traditions self-evidently, magnetically compelling—in cuisine, architecture, sports, poetry, music, writing and the many uses of language, university life and learning, law, and, perhaps in part, Christianity—have in mind and are ineffably drawn toward. They are looking for a union with and a continuity of their own practices with something more than, or greater than, their individual lives, choices, and achievements. With something lasting and true.

In the Christian tradition, they are looking for the Logos. For the peace of God that surpasses all understanding. St. Paul tells us in the First Letter to the Corinthians: “that which I received from the Lord I passed on to you,” and he enjoins us in the Second Letter to Timothy to “guard the good deposit entrusted to you, guard it with the help of the Holy Spirit who lives in us.”[11] In the 5^th century, Pope Leo I put it this way: “A man who has not the most elementary understanding even of the creed itself can have learned nothing from the sacred texts of the New and Old Testaments . . . At least he should have listened carefully and accepted the common and undivided creed by which the whole body of the faithful confess.”[12] The Emperor Justinian, about a century later, said this: “This is the sound tradition that we preserve, which we have received from the holy fathers . . . This we would take as our companion during our life that we might be made citizens [of heaven].”[13] Or here, more than a millennium later, from Pope Paul VI’s Dogmatic Constitution, “Dei Verbum”: “Sacred tradition and Sacred Scripture form one sacred deposit of the word of God, committed to the Church. Holding fast to this deposit the entire holy people united with their shepherds remain always steadfast in the teaching of the Apostles, in the common life, in the breaking of the bread and in prayers, so that holding to, practicing, and professing the heritage of the faith, it becomes on the part of the bishops and faithful a single common effort.”[14]

What does tradition offer? Something to render a person’s own existence coherent and continuous with the lives of admired progenitors and hoped for progeny—to live, as Edmund Burke put it, in the presence of “canonised forefathers” and to walk amid “the gallery of portraits” of “illustrating ancestors,” but also, I would add, to take one’s own place in that mighty portico in the view of those that are to walk in it afterward.[15] True, traditions are useful to us and constitutive of our identity. But at their best, they are more than that. The notion of human excellence depends upon transcendent concepts of valuation that extend in the before- and after-time of a person’s own life.

Human beings value what they do on the generally tacit premise that human excellence existed before they were born and will exist long after they die. Without that assumption, they would think of achievement in human affairs very differently than they actually do, if they thought of it at all. For the “standards of achievement,” as Alasdair MacIntyre once put it, “within any craft . . . are justified historically,” and “what are actually produced as the best judgments or actions or objects so far are judged so because they stand in some determinate relationship” to the finally perfected work.[16]

I believe that this answer from human excellence also can explain what is now occurring in the invocation of tradition as a lingua franca in American constitutional law. Even as the very concept of constitutionalism is inherently preservative and custodial, connoting that which is legally essential and enduring, treatments of the meaning and legal content of the Constitution relentlessly slight the gravitational attractions of tradition. The notion of doing constitutional law well by doing what has been done before is not rejected; it is usually not thought of. But if one looks only at the changes and disruptions in our constitutional order, the result will be a failure to do justice to that order, which also tells a tale of tradition.

Note, again, an analogy that we might run backward to theology. Irenaeus and Origen in the second century AD appealed to the authority of the people as arbiters of Christian doctrine.[17] “We the People” as the foundation of the constitutional order finds its parallel in the theological notion of the sensus fidelium, which, as Cardinal Newman put it, testifies to the apostolic tradition, and affirms “the role of the laity as bearers of authentic Catholic tradition.”[18] Both domains have also generated a thick scholarly incrustation that has created a great escarpment between the realms of the academy and those of common practice. The result of this “academification” is the emergence of two normative systems: one contained in the tradition; the other found in the creeds—theological and constitutional—of the professors. But not of the Church, and not of the People.

IV. Tradition & Change

A final matter: what about change? What about bad traditions? A common criticism of traditionalism, in constitutional law and in general, is that, as Chief Justice Roberts recently put it, it traps what exists “in amber,” or that it is brittle and incapable of development.[19] We want growth, to be sure, but of the right kind. We want our children to grow strong and well. But cancers grow, too.

It is certainly true that not all traditions are worth preserving. Slavery might be described as an enduring practice in this country. Segregation of the races in railway cars and schools might as well. Some of these practices were expressly supported by the Court on the basis that they comported with the traditions of the people. We have come to see that these practices should be rejected. And we have rightly done so by formal amendment or other mechanism of change. Does this mean that our traditions must fail us?

