Today’s Supreme Court is committed to originalism—the idea that the Constitution’s meaning is fixed at ratification. But it often rests decisions on the post-ratification practices of other actors—Presidents, Congresses, or states. Call this method “living traditionalism”: “traditionalist” because it looks to political traditions, and “living” because the traditions postdate ratification. The method is ubiquitous but undertheorized, in part because its distinctness from “liquidation”—a variant of traditionalism that is indeed consistent with originalism, but that rarely drives any cases—has not been understood.
This Article offers the first comprehensive analysis of the Court’s living traditionalism, which includes scores of cases spanning every subject and Justices of every stripe. Next, the Article identifies a fundamental but previously unrecognized tension in the method itself: If the Court gives living-traditionalist cases full weight as precedent, it defeats the reasons for using the method at all. Put another way, it is incoherent to treat political practices as a ratchet: capable of moving law in one direction (e.g., against a right in 2022) but not the other (in favor of the right later on). Yet the Court is at risk of doing that, making constitutional law turn on accidents of history: whatever practices happened to exist when the Court first addressed an issue. Finally, the Article proposes solutions to this predicament. Where the Court does not simply retreat from living traditionalism, it should write living-traditionalist rulings so that they expire when practices change, or else modify stare decisis to make these cases easier to overturn. These solutions would have to be paired with a resolve on the part of political actors to manifest any rejection of practice-based holdings in ways that courts could heed when the issue next arose in litigation. I review several “hard” and “soft” law means of doing so that the case law itself invests with constitutional significance. By these means, politics could shape sundry individual-rights and separation-of-powers doctrines. Absent such reforms, the Court’s application of living traditionalism will prove increasingly at odds with the democratic and other rationales for using the method at all.
