Traditionalism Rising, Part III: The “Level of Generality” Problem
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.
Traditionalists have some responses to these points. First, traditionalism may contain some built-in uncertainty, but so do virtually all interpretive methods anybody finds attractive. Principled interpretation (approaches that apply principles of “liberty” or “equality” or “secularism” and so on) involves a healthy dose of uncertainty as judges debate the scope of the principle at issue. To say nothing of pragmatic, balancing, or cost/benefit approaches, whose defining feature is the unpredictability that inheres in particularistic judgment. And the same is true for originalism, in which “construction” of meaning (for originalists that endorse construction) in the many crucial situations where text i
Article from Reason.com