I would not say so. What it shows is that we are fallible, and that we should therefore expect some fallibility in our traditions of constitutional law. And not the kind of fallibility that can be interpreted away through one more clever argument about what the text really means, or what a disembodied principle that has to this point been misunderstood actually demands. To see the fallibility of some of our traditions is not to repudiate all of them, and it is a mistake, or else a piece of cynicism, to take our worst moments as a kind of warped, house-of-mirrors reflection of our constitutional polity. Indeed, the capacity to see the fallibility in some of our traditions presupposes that we understand what they are. Especially if the people are to cast off or abandon a tradition, they will not know why they do so unless they first have understood it. Practice and cognition go together here, too.

Here, again, we might recur to a theological analogue. We will be hearing from distinguished guests today about Cardinal Newman’s 7 tests for, or as he later called them, notes on, distinguishing authentic developments of doctrine from corruptions, in his “Essay on the Development of Christian Doctrine.” In fact, Newman several times expressly analogizes between theology and jurisprudence.

In my estimation, Newman’s notes are valuable, but taken alone, they are more in the nature of rules of thumb, or what he later called “tokens,” than rules. Consider, for example, the second note: preservation of principle. Newman writes that because “doctrines expand variously according to the mind, individual or social, into which they are received . . . the life of doctrines may be said to consist in the law or principle which they embody.” Newman may be right about this. Probably he is.

But there is a difficulty that will confront anyone who tries to use Newman’s notes as rules for how tradition should, or should not, develop. The notes are conclusions about what to argue about rather than rules that could help resolve such arguments. Preservation of principle is a familiar concept in constitutional law, but constitutional lawyers will understand what asserting it can and cannot do. For any live constitutional dispute—affirmative action, sexual liberty, federalism, religious liberty, and so on—it is of only modest help to say that we should adopt an interpretation that is continuous with principles discernible in the text and the tradition. Most know that already. Most take it for granted. The dispute will be about which among the clashing principles extractable from the text and tradition best succeeds in maintaining such continuity.

Can we nevertheless mine Cardinal Newman’s work for some assistance? I believe so, if we look to some of his more political and legal or constitutional writing. He takes a view of development as to these questions that highlights the centrality of enduring political practice.

Before getting to the notes, Newman describes what he calls “political change,” of which he thinks “changes in the Constitution” a variety. In these, “often the intellectual process is detached from the practical, and posterior to it . . . [A] new theory is needed for the constitutional lawyer, in order to reconcile the existing political state of things with the just claims of” the state.[20] For Newman, the pressure for legal change comes from practice first, and only later is the ratiocinated theory devised to account for it.

Legal change Newman also describes as “historical change, . . . the gradual formation of opinion concerning persons, facts, and events . . . Some authoritative accounts die away; others gain a footing, and are ultimately received as truths. Courts of law, Parliamentary proceedings . . . are in this day the instruments of such development. Accordingly, the Poet makes Truth the daughter of Time.”[21] Again, we see Newman—here quoting Francis Bacon, the outstanding 16^th century English lawyer, judge, and scholar—discussing legal change as both motivating and motivated by custom and popular acceptance or ratification.

But Newman’s most acute observations on law appear in a series of eight letters, written under the pseudonym “Catholicus,” during the Crimean War, concerning English constitutionalism. These are collected under the title, “Who Is To Blame?”

Here is a bit from the third letter: “It is, then, no paradox to say that every State has in some sense a Constitution; that is, a set of traditions, depending, not on formal enactment, but on national acceptance, in one way or other restrictive of the ruler’s power; though in one country more scientifically developed than another, or more distinctly recognized, or more skilfully and fully adapted to their end.”[22]

Or this, from the seventh letter:

Newman’s conception of legal development depends upon his view that within the ambit of reason permitted by the natural law, the political and historical problems of constitutionalism lie within the space of what St. Thomas Aquinas called determinatio—the specification or disclosure of the political ends of justice, pursued through the enduring customs and practices of the people.[24] That is, through what in our constitutional law is tradition.

*                 *                 *

In the last of these letters, Newman draws a parallel between constitutions of healthy physical bodies and healthy polities. I take some small inspiration that his central metaphor is, to end where I began, about food: “as in our own persons, one by one, we consult for our particular constitution of mind and body, and avoid efforts and aims, modes of exercise and diet, which are unsuitable to it, so in like manner those who appreciate the British Constitution aright will show their satisfaction at what it does well, resignation as to what it cannot do, and prudence in steering clear of those problems which are difficult or dangerous in respect to it.”[25]

There are those who might say that for us, in America today, this is inapt and ill-suited. After all, we have a written document. We are exceptional in our constitutionalism, having made the world anew.

