Friday, June 23, 2006

The roots of tradition

The Raleigh Christian group Called2Action, which last year packed Town Hall to urge us to open our "hearts and minds . . . to hearing the Truth" about gay rights, is lobbying the General Assembly to require the daily recital of the Pledge of Allegiance in public schools. Ed Cone has noticed the interesting discussion started by "Anglico" at BlueNC.

Anglico uses a great cartoon to show that this issue asks us to think about what conservatives mean by "tradition." (Click to enlarge.)

traditional pledge

Justice Scalia is a big one for tradition. He is also an originalist, which would seem to put him in conflict with himself, but in his own mind he has the two ideas knitted together:

If the text is ambiguous, yielding several conflicting interpretations, Scalia turns to the specific legal tradition flowing from that text -- to "what it meant to the society that adopted it." "Text and tradition" is a phrase that fills Justice Scalia's opinions. Judges are to be governed only by the "text and tradition of the Constitution," not by their "intellectual, moral, and personal perceptions."

But as Jack Balkin has pointed out recently ("Deconstruction's Legal Career," Cardozo Law Review, November 2005), as interpretive traditions go, "tradition" can be as slippery as anything else.

It turns out that "tradition" comes from the same word as "betrayal." Both involve a handing over. Claiming to speak in the name of tradition can also be a kind of betrayal in several different ways. First, traditions are often contested. Hewing to one particular vision of tradition obliterates other interpretations of the past and other alternatives for the future. Tradition never speaks with one voice, although, to be sure, persons of particular predilections may hear only one. In this way, a tradition can be a kind of extradition, banishing other perspectives and handing them over to their enemies, so to speak. Second, to respect tradition is also to betray, submerge, and extinguish other existing and competing traditions. It can lead us to focus on a falsely unitary or unequivocal story about the meaning of the past when we should recognize the past as a complicated set of perspectives in tension with each other. Finally, to act in the name of a tradition is often to betray the tradition itself, by disregarding the living, changing features of a tradition and substituting a determinate and lifeless simulacrum.

More Balkin here (1990 article on the same theme).

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