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Tradition in Constitutional Adjudication
Jiménez, Felipe
Jiménez, Felipe
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Abstract
The Supreme Court has increasingly relied on the notion of tradition to decide questions about constitutional rights. This approach is not implausible. Constitutional adjudication should be attentive to the history of social practices. But traditions are rarely fixed. They are open-ended, constantly evolving, and subject to normative contestation. Judges, moreover, are part of a distinctive legal tradition with its own standards and commitments. Thus, the idea of tradition should not lead to the inexorable authority of past social practices over contemporary adjudication. It should instead lead to a recognition of the space for normative judgment in the context of constitutional rights adjudication.
We should be troubled by the power of judges to make normative judgments about contested social practices. But we should address that concern directly. An emphasis on the authority of legal reasons and on the role of legal expertise in constraining and guiding judicial decision-making responds to that concern. Moreover, it does so without falling into the Court’s denial of interpretive freedom and its embrace of the illusory constraint of history and tradition.