Part II - Key Rhetorical Concepts Animating Contemporary American Law

2 The Ethos of Originalism

Mark A. Hannah and Francis J. Mootz III

We are all originalists

Solicitor General Elena Kagan (2010)

2.1 Introduction

Originalism has positioned itself as the au courant doctrine of legal interpretation in the United States. Proponents argue that originalism is a core element of our democratic identity and should be adopted by every judge. The originalist tenet¹ – that the meaning of a legal text is the ordinary meaning the text had when it was enacted – purportedly provides an objective basis for judging with integrity. Despite originalists’ grandiose claims, critics have lodged many well-reasoned objections that problematize originalists’ goals and methods (Chemerinsky, 2022; Mootz, 2017; Segall, 2018). Why, then, has originalism gained such widespread prominence? In this chapter, we offer a rhetorical analysis that explains its ascendence and strange persistence.

Our thesis is that originalists do not prevail primarily by persuading others through logic or dialectical reasoning (logos) or by promoting their audience’s disposition to hear their argument (pathos). Instead, originalists bring force to their claims by establishing and projecting an ethos. They draw on ethos when claiming to be principled legal advocates who are persons of good character and wisdom. However, “ethos” has a broader scope than the speaker’s reputation or character exhibited in an effort to persuade. Embracing “ethos” in its broadest sense reveals that originalism itself – distinct from its individual supporters – has an ethos in the form of a communal indwelling. Only by acknowledging this dimension of ethos can we explain how originalists have dominated recent jurisprudential debates.

The ethos of originalism is a dynamic social reality that has evolved over time. In Section 2.2, we reconceptualize “ethos” and recover its full meaning as developed by Martin Heidegger in his 1924 lectures on Aristotle. In Section 2.3, we describe the emergence of modern originalism in the work of Professor Raoul Berger and analyze his promotion of an ethos of originalism through proper acts of deference. In Section 2.4, we trace how Justice Antonin Scalia initially advanced the cause of originalism by narrowing its ethos of deference to a judicial model of rule-following. He later veered from originalism’s cause when his writings eschewed deference in favor of performative, individually motivated reasoning, but his reliance on the ethos of indwelling remained. In Section 2.5, we contrast Scalia’s efforts with those of Professor Lawrence Solum, the most prominent contemporary academic proponent of originalism. We demonstrate that, although more sophisticated and restrained than Scalia, Solum also relies on the ethos of indwelling to overcome originalism’s deficiencies.

Berger, Scalia, and Solum did not secure a place of pride for originalism solely through the ethos of personal character and effective reasoning. Rather, we demonstrate that they succeeded by connecting their work to a deep-seated shared sense of communal identity. This demonstration is a critical starting point for developing effective critical interventions in future jurisprudential debates about the merits of originalism as a theory of legal meaning.

2.2 The Concept of “Ethos”

In the absence of compelling logical demonstration, Aristotle locates the power of persuasion primarily in the trust that the audience places in the speaker. Aristotle contends that the speaker can be deemed trustworthy in three ways (Aristotle, 2007, p. 112). First, the speaker may display personal excellence in the virtues (arete), such as courage, temperance, and fairness. Second, they might demonstrate practical wisdom in their argument (phronesis), such as by choosing apt metaphors and cogent analysis. Third, they may exhibit goodwill toward the audience (and the entire community) (eunoia), which is an ethical relationship of shared regard. The combination of these three elements constitutes the speaker’s ethos. Logos and pathos are also forms of persuasion (pisteis) (Aristotle, 2007, p. 38), but Aristotle regards ethos as the most important because it looks beyond technique to the persuasion effected by the speaker as a person. As Gene Garver concludes, Aristotle ultimately regards rhetoric as “an art of character” (Garver, 1995). Ethos carries a weight that shapes future reasoning, which Garver explains with the concept of an “ethical surplus” (Garver, 2004, pp. 73–76). In practical reasoning, one is always committed to more than the logical entailments of one’s position. For example, in Brown v. Board of Education (1954), the Court committed the nation to racial desegregation beyond the specific question of educational equity presented in the case (Garver, 2004, pp. 83–85). We explain this powerful amplification of ethos by drawing on Heidegger’s reading of Aristotle.

2.2.1 The Speaker’s Display of Ethos: Arete and Phronesis

“Ethos” often is loosely translated as the speaker’s “character,” with attention to how it affects the speaker’s ability to persuade an audience. It is uncontroversial to suggest that an audience is more likely to trust the arguments of a person of high character. However, this limited sense of “ethos” as the speaker’s pre-established arete fails to capture how that ethos operates in and beyond the rhetorical situation. One of Aristotle’s advances was recognizing that ethos is evinced in the rhetorical act itself and not solely an antecedent fact about the speaker. This understanding that the speaker’s manifestation of ethos is dual in nature is summarized by Quintilian’s dictum that the ideal rhetor is a “good man speaking well.” One’s ethos as a trustworthy person is certainly augmented by one’s ability to generate appropriate arguments in a case (Garver, 1995, p. 15). Ultimately, Aristotle contends that the speaker’s ethos is revealed more by skill in practical reasoning than by virtue (Smith, 2004, p. 5).

2.2.2 The Speaker’s Participation in Communal Ethos: Eunoia

This reading of Aristotle’s definition of “ethos” is incomplete. There is a component of ethos that goes beyond the individual speaker and a particular argumentative challenge. In his 1924 lectures, Heidegger recuperated Aristotle’s “hermeneutics of everydayness” as an exploration of the meaning-laden background resources that gird ethical thought and action (Hyde, 2004, pp. xvii–xx; McNeill, 2006, pp. 77–94). Heidegger characterizes “ethos” as an exhibition of virtue activated by deliberative activity that draws on shared fore-understandings in the moment, a thoroughly futural comportment toward action rather than a stable and preexisting capacity (McNeill, 2006, p. 95). This is the critical difference that Heidegger draws between arete as virtuous activity and techne as merely adapting one’s established craft to particular circumstances.

Heidegger’s key insight is that our pre-thinking existence with others generates the call of conscience that spurs deliberations about shared conceptions of the good (Hyde, 2004, p. xx). This dimension of ethos is a way of being in which we dwell rhetorically, drawing from a community’s rhetorical resources to generate meaning but also being shaped by the community’s fore-understandings before consciously developing arguments for a particular position. The goodwill described by eunoia is rooted in the ethical indwelling shared by the speaker and audience.²

We can render Heidegger’s dense theorizing more accessible through several of his commentators. Walter Jost (2004, p. 75) connects this broad notion of “ethos as dwelling” to the “rhetorical places or topoi, more or less undefined terms, categories, cases, and the like useful for exploring … indeterminate practice problem[s].” Put differently, in Heidegger’s “way of seeing things, [ethos] is not something that a rhetor uses, it is something that uses him” (Kenny, 2004, p. 36). Calvin Schrag (2004, p. vii) characterizes this broader conception of ethos as “a region of knowing and working together in advance of strategies to achieve consensus in the public forum.” Viewed this way, ethos is “the dwelling or abode from which our communicative practices of entwined discourse and action take their rise and to which they return for their validations of sense and reference” (Schrag, 2004, p. vii). The ethos subtending a community is dynamic. Each rhetorical engagement not only draws on ethos, it also contributes to its evolution by creating a surplus for other community members to engage. A speaker has a personal ethos in the sense of demonstrated “character,” but the speaker’s character arises out of a shared ethos with the audience that provides the very possibility of having an individualized ethos. This is particularly true when a speaker seeks to motivate the audience to modify their practical reasoning and values. Accomplishing this is possible only by drawing from and embodying the discursive practices that constitute the communal ethos and then revealing to the audience a better “character” that exhibits the community’s values in deliberation (Smith, 2004, p. 13).³

We use the concept of “ethos” in the full sense developed above. Originalists use ethos – construed as exhibiting good character and practical reasoning through deferring to the Framers’ original intentions – to persuade others of the correctness of originalist methods. The speaker’s character is general in that their audience already knows them as trustworthy, but their character is also developed and revealed in how they persuade. But ethos does not arise out of thin air, or simply by the speaker’s force of will. Rather, the speaker’s ethos is evinced through embodying the community’s fore-understanding, namely its rhetorical commitments as represented in the values, topics, genres, and modes of argumentation that define the community and provide the resources for the exercise of practical wisdom. One cannot understand the power of ethos in persuasion without illuminating the constitutive effects of this indwelling.

