Law and Tradition (herein of Iowa, Coke, Hale, and Selden)
In the Iowa Supreme Court’s opinion declaring traditional marriage unconstitutional, the justices dealt with the claim that the law was justified because it protected the integrity of the tradition of heterosexual marriage. The opinion states:
A specific tradition sought to be maintained cannot be an important governmental objective for equal protection purposes, however, when the tradition is nothing more than the historical classification currently expressed in the statute being challenged. When a certain tradition is used as both the governmental objective and the classification to further that objective, the equal protection analysis is transformed into the circular question of whether the classification accomplishes the governmental objective, which objective is to maintain the classification.
As presented by the Court (and for all I know as presented by the attorneys defending the law), the argument sounds circular and absurd. As a technical matter the court was applying intermediate scrutiny, but as presented by the Court the appeal to tradition would seem to fail even a rational basis test.
To anyone with a familiarity with the history of the common law, the notion that the appeal to tradition is circular or vacuous is striking. The classical common law theorists of the seventeenth century – Coke, Hale, and Selden – thought that tradition was the primary justification for the law’s authority. Independent of the particular issue of same-sex marriage, the Iowa Supreme Court’s opinion shows how far our legal thinking has traveled.
It is, of course, always easy to dismiss the strange thoughts of the past as so much benighted nonsense, and to look at the seventeenth century appeal to tradition as a bit of rhetorical clap trap and nothing more. Certainly, there was more than a little bit of fiction in the appeal to immemorial custom. The appeal to tradition, however, was not without its reasons.
There are, it seems to me, at least three reasons for adhering to tradition because it is tradition.
One argument would be that the long continuation of a tradition indicates that the tradition commands widespread support. On one hand, law that follows tradition is thus more legitimate because it enjoys widespread consent, a consent evidenced not by the formal procedures of democratic institution but through the organic growth of social custom. On the other hand, as a practical matter setting the law in violent opposition to tradition threatens legal stability by cutting the law off from a deep source of intrinsic legitimacy.
The second argument is closely related to the first, and notes that traditional practices create expectations. The law ought not to upset those expectations. Doing so undermines one of the primary purposes of the rule of law, namely the creation of a stable set of expectations in which people can work out their lives free from the fear of violent shifts in how the state makes its power felt.
The third argument is that advanced by Burke. It rests on a skepticism about reason’s ability to create effective social practices from a priori principles. Burke, of course, was trained as a common lawyer in a day when the curriculum consisted mainly of painfully digesting Coke On Littleton. For him the fact that one could not articulate a simple and rational justification for an ancient practice was no reason for abandoning it. The process of organic social growth, experimentation, and survival had an inarticulate wisdom of its own, and it was a shallow hubris to suppose that we could dispose of it with a few syllogisms. The argument, of course, is difficult and dangerous, because sometimes tradition represents precisely the kind of viciousness condemned by the philosophes he so scorned. Or, as the Iowa Supreme Court put it:
[The appeal to tradition] can allow discrimination to become acceptable as tradition and helps to explain how discrimination can exist for such a long time. If a simple showing that discrimination is traditional satisfies equal protection, previous successful equal protection challenges of invidious racial and gender classifications would have failed.
And yet Burke’s argument is not without merit. It certainly counsels against the glib dismissal of tradition. After all, Burke’s prediction that the French Revolution – with its contempt of tradition — would produce a cartload of headless corpses and a tyrant has proved one of the more prescient moments in political philosophy.
At the end of the day, I think that the appeal tradition deserves a bit more respect than the Iowa Court gave it. It is not a bit of logically circular claptrap. Rather, the appeal to tradition is one of the well-springs from which the common law came and the memory of man runneth not to the contrary.