History, Tradition, and the Designated Hitter Rule

Last week I had the great pleasure of discussing the role of history and tradition in constitutional interpretation with Professor Larry Solum at an event sponsored by Southern Methodist University. Also last week Professor Marc O. De Girolami penned an op-Ed in the New York times arguing that recent important Supreme Court cases including the landmark opinions in Dobbs and Bruen rely on history and tradition in ways that are substantially different from both prior cases and originalism. 

According to Professor De Girolami, the conservative justices (or at least some of them) have "indicated time and again that the meaning and law of the Constitution is often to be determined as much by enduring political and cultural practices as by the original meaning of its words. The fact that the Supreme Court seems to be finding its way toward an open embrace of traditionalism should be broadly celebrated."

Professor De Girolami is correct that this new emerging judicial focus on history and tradition should not be confused with originalism in any of its many forms. Whether one is searching for original meaning or intent or both, the relevant time period is usually limited to the ratification era plus or minus a few years. In other words, the relevant materials are at least somewhat cabined by time. 

But the Court’s recent turn to history and tradition in Dobbs and Bruen involves judicial inquiries into centuries of historical materials and traditions. For example, in Dobbs, the Court canvassed history and traditions from centuries before America's founding all the way to the ratification of the 14th Amendment (and beyond). And the focus is not on original meaning but longstanding laws, judicial opinions, and practices and traditions over time. This type of constitutional interpretation is neither originalism nor living constitutionalism. As I suggest below, in its strong form, it is both unhelpful and dangerous.

It is one thing for judges to adopt a pluralistic method of constitutional interpretation with diverse modalities including originalism, historicism, traditionalism, text, precedent, ideology, and pragmatism (consequences). Inevitably, such an approach leads to a form of living constitutionalism where ideology and consequences do most of the work. Using that method, judicial examination of our country's traditions, patterns, and practices to glean relevant information and wisdom makes sense. 

But in pluralistic models, history and tradition are only two of many different factors judges should take into account. History and tradition may be relevant in this model but are rarely if ever decisive (history and tradition are distinct ideas but close enough to warrant the same treatment for purposes of this post).

But that approach to history and tradition is not the one favored by Professor De Girolami or the current justices. De Girolami presents history and tradition as an alternative to the other modalities. Here is how he says it works: judges should examine "specific political and cultural practices — the activities of the organs of government and of individuals and groups across the country over long periods of time — to help determine constitutional meaning and law.... Traditionalism ... looks to the ordinary practices of the American people across time and throughout the country."

Professor Solum, along with Professor Randy Barnett, has also commented on the role of history and tradition in some of the Court's recent cases. These two well-known academic originalists wrote an article titled "Originalism After Dobbs, Bruen, and Kennedy: The Role of History and Tradition." 

Their article begins by saying that "in three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court." Not surprisingly, these two originalists concluded the following about history and tradition (the article is sophisticated and provocative but is not the direct subject of this post, hence the leap to the conclusion):

In this Article, we have argued for an originalist approach to history and tradition. History and tradition are essential elements in the originalist toolkit: no originalist should leave home without them. But originalists should be wary of the use of history and tradition by non-originalists, whether they be Progressive or Conservative Constitutional Pluralists. An originalist embrace of history and tradition that is inconsistent with the original public meaning of the constitutional text would undermine originalism itself and sacrifice the rule of law, the separation of powers, and popular sovereignty on the altar of pragmatism and political expediency. Our message is simple: “Originalists, don’t go there!”

Not only should originalists not go there (a strong version of traditionalism) but no one else should either because a tradition-focused approach to constitutional interpretation provides little guidance to judges and lets them hide their implicit value judgments and ideologies behind centuries of disputed practices, customs, and traditions (or the absence thereof). How long does something have to last to be a tradition? How widespread does the tradition have to be? Is rejection of  practices something judges should take strong notice of when examining the role of history and tradition? What if a long tradition is viewed as pernicious by large segments of minority populations? There are no good answers to any of these questions.

Here is a hypothetical to demonstrate these problems. 