2.2.3 An Example of Ethos as Communal Indwelling

We illustrate these different senses of “ethos” by describing Martin Medhurst’s (2004) argument that the country was not as rigidly divided during the 2000 presidential campaign as many assumed. He contends that the electorate shared Judeo-Christian values and sought a return to public spiritual values in the wake of the Clinton presidency. Medhurst traces the operation of ethos in the political debates at all three levels. First, Al Gore and George W. Bush both presented themselves as moral and upstanding men. Gore and his wife, Tipper, were widely admired as a loving couple. Bush had overcome alcoholism and other wayward behavior and offered himself as a committed Christian. Gore’s running mate, Joe Lieberman, advertised he would be working for the American people “24/6,” humorously using his devotion to the Sabbath to underscore his character. Moreover, the candidates demonstrated moral leadership by pitching their political arguments in respectful tones.

The ethos of the campaign was not limited to the candidates’ characters or how they exercised practical reasoning. Both candidates also drew upon American citizens’ deep belief in, and reverence for, the ideas embodied in American exceptionalism, that is, the principles of freedom, democracy, and the rule of law established at the nation’s founding. Americans longed for virtuous leadership and spiritual renewal, and these desires were actualized through the candidates’ dwelling within these principles. The candidates both tapped into and aligned their characters with this dimension (eunoia) of ethos, demonstrating a shared civic connection that was obscured by the campaigns’ hurly-burly politicking. Medhurst argues that the campaign revealed “an ethos to our democracy – a dwelling place – that is shared across parties, across religions, across geography, across races, and even, to some extent, across ideologies” (Medhurst, 2004, p. 115). Medhurst illustrates how a complex ethos that begins in shared preunderstandings ultimately was reflected in the candidates’ rhetorical practices, providing a model of our critical inquiry in this chapter. We apply this same heuristic to two of the “original” originalist thinkers, Professor Raoul Berger and Justice Antonin Scalia,⁴ and one of its contemporary defenders, Professor Lawrence Solum.

2.3 Raoul Berger: Establishing Deference as the Ethos of Originalism

Professor Raoul Berger is widely credited with being originalism’s first proponent. Berger worked in private and government practice and also as a law professor writing extensively on topics such as impeachment, executive privilege, and the death penalty. He is most well-known for his 1977 book Government by Judiciary: The Transformation of the Fourteenth Amendment (Berger, 1997), in which he argues that constitutional interpretation must be constrained by the original intentions of the Framers who authored the US Constitution (Berger, 1997, p. 18). Berger wrote Government by Judiciary because he was deeply concerned by judicial revision of the Fourteenth Amendment (Berger, 1985–1986, p. 297). As an originalism manifesto (Segall, 2017, p. 47), Government by Judiciary clarified the basic contours of originalism (O’Neill, 2005, p. 131) through passionately calling for judges to restrain their work by deferring to text and original meaning rather than implementing evolving contemporary values (Segall, 2017, p. 47). The arc of Berger’s theory lives on today through academic scholarship and judicial dicta commenting on its merits and limits. Some go so far as to argue that “almost everything being written, explicitly or implicitly, [about originalism] is a response to Government by Judiciary” (O’Neill, 2005, p. 131).

2.3.1 Berger’s Theory of Original Meaning

Berger’s originalism is traceable to his frustration with the activist decisions in the New Deal era that fundamentally altered the relationship between the state and the federal government (Presser, 2018). Berger did not want courts to be engines of progressive change, and he argued the Fourteenth Amendment’s purpose was “merely to provide a Constitutional basis for the 1866 Civil Rights Act … which was designed to guarantee that the newly freed Blacks would have the same rights to enforce contracts, to possess property, and to enjoy the security of life and limb as did whites” (para. 6). By exceeding this purpose, Berger argued that judges undermined traditional democratic and rule-of-law values.

Berger’s conception of originalist argument is animated by the conviction that judges cannot revise the Constitution (Berger, 1997, p. 21) because it is the covenant that operates at the heart of American civil religion (p. 394) and is the bulwark of people’s liberties (p. 321). Fealty to the Constitution runs deep in America, and Berger deeply respected the consent-based majoritarian nature of democratic systems (O’Neill, 2005, p. 112). Notably, he understood the Constitution as fundamental law that derived its obligatory force from the sovereignty of the people who ratified the Constitution. Berger believed the intentions of the sovereign people demanded obedience (Berger, 1997, p. 407) as people have the right to control their own destiny (p. 18). Encroaching on the Framers’ intentions, which were an expression of the people’s value choices (p. 301), thwarted this liberty.

Berger’s advocacy for an interpretive method grounded in original meaning also displayed his commitment to the rule of law (Berger, 1997, p. 6). He insisted that we are bound to the Constitution and strict rules and precedents (p. 329) and asserted that “preestablished rules serve the requirements of certainty and predictability so that people may conduct themselves accordingly” (p. 467). Perhaps the greatest rule to follow was the formal processes for amending the Constitution (p. 19). Berger characterized judicial discretion as an act of informal amendment that subordinated the law to judge’s predilections and ultimately displaced the Framers’ choices that expressed the people’s will (p. 461). In undermining this will, jurists created conditions for rule by elites and experts rather than democratic self-governance.

To uphold democratic and rule-of-law values, Berger centered deference as foundational to originalist practice. Though Berger did not explicitly conceptualize his theory of originalism as deference, his advocacy clearly intimated the need for a yielding influence in judicial decision-making. For example, Berger believed deference hobbles the exercise of judicial power and thus short-circuits activists’ opportunities to take advantage of the natural susceptibility of language (Berger, 1987–1988, p. 351). Importantly, such disabling ensures that judges merely expound and interpret the law and not make it (p. 351). Through its disabling work, deference establishes an objective critical practice that is immune to subjective disagreements about the merits of jurists’ interpretive work. When done properly, deference legitimates originalist interpretation as credible, trustworthy, and loyal to the Framer’s vision.

2.3.2 Berger’s Ethos as a Display of Character and Practical Reasoning

Though Berger does not expressly claim to be a good man speaking well, he was widely regarded as a principled theorist, known for his temperance (in the sense of appropriate restraint), truthfulness, and keen sense of justice (in the sense of sustaining American democratic and rule-of-law principles) (see O’Neill, 2005). His work criticizing President Nixon’s invocation of “executive privilege” during the Watergate crisis is representative of what it means for a legal advocate to work in a non-partisan manner, eschewing predilections for policy positions and standards of morality (Presser, 2018) in their decision-making. At times, Berger admittedly was irreverent (for example, his coining of phrases such as “judicial squatter sovereignty” (Berger, 1986–1987, p. 15) or “a cloud of post-Warren court euphoria” (Berger, 1997, p. 4), but at the heart of his projected character was an unmistakable quality of deference that turned on a profound well of respect for the Framers’ articulation of constitutional rights.

