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Memo to Judge Posner: Tradition Proves A Lot
A couple weeks ago, the Seventh Circuit Court of Appeals struck down statutes in Indiana and Wisconsin that limited marriage to one man and one woman. It’s pretty much “same stuff, different day,” and I’m not much interested in substance of the decision. The way things are going, national same-sex marriage is all but inevitable, though it’s troubling that the issue should be resolved in federal court. As I read the Constitution, this is an archetypal issue for the states, but that’s probably a losing cause (at least in the short term) now that unelected judges with a clear agenda have asserted their powers as Philosopher Kings.
However, the Court did a great deal more than just overturn the collective wisdom of the electorate in Indiana and Wisconsin. The Court basically eliminated “tradition” as a restraint on power and, by extension, engaged in a preemptive strike against those who think the past is a road map to the present and the future. I’d go so far as to say that the Court has initiated a war against humanity.
Liberals, and some libertarians, are gaga over the rough treatment the court gave to the Assistant Attorney General who argued for the restriction. Columnist Steve Chapman laughed it up in a column at Reason, but this really isn’t a laughing matter.
You can listen to a number of clips of Judge Richard Posner speaking from the bench here, but the most important clip is the one below where the judge asks “Can tradition be a reason for anything?:
It appears Posner — oblivious to the fact that his job and his power are almost entirely grounded in tradition without which he would be impotent– suffers from a severe irony deficiency.
Tradition is not, as Posner implies, just a bunch of old stuff. Tradition is the foundation of rational conduct, and the means through which mankind passes on the social capital which has accumulated through the experience of thousands of generations that have already confronted the vicissitudes of life. As T. S. Eliot noted in the context of poetry: “he is not likely to know what is to be done unless he lives in what is not merely present, but the present moment of the past… not of what is dead, but what is already living.” (emphasis added).
But for a judge to say that tradition “proves nothing” is beyond irony, it is meshuga.
I can’t prove to Posner that addressing him as “Your honor” is scientifically valid, nor offer a study to show the benefits of judicial robes. But I have little doubt that justice would suffer should lawyers open with the phrase “Hey Dick, how’s tricks, how’s tricks?”. Or should judges shed their traditional black robes in favor of hot pants and rainbow tank tops?
There can be no doubt that the loss of essential legal traditions would destroy the courts. The doctrine of stare decisis, for example, requires courts to abide by prior decisions and the rulings of higher courts. The doctrine emerged from centuries of common law jurisprudence, a legal framework steeped in respect for tradition.
It’s nearly impossible to define tradition in rationalist language. Burke explained that traditions — though he used the word “prejudice” synonymously — are “cherished because they are prejudices and the longer they have lasted, and the more generally they prevail, the more we cherish them.”
Why? Because:
We are afraid to put men to live and trade each on his own private stock of reason: because we suspect that the stock in each man is small, and that individuals would do better to avail themselves of the general bank and capital of nations and of ages.
Critics of tradition insist, of course, that those who adhere to past wisdom are cranky old know-nothings. In a sense they’re right. A traditionalist will agree that he knows only a little: that is his greatest virtue. Traditionalists are pessimistic by nature, and cautious out of prudence. Adam Smith said “it is acquired wisdom and experience that teach incredulity, and they very seldom teach it enough.” For this reason, a traditionalist is humble because he knows that unrestrained novelty invites disaster.
None of which is to say that traditionalists are just sticks in the mud. Burke sided with the American colonies before the Revolution, and worked to bring peace between them, Parliament, and the Crown. But his position was firmly anchored in tradition. He defended the colonies because the colonists were Englishmen who were owed their traditional rights. As he put it, the colonists “are not only devoted to liberty, but to liberty according to English ideas and on English principles.” More simply, they insisted on English traditions.