But Newman had the greater insight. Constitutions are meant to sustain. They are meant to endure. They are meant to assist human bodies and their bodies politic in becoming as excellent as they can be. It is in the very idea of tradition, whether of life or of law, that we learn how to be good.

* St. John Henry Newman Professor of Law and Co-Director, Center for Law and the Human Person at Columbus School of Law. This lecture was delivered as a Chair Lecture at a conference on “St. John Henry Newman, Tradition, and Law,” hosted by the Center for Law & the Human Person at The Catholic University of America, Columbus School of Law, on October 18, 2024. With gratitude to my friends, Professors Joel Alicea, Elizabeth Kirk, Michael Moreland, Mark Movsesian, Jeffrey Pojanowski, and Chad Squitieri, for penetrating criticisms and advice. Those portions with which they still may not agree, they nevertheless greatly improved.

[1] William Ernest Henley, Invictus, in Poems 83–84 (1920), https://www.poetryfoundation.org/poems/51642/invictus [https://perma.cc/6AF9-4L4L].

[2] Becky Cooper, Why Is Chartreuse So Hard to Find Right Now? Ask the Monks Who Make It, N.Y. Times (Apr. 14, 2023), https://www.nytimes.com/2023/04/14/dining/drinks/chartreuse-shortage.html [https://perma.cc/C9YT-9WF].

[3] Jean Anthelme Brillat-Savarin, The Physiology of Taste 25 (1825).

[4] Learned Hand, The Nature of the Judicial Process by Benjamin N. Cardozo, 35 Harv. L. Rev. 479, 479 (1922) (reviewing the same).

[5] Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning, at xi (2009).

[6] Matthew B. Crawford, Shopclass as Soulcraft: An Inquiry Into the Value of Work 54 (2009).

[7] See Pauline Maier, American Scripture: Making the Declaration of Independence (1997).

[8] See Jaroslav Pelikan, The Vindication of Tradition (1984); Jaroslav Pelikan, Interpreting the Bible and the Constitution (2004).

[9] Edward Corwin, The ‘Higher Law’ Background of American Constitutional Law 1 (1955).

[10] See, e.g., Richard Posner, Law, Pragmatism, and Democracy (2003).

[11] 1 Corinthians 15:3; 2 Timothy 1:15.

[12] Letter from Pope Leo I to Flavian of Constantinople, Tome of Pope Leo I (449), https://www.newadvent.org/fathers/3604028.htm [https://perma.cc/9RSD-WM4U].

[13] Justinian, Edict on the True Faith, Volume 3 (551).

[14] Pope Paul VI, Dogmatic Constitution on Divine Revelation Dei Verbum, art. 10 (Nov. 18, 1965), https://www.vatican.va/archive/hist_councils/ii_vatican_council/documents/vat-ii_const_19651118_dei-verbum_en.html [https://perma.cc/8JJH-ABNF].

[15] Edmund Burke, Reflections on the Revolution in France (1790).

[16] Alasdair MacIntyre, Three Rival Versions of Moral Inquiry: Encyclopaedia, Genealogy, and Tradition 64 (1988).

[17] Pelikan, supra note 8 at 25–26 (quoting Origen and Irenaeus).

[18] John Henry Newman, On Consulting the Faithful in Matters of Doctrine (1858).

[19] United States v. Rahimi, 144 S. Ct. 1889 (2024).

[20] Newman, supra note 18 at 34–36.

[21] Id. at 38. Newman quotes “Crabbe’s Tales,” a series of poems by the Reverend George Crabbe about late eighteenth and early nineteenth century provincial life in England.

[22]  Letter 3 from John Henry Newman to the Editor of the Catholic Standard, Constitutional Principles and Their Varieties, https://www.newmanreader.org/works/arguments/blame/letter3.html [https://perma.cc/MC4X-RNRP].

[23] Letter 7 from John Henry Newman to the Editor of the Catholic Standard,  English Jealousy of Law Courts, https://www.newmanreader.org/works/arguments/blame/letter7.html [https://perma.cc/V3BL-TYX6].

[24] For acute remarks along these lines, see Adrian Vermeule, The Chief Justice and the Catholic Bishops, The New Digest (June 25, 2024), https://thenewdigest.substack.com/p/the-chief-justice-and-the-catholic [https://perma.cc/5CR3-HYSD].

[25] Letter 8 from John Henry Newman to the Editor of the Catholic Standard, English Jealousy of Church and Army, https://www.newmanreader.org/works/arguments/blame/letter8.html [https://perma.cc/YG3C-V4C9].