Berger’s virtue was put into question by his criticism of Brown v. Board of Education (1954). His display of character when criticizing the decision purported to be a principled approach to constitutional decision-making, such that he argued “intellectual honesty demands that the ‘original understanding’ be honored across the board” (Berger, 1997, p. 460) and that intellectual honesty in Brown requires that judges recognize that “the historical warrant for desegregation in the due process clause” is controversial (p. 7). In the face of overwhelming criticism, Berger reinforced his integrity by acknowledging he also held the political views of the judicial activists seeing to advance racial justice.⁵ Nevertheless, the rule of law demanded he cabin these personal views in deference to the law. Making this choice was difficult, as are all constitutional decisions involving core American values, and Berger evinced courage in making the “right” argument, something unprincipled Justices avoid when facing an unpalatable situation.

This tack was essential to Berger’s appeal. As a historical matter, it is clear that originalism arose as a political theory for reversing the Warren Court advances rather than as a legal theory of argumentation (Greene, 2009a; TerBeek, 2021). Many who developed the political dimensions of originalism, such as Attorney General Edwin Meese, offered weak and partisan arguments to support their position. Berger’s broader historical and political account sought to neutralize the racist underpinnings dedicated to undermining Brown by insisting that the rule of law had some regrettable effects that must be corrected legislatively.

Berger’s display of character included a well-developed communal sensibility illustrated through his centering of the locus of power in a community’s rhetorical commitments. Berger (1997, p. 52) recognized the “[Framers]’ concern with the rights of the community rather than the individual.” Honoring the Framers’ communal concerns thus requires acts of self-abnegation, the sacrifice of one’s predilections and morals that preserves the authority of the “we” and its values that were instantiated through ratification. Berger (1986, p. 14) understood the people have a fundamental right to rule themselves, and more importantly, that only they can revoke such authority. Not centering authority in the community creates the conditions that enable judges to upend and revoke that authority against the Framers’ constitutional designs.

Like Aristotle, Berger understood that the ability to persuade an audience turns on more than a speaker’s character and involves how the speaker makes their case. For originalism, this “how” dimension of ethos is cultivated by the speaker looking only to the meaning of the authoritative text when it was enacted, eschewing crude appeals to the audience’s emotions or hubristic efforts to define the “just” rather than the “legal” result. Berger (1986–1987, p. 10) framed the “how” dimension of ethos as a problem of evidence and “always insisted on the test of empirical evidence in the written record as the only legitimate source of constitutional law” (O’Neill, 2005, p. 112). In Government by Judiciary, for example, he argued it “is necessary to pile proof on proof” (Berger, 1997, p. 9) to demonstrate the overwhelming nature of an appeal to original meaning. Berger criticized activists for ignoring these evidentiary demands, and, as a corrective, suggests three features of originalist arguments – temporality, textual integrity, and authorial reputation – that judges and legal advocates ought to advance.

Berger’s emphasis on original meaning demands that originalist argument be temporally attentive (Berger, 1985–1986, p. 321). In originalist thought, skillful argument relies on evidence close to the founding – “contemporaneous construction” – because it more accurately reflects the Framers’ intentions (Berger, 1942, p. 625). It is not simply a matter of judges accepting a quantifiable expression of time, that is, texts written a certain number of years ago. Rather, judges use the time of a text’s creation to identify the contours of the rhetorical context that confine their considerations of rhetorical factors like audiences, events, and constraints⁶ in their arguments (Berger, 1997, p. 9).

Regarding textual integrity, Berger inhabited a procedural disposition shaped by well-defined guidelines for identifying and using appropriate texts. For example, Berger encouraged judges to use texts that had a stenographic quality (Berger, 1997, p. 7). Namely, he encouraged judges to draw from verbatim accounts developed during the time of an event’s occurring, as statements made in those accounts counted as facts rather than opinion (p. 7). As facts, such evidence is free from the distortions of recollection and thus more reliable (p. 7). Berger also was highly critical of unprincipled citation practices. In particular, he argued judges should not have a free and easy way with texts and criticized any incompatibility between sources and their application (Berger, 1985–1986, p. 331). Implicated in Berger’s concern with incompatibility is an understanding that there are appropriate genres for anchoring constitutional arguments. As an example, Berger describes the preservation of journals from the Convention that could be used to rebut false claims about the Framers’ intentions (Berger, 1985–1986, p. 313). Ultimately, skillful textual practices establish a relationality that induces deference to dampen judges’ speculative instincts to consider extralegal factors, like politics, which are at odds with the Framer’s original intentions. Significantly, Berger makes room for judges to consider policy texts when historical texts run out (Berger, 1942, p. 637), and in acknowledging such potential, Berger bolstered his character as a credible advocate who recognized originalism’s limits.

Concomitant with Berger’s concern with textual integrity is the character of the authorial voice that establishes the original meaning of the Constitution’s words, namely the voice of historical contemporaries and not modern theorists (Berger, 1997, p. 9). Berger deferred to trustworthy voices like Alexander Hamilton, James Madison, and other Framers (p. 427) whose words set the originalist community’s boundaries. Relatedly, Berger deferred to the voices of Senators who signed the Fourteenth Amendment and recertified the democratic will of the citizenry to alter the Constitution (Berger, 1985–1986, p. 297). He was suspicious of scholarship animated by personal bias and how it undermined the pull of deference to the community voice instantiated through the Constitution’s ratification (p. 323). To offset bias concerns, Berger insisted that the voice of competing arguments, represented by discrepant evidence and opposing inferences, be part of the evidentiary record for claims regarding the Framers’ original understanding (Berger, 1997, p. 10).

2.3.3 Berger’s Resonance with Communal Ethos as Indwelling

We interpret Berger’s theory of original meaning coupled with his display of character and practical reasoning as emerging from a region of knowing (Schrag, 2004, pp. 4–5) shaped by the democratic and rule-of-law principles that defined the American legal community. In particular, his advocacy of deference was shaped by the ethos of indwelling that was behind and always already supporting his display of character and practical reasoning. The ethos of originalism’s indwelling is a pre-thinking existence that operates in advance of argumentative strategies and exegetical claims. Berger’s demonstration of communal sensibility along with his attention to issues of temporality, textual integrity, and authorial reputation embodied a persistent mode of deference that took its rise from the region of knowing and then came back for its validation through subsequent enactments of deference to original meaning.

Returning to Berger’s willingness to jettison Brown, we can see that it was not fatal because it hewed closely to rule-of-law principles from which the conservative white majority wanted to draw to undo the civil rights ethos. By expressly putting his character into question, Berger’s originalist argument regarding Brown evinced a principled argumentative approach that was – on its own terms, as a matter of logic – unassailable. He enacted a contextual sensibility by constraining his assessment to the parameters of Brown and not speculating about the decision’s moral rightness. His approach was ensconced in the rule of law and aimed to preserve the ideal of democratic self-governance that subtended originalism’s communal ethos. Berger’s assessment of Brown establishes that originalism is inherently conservative and state centered. As we show next, Justice Scalia embodied and amplified this very nature through his originalist practice that drew from and was validated through originalism’s indwelling ethos.

2.4 Justice Antonin Scalia: Revising the Deferential Ethos of Originalism by Focusing on Rules That Generate Certainty in Results

Berger successfully promoted originalist theory by projecting an ethos of deference to democratic rule. As an academic commentator, he succeeded in placing the topic at the center of jurisprudential debates. Ultimately, however, his ethos suffered when he declared that Brown was illegitimate. This abrasive disturbance of shared social values cast a dark shadow on his methodology. Deference to a fault with respect to Brown was unappealing to the vast majority of scholars, judges, and lawyers, even those with originalist convictions. And yet, originalism still got off the ground, most famously through the jurisprudence of Justice Antonin Scalia. To avoid negative ethos, Justice Scalia paid scant scholarly attention to Berger’s work and, like most originalists, contended that the result in Brown was consistent with his originalist methodology (Scalia & Garner, 2012, p. 88; see Calabresi & Perl, 2014). Nevertheless, Justice Scalia faced his own difficulties in maintaining ethos as a judge.