In the face of the superstitions of the eager innovator, tradition should be seen for what it provides: knowledge. The world, and every nation that ever sat upon it, generates social capital, and tradition is the trustee’s tool through which he protects the corpus, and thereby insures the continuity which is indispensable to ordered living. In Jonah Goldberg’s phrasing “Social capital has a compound interest rate all its own.”
Goldberg also notes that “old things also attract barnacles, hard to remove and easy to confuse with the structure itself.” Those barnacles must be removed, and sometimes the hull will be damaged. But it’s best to understand the shape and substance of the ship before you light up a torch to remove those “useless” things.
Posner should think again.
Published in General
Excellent post.
Morning Mike,
How does the modern jurist determine which traditions are important and which are trivial? Also how does the modern jurist account for the choices of men (the legal and illegal choices)?
And what happens when… same sex marriage becomes “TRADITION” you moron – not you Mike but, oh this is so easy, Judge Poser. Since we no longer see much in tradition, no use being honorable to deceitful men in black robs.
Posner is right: tradition isn’t proof. It is, however, evidence.
Beautifully put, Mike. I can’t improve on what you’ve said, right now.
The short hand argument that undergirds tradition is, “If it ain’t broke, don’t fix it.”
The reason tradition is a valid argument is that complicated and delicate balances between competing interests and needs between members of a society, and the interests of individuals vs. what’s best for keeping society safe, prosperous, and stable as a whole, are often established by millions of interactions, fights, compromises and inventions that are too numerous, too hidden, too interconnected in non-obvious ways for any person to be able to really grasp. So, as long as the balance produces a positive result, we respect that by not mucking with things unnecessarily.
The cascade of unintended and ruinous consequences of picking apart traditions like some game of Jenga is so manifestly stupid it’s hard to imagine how those who like to play this game get in these places of authority, especially when these lofty positions they enjoy sit atop this giant tower they are trying to “rebuild” underneath themselves.
This is the function of republican democracy. It is the people who determine the value of their traditions, for both good and ill. Posner has all the reason in the world to denigrate traditions. Traditions are an impediment to his honor’s ego.
According to this source, Posner said,
I wonder whether Posner really is as neutral toward tradition as his tone here suggests, but he does recognize there are good traditions.
What counts as essential traditions, though? Posner obviously believes there are some.
If I can make an observation based on my admittedly limited exposure to Posner’s work, Posner actually seems pretty keen on the tradition of having kids raised by two married parents, rather than by single mothers or the foster system. That explains both his advocacy for freeing up infant adoption (so that babies can move from the bad environment of being raised by single teen moms or even no one in particular in the foster system to the good environment of being raised by married couples) and some of his advocacy for recognizing SSM, as the source I cited above also mentions.
But the point is that we would need less foster homes and have less single mothers is people didn’t mess with tradition so much. Posner’s advocacy is in service of innovative solutions for problems wrought by abandoning tradition willy-nilly to begin with.
This is nothing but hubris on the judges part. He knows better than all the others that came before him. All the great philosophers, and moral giants, for thousands of years do not have the moral and legal judgment of this guy.
But this seems to be indicative of the presentism of our culture. Because we have a greater knowledge of technology and medicine, therefore we know much more than the rubes who came before us.
Mike,
Could the governor of a state respond to the judge’s ruling in a similar fashion? Could the governor say that the tradition of respecting the rulings of judges has in these current circumstances ceased to apply. If one layer of the government resisted another layer would that be an effective way to temper the arbitrary use of power by the judiciary?
When a lovely flame dies, smoke gets in your eyes. ‘Democracy of the dead’ is dead, and my eyes water.
But in the law, proof and evidence are separate, though intertwined. “Proof” speaks more to legal standards and burdens. Evidence is what is offered to meet the burden of proof. This is not a clear distinction, however, as the two words are often confused in advocacy. See my comment #13 on the concept of presumptions. A presumption is created in law, and in the normal course of things the evidence must establish that the presumption is unwarranted. In Posner’s scenario, and this is evident to me in the actual decision, the burden is shifted to the defender of the presumption, which turns the argument on its head.
