Traditionalism Rising, Part IV: The Problem of Justification
Reason - The Volokh Conspiracy
What justifies reliance on enduring practices in constitutional law? It is possible to defend traditionalism on a descriptive plane, or on the ground that it reflects a democratic-populist perspective appropriate in the United States. I have made those arguments elsewhere, but in this paper, I respond to a familiar criticism that tradition has no moral force at all: doing the same thing we've always done gives us no reasons, so the objection goes, to do the same thing today.