2.4.1 Justice Scalia’s Theory of Original Meaning

Justice Scalia promoted originalism as the least problematic – but by no means perfect – method for promoting certainty and consistency in adjudication.⁷ Early in his tenure on the Supreme Court he, like Berger, championed a practical theory of judicial self-restraint capable of constraining judges to defer to democratic rule. Unlike the case-by-case weighing of equities by common law judges, Justice Scalia argued that modern judges confronting binding legal texts must follow the rules established by democratically responsive government branches. His measured articulation of this approach is reasoned and pragmatic and therefore able to promote adherence through a strong ethos.

Similar to Berger’s interest in strong empirical foundations, Justice Scalia argued that his commitment to following a statute’s ordinary textual meaning provides an invariant, empirical foundation upon which binding rules may be established (Scalia, 1989a, pp. 1184–1185). Certainly, judges will exercise discretion to choose among several plausible rules, but this activity should be minimal if the judge is committed to defer to the statute’s original meaning (pp. 1186–1187). Justice Scalia readily admits that originalism is imperfect, but he insists that the question

is not whether originalism is perfect. … The question is whether it is better than anything else. … And that is not difficult. … The reality is that originalism is the only game in town – the only real, verifiable criterion that can prevent judges from making the Constitution say whatever they think it should say. … The living constitutionalist is a happy fella, because it turns out that the Constitution always means precisely what he thinks it ought to mean.

(Scalia, 2017, pp. 210–212)

Originalism, then, is the “lesser evil” when compared to other jurisprudential approaches (Scalia, 1989b).

2.4.2 Justice Scalia’s Ethos as a Display of Character and Practical Reasoning

Justice Scalia presents a measured and reasonable defense of adhering to the value of certainty to the extent possible, even while acknowledging the epistemic and volitional obstacles to achieving complete adherence. He puts his faith in a jurisprudence of rules, grounded in the fixed, original understanding of the governing text, but he is astute enough to recognize we will fall short in our good-faith effort to follow this rigorous path. His point is a practical one. Non-originalists invite a wholesale failure of the judicial function, but realistic (faith-hearted and imperfect) originalists suffer only occasional concessions to human frailty while generally holding firm to rule-of-law values.

Justice Scalia’s definition of originalism trumpets the virtue of judges who ignore the lure of power and defer to clear rules. Like Berger, he projects the image of a stalwart adherent to the rule of law who bravely overcomes his own all-too-human desire to effectuate justice on a case-by-case basis. He presents himself as a fallen angel trying to defer to legislative rules but acknowledging that he too, for his sins, will almost certainly write some opinions that rest on undisciplined weighing of incommensurable equities (Scalia, 1989a, pp. 1186–1187). A quick gloss of Scalia’s words suggests he is a virtuous jurist aware of his limitations, yet the coy reference to himself as a fallen angel also intimates a desire to draw attention to himself. Through self-references like these, Scalia unwittingly laid the grounds for the undoing of his judicial character. Over time this undoing became a reality, as he became known for a communicative style characterized by florid prose and rhetorical excess (Shanske, 2019) which cuts at the heart of his presumably restrained and forthright judicial character.

Unlike Berger, Justice Scalia does not regard originalism as a truly attainable goal as much as an aspiration. Rather than hewing to a rigid philosophy, his ethos is one of practical attunement to the realities of judging, a sensibility Berger explicitly rejects. For example, Scalia readily accepted (undoubtedly with cases like Brown in mind) the virtue of stare decisis with his customary flourish: “The way I like to put it is: I am a textualist, I am an originalist. I am not a nut. You cannot go back and redo everything” (Scalia, 2015, p. 588). Though some argue that Scalia’s originalist defense of Brown is so unpersuasive that it actually weakens his ethos (Turner, 2014), Scalia managed to project a strong ethos through humor, humility, and a sense of duty. He protects the rule of law not by wildly speculating about what the law ought to be but instead by constraining his work to what the law is.

Over time, though, Justice Scalia’s ethos eroded as he became a visible proponent of a conservative political movement rather than a judge writing about, and employing, a distinctive interpretation theory (Segall, 2018, pp. 10–11). The tenor of his dissenting opinions and public speeches evidenced anger and intolerance that far exceeded Berger’s occasional irreverence. In the string of gay rights cases authored by Justice Kennedy, Justice Scalia’s intemperance spiraled out of control. He declared Romer “an act, not of judicial judgment but of political will” (Romer v. Evans, 1996, p. 653), Lawrence a “product of a Court … that has largely signed on to the so-called homosexual agenda” (Lawrence v. Texas, 2003, p. 2496), and Obergefell so bad that if he were to join the majority he would have to hide his “head in a bag,” given that it was written in the “mystical aphorisms of the fortune cookie” to veil a “Judicial Putsch” (Obergefell v. Hodges, 2015, pp. 718–719).

Beyond these cases, Scalia continued leveling searing critiques against the motives and honesty of other Justices (Mootz, 2019, p. 97 n. 2), thus making him seem more like a partisan political figure (Berman, 2017; Newman, 2006–2007, p. 909). Through his behavior, it was increasingly clear he no longer made difficult choices constrained by law’s rhetorical commitments but instead expedient ones that merely served conservative goals. This perceived alignment between his legal positions and the conservative political movement cast a long shadow over his case for originalism and thereby pitted his jurisprudential ambitions at odds with the American vision of liberty, democracy, and rule of law that girded Berger’s theorizing of originalism. Ultimately, rather than building consensus around his view of proper judicial deference, Justice Scalia’s lack of virtue and character defects undoubtedly put off many scholars, originalist and non-originalist alike.

Notwithstanding his irascible personality, Justice Scalia garnered widespread attention for his jurisprudential methodology. Adhering to meaning that is fixed at the time of a text’s enactment promises to convert legal questions into empirical historical inquiries that have a correct and determinable answer. Justice Scalia unremittingly takes up this task, seeking to persuade his readers that legal meaning stands apart from political calculation and policy implementation.

The primary appeal of originalism is that it can serve as a constraining method whose results can be reviewed objectively. Perhaps the best demonstration of the ethos of Justice Scalia’s practical argumentation is found in his majority opinion in District of Columbia v. Heller (2008). In it, Justice Scalia looks to the stable, unchanging bedrock of historical fact as an anchor against profound changes in society since the founding. Disregarding the contentious debates among professional legal historians about the nature of historical knowledge given the inevitable hermeneutical character of understanding, he assumes that constitutional provisions have an unchanging meaning that is grounded in the historical understanding of the text when it was enacted. Consequently, he spends more than fifty pages crafting a thick citational web of sources to analyze the “meaning of the Second Amendment” before turning “finally to the law at issue here” (District of Columbia v. Heller, 2008, p. 628). His dense narrative confirming that the Amendment grants gun owners protection for self-defense purposes appears unassailable; by working with texts from the time of the Amendment’s enactment, Scalia ostensibly was imbuing his analysis with a sense of temporal and textual integrity anchored in a strong empirical record. However, as Justice Stevens’ dissent regarding the deeply disputed history of the Amendment makes clear, histories like the one developed in Heller are highly contested as a matter of both political theory and historical truth. As such, those histories can open the door to smuggling in the values that originalism sought to eliminate.

Scalia’s originalist method accrues ethos by centering deference to minimize doubt and indeterminacy, yet his actual performance in Heller falls short. First, his practical reasoning suffers from hubris in that he rarely recognizes the possibility that others may have insights into textual meaning that is not the product of originalist method. Furthermore, his “rhetoric of constitutional absolutism” rings hollow in the ears of those in the legal community who strive to balance incommensurable values and weakens the force of his argument (Berger, 2015). His aggressive method of judging in Heller (Segall, 2018, pp. 123–124, 140) also was rejected by many professional historians (pp. 143–144), and a failure to provide a convincing, empirically sound historical account is a failure at the core of originalist practice. Just as Justice Scalia’s judicial character was highly suspect, so too his activity of practical reasoning was highly questionable.

