Traditionalism Rising, Part III: The "Level of Generality" Problem
Document Type
Blog Post
Publication Title
Reason - The Volokh Conspiracy
Publication Date
9-8-2022
Abstract
(Excerpt)
One important challenge to traditionalism involves what some have termed the "level of generality" problem. Mark Tushnet, in addressing a previous article of mine on traditionalism, observed:
Referring to the Bladensburg cross case, DeGirolami criticizes Justice Breyer for "drawing" the practice with reference solely to the very cross at issue…But, of course, that criticism doesn't address the possibility that we could characterize the cross a little more generally—as a token of a practice involving crosses as symbols of wartime sacrifice in connection with a war that the wider culture immediately (recall the citation of "In Flanders Field") associated with crosses, for example—without moving to the more general "war memorials" or (even) "memorials of sacrifice" or (even) … well, you get the point.
Traditionalists do face the issue of how to decide on the determinants of the tradition against which they compare the case they are considering for inclusion within or exclusion from the tradition. Drawing a practice too narrowly will stunt the tradition's interpretive power in future cases. Drawing it too broadly will dilute the tradition to the point where the method begins to resemble something else altogether—often something like principle-driven adjudication. Then there is the associated problem of manipulability. If the fact of judicial narrowing and broadening of traditions introduces too much uncertainty in outcomes, then it may begin to appear that the method cannot really control outcomes with any predictability. Traditionalism might even be accused of being empty.
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Originally published at: https://reason.com/volokh/2022/09/08/traditionalism-rising-part-iii-the-level-of-generality-problem/