I don’t have the space to fully brief the decision (would probably bore people silly anyway), but through the use of legal principles of at least questionable legitimacy, Posner shifts the burden.
But, again, that’s a different post. Here I’m concerned with his cavalier approach to tradition.
Jim:
That’s a question that has been debated for centuries, and was at the heart of Hamilton’s argument in Federalist 74 (I think) where he argued that the courts would be the least dangerous branch because they would need the executive branch to enforce decisions, and the Congress to provide the means. I’m not being clear here, and have to read #74 again, but basically the courts, though independent, nonetheless need the Pres to put decisions ito action.
In the early days this didn’t always work out. I don’t remember the case, but Andrew Jackson, when considering enforcement, said “Justice Marshall has made his decision, now let him send in his army to enforce it.”
A similar issue arose in Alabama in the 60s when George Wallace, the then Governor, refused to respect Fed Ct rulings on integration and stood at the entrance to the university an said “Segregation now…and forever.” The National Guard of Alabama had to force the issue. I think it was Truman, nationalized the Guard, and Johnson who sent the Guard in (I may have my history confused). This was an explosive situation since Wallace, too, had authority over the Guard, but he was trumped. I think both positions have merit under the Constitution, but for the most part the states have been losing this battle for years and in many typres of cases.This because of the doctrine of pre-emption which arises when Federal Law is controlling.
This is the old state’s rights controversy, which continues now in SSM. I noted in the Addendum to the OP that a La. Fed Court has ruled against SSM, and I’ve only skimmed the decision, but it appears the Judge took a states rights position.
I’ll try to summarize his argument after I look more closely at the decision.
MFR:
Essential traditions cannot generally be known a priori, but must be identified, worked out, and applied over time. The Common Law is the best example I know of for working things out. Unfortunately, the CL is dying because of several factors:
1. The courts are paying less and less deference to it;
2. Legislature have stepped in to codify many CL principles, and in many ways have messed things up. Legislation just cannot provide the breadth and depth which exists in CL.
3. The CL is, in my opinion, increasingly undermined by Constitutional Law.
There are many other problems, which I might someday discuss in an OP–but it would be very long, and perhaps very dull:-)
Thanks for this Jim. I think you are exactly right and this is an excellent addition to the OP.
In response to Posner’s predictable comparison of restrictions on SSM to anti-miscegenation laws, the response should be that those laws changed the traditional definition of marriage to make it narrower, excluding unions that would previously have been allowed, based on criteria irrelevant to the meaning of marriage. SSM also changes the traditional definition, but in the opposite direction, widening the definition to include unions never before allowed, also based on criteria irrelevant to the meaning of marriage. If we may, or must, disallow the one change to the definition of marriage, then we may certainly do the same for the other. Posner probably knows all this. He’s just scared to rule the other way.
You’re right Bob. The miscegenation argument is a read herring. You summed it up beautifully. You should be arguing these cases before the courts.
While I liked his conclusion, I find it hard to deny that you’re on to something here. I do not believe “tradition” is the be all and end all of an answer to questions like these, and I don’t think it should have been in this case, but to simply dismiss it as easily as Judge Posner did was a bit of a jolt even for me. As a lawyer who practices in the Seventh Circuit, however, I can tell you that Judge Posner has become sort of special in his later years. He often sounds like a philosopher king even in run of the mill commercial cases. He can be pretty — how best to put this? — “unconstrained” whenever he puts pen to paper. His favorite trick is using the internet (or his own intuition) to find “facts” which then go into his opinions as though they were part of the record. We can probably quibble about whether that’s wise or fair or not, or how good he is at it, but it’s certainly unconventional judging. I saw him speak at a bar event not long ago where he not only defended the practice, but chastised other judges for not having taken it up. I think he’s just getting older and has life tenure and has given up aspirations for SCOTUS. Oh, and he’s been told he’s the smartest man in the room for a little too long.