2.4.3 Scalia’s Resonance with Communal Ethos as Indwelling

Justice Scalia’s originalism is part of a broader commitment to a norm of rule-following and institutional deference, as expressed by Berger, which compels judges to abstain from imposing their policy views and to adhere to democratically enacted laws. These commitments are deeply seated in democratic sentiments and corresponding principles of the separation of powers. Our assessment of the ethos of originalism as indwelling is buttressed by Eric Segall’s (2018) characterization that originalism is more a matter of faith than a matter of reasoned deliberation about the best means for legal decision-making.

Why was Scalia so effective advocating for a theory of constitutional interpretation he did not [in practice] adopt? The answer may be that originalism is not a theory of constitutional interpretation judges can effectively use to decide cases but a symbol, an article of faith, that links judicial review and the rule of law.

(Segall, 2018, p. 183)

What binds the proponents of originalism is just “the faith that some combination of text, originalist-era evidence, and history can constrain Supreme Court decision-making (Segall, 2018, p. 193).⁸ Our point is that this “faith” subtends the reasoned arguments about our practices as an affective feature of the indwelling that operates as an always already rhetorical force in constitutional interpretation.

John Manning explains Scalia’s success promoting originalism in terms that fit our model. Manning argues that Scalia gained traction not through his personal ethos but because “his emphasis on standardless judicial discretion tapped into a preexisting, and deeply rooted, strain of American legal culture that aspires to judicial objectivity and constraint” (Manning, 2017, p. 771). His “anti-discretion principle reflects a persistent strain of thought in the American legal tradition” (p. 776), with “the aspiration to identify external legal constraints upon judging [continuing] to have a pull” (p. 778). Ironically, Manning notes, Scalia’s deconstructive critique of judicial rhetoric was his great contribution to the cause, demonstrating that judges everywhere were arrogating discretion to themselves in their interpretive practices (pp. 779–781). In all of this, we recognize Scalia’s opposition to judicial discretion, though in a markedly different tone, as furthering Berger’s original lament. His tone led to the undoing of his personal character, but it reverberated with the American legal community’s shared fore-understanding of values and modes of argumentation that gave shape to Berger’s rhetoric of deference.

2.5 Lawrence Solum: Generating Certainty in Judging through the Fixed Meaning of Language

Professor Berger’s argument for a principled approach to constitutional decision-making that constrained judges set the stage for Justice Scalia to develop the judicial disposition of originalism, albeit with only a crude epistemological backing. Professor Lawrence Solum has been the most ardent and cogent defender of originalism as a correct hermeneutical theory of legal meaning, revisiting Berger’s theory and Scalia’s judicial practice in a sophisticated theoretical account that fully displays the ethos of originalism.

2.5.1 Solum’s Theory of Original Public Meaning

There are many varieties of originalist theory, but most “contemporary originalists aim to recover the public meaning of the constitutional text at the time each provision was framed and ratified” (Solum, 2019, p. 1251). This definition seeks to avoid the problems raised by Berger’s efforts to “discover” the intentions of the drafters.

“Originalism” is a family of contemporary theories of constitutional interpretation and construction that share two core ideas. First, the communicative content of the constitutional text is fixed at the time each provision is framed and ratified – The Fixation Thesis. Second, constitutional practice should be constrained by that communicative content of the text, which we can call the “original public meaning” – The Constraint Principle.

(Solum, 2017, p. 269; see also Solum, 2019, pp. 1270–1271)

Solum concedes there are different kinds of meaning, and he emphasizes he is interested only in the communicative (public) meaning of legal texts, as opposed to the drafters’ intent or the purpose of the enactment (Solum, 2015, pp. 20–21; see also 2013a, p. 479). By focusing on fixed communicative meaning, Solum narrows the interpretive field and achieves certainty despite the “linguistic drift” of meaning over time (Solum, 2015, pp. 62–63). For example, a constitutional reference to “domestic violence” has a fixed meaning from the time of the founding that differs from the meaning the phrase might have today (US Constitution, art. IV, sec. 4).

Why is original public meaning the necessary touchstone for legal interpretation? Solum asserts that, from “the very beginning, American constitutional jurisprudence has recognized that the meaning of the constitutional text does not change” (Solum, 2018, p. 237). The normative obligation of judges to defer to the text’s fixed meaning rather than enforce their own preferences is assumed rather than argued. Having identified a source of fixed meaning, it follows that the constraint principle will restrain judges from contradicting or exceeding that meaning. Critics object that historians do not take such a simplistic view of the past, but Solum emphasizes that uncovering the fixed communicative meaning of a text does not entail the same difficulties that professional historians encounter, inasmuch as they have competing objectives beyond recuperating communicative meaning.⁹ In short, if “originalists are right about the Constraint Principle, then the truth of the Fixation Thesis should have important implications for constitutional practice” because it is the only plausible source for that constraint (Solum, 2015, p. 78).

Solum does not adequately account for the epistemological and motivational difficulties of judging. The Fixation Thesis does not ensure that the fixed meaning is pellucid, nor is the conversational meaning self-executing in a manner that definitively resolves interpretative problems. Judges begin with the original meaning of the text and then “construct” a result in the case at hand in line with a variety of judicial norms. Applying a text to a specific controversy requires judgment and the construction of a legal rule (Solum, 2010, 2013b). Even if the fixed linguistic meaning is clear, the judge must often engage in contemporary assessment of the legal rule for a case, working within what Solum calls the “construction zone.” The construction zone is both “ubiquitous” and “ineliminable” in judicial practice (Solum, 2013b, p. 516).

To Solum’s credit, he doesn’t dodge the instability inherent in the trilogy of fixed meaning, the normative justification of constraint, and the practical necessity for construction. Because he fails to resolve these tensions, he roots his theoretical construct with a diverse ethos that strives to compensate for the weakness of his logos.

2.5.2 Solum’s Ethos as a Display of Character and Practical Reasoning

Solum writes in a neutral scholarly voice that defends his position based wholly on the cogency of his arguments. Although he does not expressly invoke his character, Solum does make an implicit appeal along these lines. First, he carefully circumscribes the scope of inquiry by admitting that defining originalism is an ongoing task he doesn’t claim to have fully achieved. Solum often notes that applications of his theoretical claims must “wait another day,” because they would require “deep and comprehensive research” (Solum, 2015, pp. 29, 70, 75). More important, he never claims to provide a complete analysis of a single legal dispute using originalist methodology (Solum, 2018, p. 237). With abundant humility, like early Justice Scalia, he claims only to be clarifying the conceptual terrain so as to provide a lingua franca for continuing jurisprudential debates (Solum, 2013a, pp. 518–519, 2013b, p. 536, 2019, p. 1296).

Solum’s restrained claims are most apparent in his review of Jack Balkin’s effort to link originalism with progressive politics and judicial practices. In various works, Balkin has argued that we can reconcile the original understanding of legal texts with efforts to apply them so as to overcome the Framers’ limited vision (Balkin, 2011a, 2011b). Balkin suggests that the meaning of the text provides some measure of constraint on the elaboration of constitutional principles in a progressive manner. Balkin thereby combines fidelity to a fixed meaning with faith in redemptive judicial practices. This appears to put the theory at war with itself, precisely the kind of uncertainty that originalism is supposed to preclude (Solum, 2012, p. 162).

In response, Solum argues that courts are not bound by original meaning when they are operating in the “construction zone” to elaborate on vague or ambiguous terms. Thus, it is possible to assimilate the living constitutional method of construction with the fixation thesis of meaning, without engaging in a logical error. But this expansion must be duly circumscribed if it is not to undermine originalism. Solum indicts Balkin for embracing Philip Bobbit’s (CITE) modes of argumentation without scrupulously distinguishing the modes for finding the text’s fixed meaning from those that can be used only in the “construction zone” in the absence of a controlling fixed meaning.