The very first major league baseball game was played in 1871. For the next 98 years, pitchers in major league baseball took their turns at bat like everyone else. In 1973, one of the two major leagues changed the rules to allow designated hitters to bat in the pitcher's place, and then the other major league adopted the rule in 2022. When the first league changed the rules to allow designated hitters, the reaction among fans and the press was often negative and controversial. Today, the rule is mostly well-accepted.

Assume a committee of baseball executives is charged in 2024 with deciding anew whether the designated hitter rule is in accord with the best traditions of American baseball. How would they go about deciding that? There was no such rule for almost a century. Then, one of the two leagues adopts it but amidst great controversy. The other league does not go along for almost 50 years but then decides to adopt the rule as well. Today, people seem generally happy that pitchers do not bat, though some baseball purists do object. 

Is there a meaningful "tradition" of major league baseball using the designated hitter rule? Who knows? Moreover, a focus on the tradition question is misplaced. The real issue should be what is in the best interests of baseball now and in the future. Phrased that way, what happened in the past might (or might not) be relevant, but that examination is in pursuit of what is in the game's best interests moving forward. In any event, I defy anyone to make a persuasive case in either direction on the question whether the designated hitter rule is part of baseball's tradition in the sense that dropping the rule would be inconsistent with the best traditions of baseball.

Professor Solum made a similar argument during our discussion at SMU. In last year's landmark affirmative action case, SFFA v. Harvard, the justices seemed to think our country has a tradition of color-blindness (of course that is not true). But Professor Solum asked the rhetorical question: why isn't the almost-50-year practice of affirmative action in higher education a binding tradition? One could also argue the same thing about abortion rights. What if abortion rights and affirmative action had lasted 75 years or a full century? How long is long enough? And how widespread does the acceptance have to be?

Affirmative action had been used by many states happily for half-a-century (no one forced them to use it) but a minority of states outlawed affirmative action. Does it matter whether the number of outlier states is 5, 10, or 15? The question whether either affirmative action or abortion rights became enough of a tradition to warrant judicial approval is a metaphysical question impossible to answer persuasively. Better to just ask whether the practice at issue should  be constitutionally protected or rejected. At least that inquiry will not push the justices' ideologies underground.

Professor Jack Balkin has written an excellent new book with the title, "Memory and Authority: The Uses of History in Constitutional Interpretation." Balkin argues that, of course, judges should look to history and tradition when deciding constitutional cases but only in the service of deciding what is best today. He also forcefully sets forth the limits on judicial use of tradition to decide hard cases:

People's claims about tradition are likely to differ because 1) past practices are complex and not uniform, (2) because the meaning and lessons of tradition are often best described through generalization (and there is often more than one way to do this), and (3) because traditions evolve by discarding or rejecting previous elements of tradition and absorbing new ones. Traditions, in short, are always breaking away from parts of themselves, glomming onto what is new, and then re-describing the changes as always having been part of the tradition, correctly understood.

In 2024 America, some people will view the designated hitter rule, affirmative action, and abortion rights as important and longstanding traditions, while others will see one or more of them as serious departures from tradition. But history and tradition should not be the primary focus of judicial review because we have no shared understanding of what a legally binding tradition is nor will history be able to supply it. 

We will, of course, also disagree about whether the designated hitter rule, affirmative action, and abortion rights are good or bad, but at least that question requires the communication of relevant value judgments by the opponents and supporters of whatever practice is being investigated or questioned. For judges, the question of what is best isn't the only thing (text, precedent, and proper deference are also important) but it is the most important factor and should be discussed openly and transparently.

Judges deciding constitutional law cases should only use hundreds of years of American history and traditions to help them make the best decision they can for today's world. The dead hand of the past is not clear enough or important enough to serve as a lodestar for constitutional interpretation. The question always has to be: what is best now and in the future? 

And in my fantasy world, the answer most of the time should be judicial deference to more accountable political actors, but that is a subject for another day. For today, it is enough to recognize that there should be substantial limits on the use of history and tradition by judges deciding constitutional law cases.