Posner is well known for his observation that the Common Law tends to be economically efficient. There are differing theories as to why this is so, and which theory a judge espouses might affect how he judges. As Posner believes efficiency to be a good thing, I seriously doubt he’s trying to undermine Common Law. Rather, it’s more likely that he sees himself carrying on the Common Law tradition.
I don’t know if you’d bristle at the idea of applying economic analysis to law (you shouldn’t – it’s interesting) or if it’s possible for you to believe that a man whom you perceive as doing the greatest violence to tradition might be attempting to uphold tradition in his own way, but it’s something to think about.
I think you misunderstand. Both Loving and Bogan expanded marriage rights to couples previously not permitted to marry. You can argue that there are other meaningful distinctions between laws prohibiting marriage based on race and laws prohibiting marriage based on sexual orientation if you want, but you can’t really deny that in both cases, striking down those laws opened up new marriage opportunities that hadn’t existed previously.
None of which is to say Posner can’t be arrogant or condescending or even wrong. A particular judge that believes that judges acting in aggregate over time within the Common Law tradition tend to make efficient law can’t guarantee that, just because of his personal admiration for efficiency and Common Law, his decisions will be especially efficient. Efficiency is discovered more easily than it is willed.
Brilliant post. Modern law school education, by the way, provides for almost zero training in the role of Tradition. If you’re lucky, you decide to be one of the 10 students in a History of the Common Law seminar (or an originalism equivalent) . . . otherwise, at least in my experience, it is predominantly Law & Economics vs. Liberal policy-oriented jurisprudence. It is also worth noting that Law & Economics now dominates the Federalist Society . . .
Yes, in law, proof and evidence are intertwined, since proof isn’t deduced (as it is in mathematics), but is achieved to a reasonable degree of certainty when the evidence is weighty enough.
The evidence of tradition may sometimes be weighty enough to meet the burden of proof, and other times may not be. Because tradition! is a good argument for many things, but not everything.
I have no objection to economic analysis, but it must be fitted into the over all timber of jurisprudence and not treated as the supreme technique in legal analysis.
Why does tradition bear the burden of proof? The status quo always enjoys the presumption , and it is up to those who would change things to prove the benefit of doing so. The CL has long required that the government prove a criminal defendant guilty beyond a reasonable doubt. That is a tradition in the law worked out over centuries. Why should we respect that tradition. An argument can be made that it would be more efficient to impose the burden on the defendant to prove his innocence. We would consider that unjust, but why? I answer that over centuries, and under the influence of many historical predicates (Christianity/the Greeks and many more) we have reached the conclusion that defendants are innocent until proven guilty. Should we throw that overboard if “science” proves that, from a rationalist point of view, society would be better off imposing the burden on the accused?
What if it’s not about tradition-versus-science or tradition-versus-rationalism but about competing traditions? (Science and rationalism are both traditions of their own, incidentally.)
For example, innocent-until-proven guilty is one tradition. Thou-shalt-not-cause-a-scandal-by-indulging-in-behavior-that-while-innocent-could-easily-be-interpreted-as-guilty-and-lead-others-into-sin is another tradition. Sometimes we can expect these traditions to conflict.
Suppose adultery were still punishable by law (as I believe it should be, even if the punishment isn’t a large one). A married woman who spends the night at another man’s house causes a scandal on the one hand (people love imagining other people getting up to sexual mischief behind closed doors) but on the other hand should be considered innocent until proven guilty.
Which tradition wins out in this case? “Obviously” the innocent-until-proven-guilty one should, but that doesn’t mean the thou-shalt-not-cause-a-scandal tradition isn’t also a tradition with weight of its own.
Why can’t they be compatable? You could have some form of penalty for giving the appearance of scandal and much more severe one if actual adultery were proven.