There may be special cases of irreducible ambiguity – where resort to context is insufficient to yield clear communicative content. In those special cases, we are in the construction zone, and originalists might concede that [Bobbitt’s approaches of] precedent, ethos, and consequences are relevant. (This will depend on one’s theory of constitutional construction – a topic outside the scope of this essay.)

(Solum, 2012, p. 171)

Living constitutionalism may well be an appropriate strategy for legal construction, but one must steadfastly resolve not to collapse the initial inquiry into fixed meaning into an unguided “construction” of opaque provisions to address the case at hand. Solum concludes that Balkin ultimately must “face squarely the central dilemma of contemporary constitutional theory. If faith in constitutional redemption cannot be reconciled with fidelity to constitutional text, then which shall yield?” (Solum, 2012, p. 173). Solum encourages scholars to reject the appeal of progressive construction that threatens to eviscerate the constraining effect of fixed meaning. As a practical matter, Solum understood there is no way to avoid this slippage, other than fidelity to original meaning whenever it can be discerned and applied. Solum rejects the lure of becoming a philosopher king who heroically pronounces the appropriate constitutional doctrine, claiming for himself a small role in preserving democratic and rule-of-law values.

The nature of Solum’s argumentation also evinces ethos. Like Berger, he is non-partisan and does not argue in favor of any particular conception of constitutional law. Rather, he is committed to uncovering original meaning to serve as an independent constraint on judging that produces both liberal and conservative results (Solum, 2018). Thus, a self-effacing judge or scholar truly constrained by the original meaning should sometimes be surprised by the applicable rule provided by the fixed meaning.

Moreover, Solum consistently defers analysis of particular disputes. Unlike Justice Scalia, operating under the time constraints of appellate litigation in deciding Heller, Solum can sketch a method that appears objective in nature but is never fully put to the test of resolving an actual legal dispute. This clever approach makes it difficult to challenge originalism as practiced rather than as conceived. Interestingly, though, Solum feels the need to make the case that Brown might be justified by originalist method, recognizing that a “large question is raised” if the canonical Brown can’t be accommodated by one’s theory (Solum, 2018, pp. 259–260). Solum argues that an originalist understanding of the Privileges and Immunities Clause might provide justification for Brown that is difficult to sustain under the original meaning of the Equal Protection Clause. Resisting the need to speculate about the drafters’ expectations of how the text would be interpreted, Solum favors the original meaning of the Privileges and Immunities Clause as being more protective (Solum, 2018, pp. 265–266). Of course, Solum does not put himself at risk by making the full argument regarding Brown’s legitimacy.

Finally, Solum’s practical reasoning is expressly pragmatic. Because some believe that justice would be improved by moving beyond original textual meanings, Solum appeals to the idea of originalism as a compromise rather than vacillating between “liberal” and “conservative” courts by endorsing originalism and the sometimes surprising results it produces (Solum, 2018, pp. 270–272). People across the political spectrum sometimes will see their political positions adopted by the Court if decision-making is driven by fixed meaning with varying applications rather than substantive political positions. “An originalist jurisprudence would lead to a mix of outcomes – conservative, liberal, progressive, and libertarian – if the original meaning of the constitution were fully implemented” (Solum, 2018, p. 277). This pragmatism resonates with Berger’s insistence that practical legal reasoning should not be filtered through a single political perspective.

2.5.3 Solum’s Resonance with Communal Ethos as Indwelling

There is a sense in which originalism is so foundational to preserving the ideals of American democracy and its rule-of-law commitments that it is immune from critique. Thus, Justice Kagan “surrenders” to the reality, and perhaps even the perceived necessity, that today we are all originalists. As Eric Segall (2018) summarizes, drawing from Solum’s testimony in connection with Judge Neil Gorsuch’s nomination to the Supreme Court, the defense of originalism appeals to universal values that deeply inform our understanding even before we begin to make specific arguments.

Professor Solum ended his testimony with the following statement: “The whole idea of the originalist project is to take politics and ideology out of law. Democrats and Republicans, progressives and conservatives, liberals and libertarians – we should all agree that the Supreme Court Justices should be selected for their dedication to the rule of law.” This idea, that only originalism can make judging and judicial review consistent with the rule of law, and that only originalism can “take politics and ideology” out of the Supreme Court are constant refrains of many originalists.

(Segall, 2018, p. 176)

Although these grand claims are not realized in judicial practice, “originalism as a brand is selling better today than ever before” precisely because it resonates with these deep values that are a matter of our constitutive civic “faith” rather than the product of reason (Segall, 2018, p. 185).

Our characterization of the ethos of originalism as indwelling best explains the “faith” that supports originalism’s continuing influence.¹⁰ Interestingly, Solum directly addresses the indwelling ethos when arguing against Bobbit’s “ethical” mode of constitutional argumentation that looks beyond the Constitution’s text.

Nonconstitutional texts might serve as evidence of what Philip Bobbitt calls “ethos,” the shared values of the American people. Some constitutional theorists may believe that such values trump the communicative content of the constitutional text, but the constraint principle commits originalists to the view that ethos can play only a supplementary role. Deploying the terminology of the interpretation–construction distinction, ethos (as evidenced by canonical nonconstitutional texts) could guide constitutional actors in the construction zone – but would have no direct relevance to constitutional interpretation.

(Solum, 2013c, pp. 1974–1975)

Solum regards ethos as a concession to the necessity for construction and does not understand how much his theory is underwritten by implicit appeals to a pre-argumentative ethos of deference. More specifically, he concerns himself only with those contemporary values operating in the construction zone while simultaneously ignoring the shared values animating the will of the people instantiated through ratification.

2.6 Conclusion

The success of originalist theory and its apparent staying power is explained by its ethos. Not the individual ethos projected by Justice Scalia and Professors Berger and Solum through a demonstration of their character and reasoning, but rather the communal ethos that they were able to invoke and draw from as a rhetorical well of prejudgments and commitments. We offer this conclusion not only as an explanation of how originalism could succeed against the odds with such weak logos and personal ethos but also as a first step in explaining how critics of originalism must respond if they hope to be effective in jurisprudential debates. Put simply, critics can overcome an argument deeply rooted in an ethos of indwelling only by offering a counterargument that is rooted in an alternative indwelling.

Unfortunately, we have an all too vivid example of the challenges facing those who seek to argue against originalism. Donald Trump was popular enough to win the US presidency despite what should clearly have been disqualifying traits. The ethos exhibited in his character and argumentation was wholly negative by any reasonable account. And yet, he won the presidency with fervent followers who found his appeal compelling. Tapping into dimensions of our dwelling together in meaning – American exceptionalism, national security, racial protectionism, and anti-elitism, to name a few features – Trump tapped into a strong ethos of indwelling to overcome his substantial personal deficits. His critics continually failed to understand that pointing out his personal flaws or his warped reasoning was utterly beside the point. The real battleground was the marshalling of the communal ethos to point to a particular political expression of our deepest values (or, more accurately in this case, an expression of our deepest fears).

A rhetorical analysis of the success of originalism by three of its most notable proponents reveals that ethos has secured the apparent temporary victory. To effectively respond, originalist critics must also draw from our communal indwelling without pretending to render it fully present as a logically compelling argument. Indwelling supports and sustains our thinking; it is not a subject we can take up at arm’s length and use like a tool. Without engaging in rhetoric at this deep level, critics cannot hope to counter originalism’s force.

We now return to the testimony of then-Solicitor-General Kagan that “we are all originalists.” She felt compelled to make this concession because it was unthinkable to reject the constraints provided by originalist theory through its insistence on deference to democratic and rule-of-law values. But, her testimony was not a capitulation to Justice Scalia’s opportunistic use of originalism to secure conservative results. Instead, she found in “original understanding” a confirmation of the dynamic character of the Constitution and its commitments to sustaining the Framers’ choices that expressed the people’s will. Consider her testimony in its broader context:

[T]he Framers were incredibly wise men, and if we always remember that, we will do pretty well, because part of their wisdom was that they wrote a Constitution for the ages. And this was very much in their mind. This was part of their consciousness. … They were looking generations and generations and generations ahead and knowing that they were writing a Constitution for all that period of time, and that circumstances and that the world would change, just as it had changed in their own lives very dramatically. So, they knew all about change. … And I think that they laid down – sometimes they laid down very specific rules. Sometimes they laid down broad principles. Either way we apply what they say, what they meant to do. So, in that sense, we are all originalists.

(Kagan, 2010, pp. 61–62)

Originalism is neither the question nor the answer. What originalism means, what values it calls forth in support of our polity, is the issue at hand.

We now briefly outline strategies for confronting ethos as indwelling to prop up originalist arguments. Indwelling is precognitive; it is best understood as operating at the level of the symbolic realm, rather than as a discursive elaboration of a cognitive capacity (Arnold, 1962). Gene Garver’s concept of “ethical surplus” explains the rhetorical logic at work in the reference to ethos as indwelling and provides insight into how we can generate persuasive critiques of originalism.¹¹

The foundational symbols that structure our shared indwelling are polysemic and non-discursive. Moreover, these symbols are in tension with each other. Exploiting the ambiguities in the symbolic realm is the only realistic manner to challenge the originalist ethos. Originalists have particularly focused on our shared commitment to certainty, objectivity, and univocity in the exposition of law, anchoring arguments to support originalism that otherwise would be susceptible to criticisms. Critics should begin by linking their arguments to these same principles.

Perhaps the single most important strategy is to connect certainty and objectivity with a need for judicial transparency. Arguing against the fantasy of semantic univocity, critics should adopt Karl Llewellyn’s theory that the law becomes more certain when it is less technical and participates in the shared values of the community.¹² The availability of a plurality of approaches for resolving a particular interpretive question is not problematic if the decision-maker engages in practical reasoning honestly and in good faith. Critics can thus unite the three elements of ethos. Justice Kennedy’s approach in the “gay rights” cases evinces the kind of reasonable development over time that demonstrates the operation of ethical surplus and is not merely a matter of the Justice’s subjective will. Indeed, in Lawrence, Justice Scalia expressed his concern that the “ethical surplus” of Justice Kennedy’s reasoning in Lawrence would almost certainly unfold and result in Obergefell.¹³ Ironically, by this prediction, Justice Scalia proves the case that non-originalist legal reasoning generates some degree of “certainty.”

Our brief outline of how ethos as indwelling should power the critique of originalism is not unprecedented. A number of scholars have pursued some of these strategies, and we have discussed several examples in this chapter. The essential point is that the criticisms don’t take hold to the extent that they focus on the ethos of the speaker’s characteristics, rather than focusing on the ethos of indwelling. Using ancient Greek understandings of persuasion through ethos, we are better positioned to develop more specific strategies that rebut the ethos of originalism when the interpretive theory is advanced in an unprincipled manner.

3 The Role of Tradition in Classical and Contemporary Argument

Vasileios Adamidis and Laura A. Webb

3.1 Introduction

For centuries, advocates have used arguments grounded in tradition to persuade legal decision-makers. The appeal of tradition – whether “tradition” refers to long-standing cultural practices, the alleged intentions and beliefs of revered historical figures, or a narrative about the historical path of a people – is well-established. What is less well-established is how classical rhetorical structures and concepts of tradition can be used to reflect on and even challenge contemporary social injustices or inequalities. In this chapter, we discuss how advocates on both sides of an issue – even the side challenging the status quo – might effectively use tradition to advance their cause. We explore the role of tradition in forensic Athenian rhetoric and identify similarities in contemporary American legal argument. We then identify specific rhetorical strategies used by advocates in both systems in an effort to shed light on how such tools may be used by advocates, even ones for whom tradition may seem to be an unlikely ally.

We start our journey with the forensic rhetoric of classical Athens. Traditionalism, as a central feature of classical Athenian ideology, was evident in the literary works and political agendas of the period (Dover, 1994, p. 7; Hansen, 1991, pp. 296–297). References to the patrios politeia (ancestral constitution) and the achievements of the ancestors were common in the popular and political discourse of classical Athens. Respect for tradition was manifest in the legal system too; the expediency of old laws was unquestionable,¹ as was the authority of lawgivers of the past such as Solon and Draco (Gagarin, 2020a, p. 26). This popular appeal of tradition allowed orators to claim that “the public conduct of a state, like the private conduct of a man, should always be guided by its most honorable traditions” (Dem. 18.95; Aeschin. 1.185; 3.178–183). Making the most of this ideological inclination, litigants frequently evoked tradition to indicate the right course of action; in deciding a case, Athenian dicasts² were encouraged to imitate the methodology and practices of their ancestors (Adamidis, 2024). In that respect, speakers referred to Athenian tradition both to argue for the “correct” interpretation of the law and to project a certain ethos that allowed them to identify with the audience and alienate the adversary.

Classical rhetoricians understood that systematically identifying types of possible arguments for a particular matter was a critical part of the process of creating persuasive arguments. Aristotle, in his Rhetoric, listed a number of topoi: lines of argument that could help the advocate invent appropriate arguments and then effectively articulate those arguments to an audience (Aristotle, 2007).³ For example, a deliberative orator speaking publicly about legislative matters would be well-advised to consider lines of argument focused on “finances, war and peace, national defense, imports and exports, and the framing of laws” (Aristotle, 2007, 1.4.7, 1359b). Contemporary American advocates and jurists have followed Aristotle’s lead by identifying common types of argument or common sources from which legal arguments can be formed, and checking to see which type or types may be most helpful in a specific client matter. For example, Wilson Huhn has identified “five types of legal argument,” including tradition as well as text, intent, precedent, and policy (Huhn, 2014). Huhn argues that law students and lawyers should recognize these types and assess their strengths and weaknesses for a particular situation, so that advocates can effectively use a combination of types to create persuasive arguments. Tradition is thus a type of argument relied upon by both classical rhetors and contemporary lawyers; for the latter, arguments grounded in tradition and history can be particularly effective, perhaps most notably in the context of constitutional arguments (Balkin, 2013, 2018; Huhn, 2014).

This chapter identifies intersections between forensic Athenian rhetoric and contemporary American legal rhetoric on the use of tradition-based legal arguments and explores the use of tradition on the rhetorical battleground. We argue that advocates, both past and present, have found tradition so compelling that both sides on an issue may use arguments with foundations in tradition, and advocates will use “tradition” both to support long-standing practices and to argue that those practices should be overturned. “Tradition” may be broadly construed by the speaker to be long-standing custom or repeated practices, views attributed to historical figures, or even an evolving social identity, depending on what formulation best suits the speaker’s argument. In this way, even the Western-centric structure and approach of classical rhetoric may be utilized by modern advocates to challenge – and combat – contemporary social injustices such as discrimination based on sexual orientation. Creative advocates may use tradition to justify outcomes that are, in some sense, truly non-traditional. And jurists wishing to provide rationales for such outcomes are likely to use tradition – in one way or another – to explain why that outcome is consistent with the past even as it achieves societal change.

Intuitively, we might expect that only advocates who support the superficially “traditional” position would rely on long-standing cultural practices, the intentions of respected figures from the past, or historical references, while advocates on the side of progressive causes might be expected to argue that “tradition” should be rejected in favor of policy reasons supporting a change. Certainly, advocates supporting the status quo use tradition-type arguments, and advocates opposing it often rely on policy rationales that compel change. However, rhetors are not necessarily as limited in their approaches as one might initially suspect. In many instances, advocates challenging ingrained social norms have effectively argued that tradition – as they define and explain it – supports their cause. And aligning their position with tradition, and not against it, can make these arguments stronger in a system that values (perhaps even valorizes) the past. While it is by no means certain that integrating tradition into a progressive argument will guarantee success, the prevalence and desirability of aligning tradition (even if creatively defined) with contemporary legal positions is notable.

Below, we first provide background about the appeal of tradition-type arguments in both systems and identify, in each system, specific examples of how tradition arguments have been used to interpret law and identify rights. With this background and foundation in mind, we then explore how specific rhetorical strategies may be used in connection with tradition-type arguments and identify specific examples of how advocates in each society used those strategies.

3.2 Tradition and Legal Argument: Athens and the United States of America

It is easy to understand the appeal of tradition in legal argument. A legal system that values tradition supports “predictability and reliability interests” (Mazrui, 2011, p. 293), encourages social stability, and reinforces social and cultural identity. These values and interests were important to classical Athenians and remain important to modern Americans, despite the potential downside of an overreliance on tradition, which may perpetuate and reinforce a problematic status quo, thus inhibiting progress and change. Similar considerations apply for arguments based on previous decisions of the court. The foundation of a common law system is stare decisis, or “letting the decision stand.” Stare decisis requires courts to rely on precedential decisions to guide current rulings. The foundational respect for precedent represents a reliance on tradition and a reverence for the past. “Letting the decision stand” accepts the idea that we should be governed by the past and act today as we have acted before. Precedential decisions can be seen as a major cognitive contribution to thinking about current problems, as they act as “storehouses of possibly relevant analogies to our present problems, ways of thinking about such problems, and successful and unsuccessful attempts to solve them” (Krygier, 1986, p. 257).

3.2.1 The Role of Tradition in Each Society

The Athenians saw a benefit in interpreting the law in line with earlier decisions and with the intent of the lawgiver, as this served the aim of consistency and predictability of decision-making. Despite the absence of a single formal reasoning for the verdicts (which would be impossible with the several dicasts voting secretly), and the underdevelopment of detailed law reports and systematic records, the importance of public memory, and the audience’s knowledge and expertise, should not be underestimated. Precedent was still invoked by Attic forensic speakers (Harris, 2013, pp. 246–273; Lanni, 2004). Dicasts were encouraged to remain consistent with earlier decisions and practices, and litigants expected that the court decisions would set the standards for subsequent behavior.⁴ The orators would often rely on their own or logographer’s (expert speechwriter’s) knowledge and interpretation of previous rulings, but they were careful to refer to famous or recent cases that the experienced audience would be expected to know (Harris, 2013, p. 271).⁵

The tremendous importance and persuasive appeal of tradition means that advocates – then and now – on either side of an issue benefit by claiming that tradition is on their side. Indeed, the draw of tradition is so strong that claiming a practice as a “new tradition” (surely a contradiction in terms) gives weight to the practice (Mazrui, 2011, p. 292). Thus, advocates in both systems – and on both sides of a given issue – have been motivated to identify traditions that would support their positions. We can observe this phenomenon in classical Athenian speeches. Since tradition was a reference point for the rhetoric of litigants, different versions of it, or even conflicting traditions, were presented by the speakers. For example, in Against Leocrates, Lycurgus anticipated that his opponent, Leocrates, would argue that his departure to Rhodes in a time of emergency could not amount to treason because their ancestors had also evacuated Athens in the face of Persian danger before the naval battle of Salamis. Alleging that Leocrates was misrepresenting tradition, Lycurgus replied that the ancestors “did not desert the city but only moved from one place to another as part of their brilliant plan” (Lyc. 1.68–71).

American legal rhetoric developed in reliance on classical rhetoric, and it should come as no surprise that modern American advocates take a similar approach in using tradition to support their legal arguments. “Anyone who studies the classical treatises soon discovers that, with some adaptations for modern taste and modern legal practice, the classical rhetorical principles are as applicable today as they were 2500 years ago” (Frost, 2005, p. vii). Indeed, legal writing scholars are encouraged to familiarize themselves with classic rhetoric in part because modern “[c]ourt rules and common practice for appellate briefs specify the same organizational requirements as those first formulated by Corax of Syracuse” in the fifth century BC (Berger, 2010, p. 50, internal citations omitted). More controversially, recent scholars have asserted that this reliance taints contemporary American legal rhetoric because it “sits on a foundation that is White-supremacist, patriarchal, and elitist” (Berenguer et al., 2020, p. 207).⁶ That critique raises challenges for progressive advocates, who (if they accept this critique) may wonder how can they use rhetoric that is ostensibly grounded in injustice and inequality as they work to achieve social justice and equality? How can they integrate tradition into their arguments to change society?

When contemporary American advocates discuss tradition, they carefully identify and frame a tradition that supports their position and desired outcome. For example, when considering relevant “traditions” governing the use of firearms in an effort to interpret the scope of the Second Amendment in a 2008 Supreme Court case, both sides claimed that tradition supported their competing positions. In District of Columbia v. Heller, one side pointed to the individual right to self-defense as a traditional aspect of American society, noting that the “natural right” of individuals “to keep arms for their own defence [sic]” was a customary part of colonial society (District of Columbia v. Heller, Resp. Brief, 2008, p. 35). The other side drew the reader’s attention to a different tradition, asserting that “[t]he Nation’s capital has regulated guns for two centuries” (District of Columbia v. Heller, Pet’r Brief, 2008, p. 3) and summarizing the Congressional tradition of gun regulation.

The fact that both sides could plausibly claim a relevant tradition to support their positions is not all that odd. After all, there must have been contrasting definitions and conflicting traditions even at the time of enactment. Audiences might well wonder:

Whose tradition? English, American, African-American, Native-American, city, country, South, North? Tradition as expressed over what duration of time? Since the thirteenth century? Since the sixteenth? The eighteenth? Does the historical evidence relevant to a tradition end in 1791, in 1868, in 1930, or 2016? At what level of abstraction is the tradition to be drawn? And what of conflicting traditions …?

(Miller, 2016, p. 225)

The value of the rhetorical strategy lies not in its accurate identification of a relevant tradition but in its ethotic appeal to the audience. If the audience is willing to accept the reference to traditional values or beliefs, it can succeed regardless of competing or missing historical evidence to support the claim of a single tradition. For that reason, tradition arguments can be successfully used to support a wide variety of positions. One study of five terms of the Roberts Court concluded that “traditionalism has been used regularly, in many different contexts, and by many different Justices with different jurisprudential viewpoints” (Virelli, 2011, p. 63). The Court’s reliance on tradition in the 2021–2022 and 2022–2023 terms underscores its importance.

3.2.2 Using Tradition to Interpret Laws and Identify Legal Principles: Examples from Athens and the United States

Tradition, whether combined with precedent or not, has held high value in both systems as a stand-alone basis for persuasive argument. In both systems, arguments grounded in traditional values have been used both to (1) interpret the meaning of legal terms and (2) identify rights and legal principles not specifically articulated in the law.

3.2.2.1 Legal Interpretation

The “open texture” of Athenian law, meaning that quite often the law is intentionally indeterminate and vague (Hart, 1994, pp. 121–127), triggered questions of correct interpretation, a fact that allowed Attic orators to frequently resort to arguments from tradition to persuade the audience for their view as to the meaning and the scope of the law.⁷ In cases involving a dispute about the interpretation of a statute, framing an argument in a way which ostensibly aligned with Athenian tradition gave the speaker an advantage based on the belief that a practice continued over time by our ancestors is presumed to have value.

One example is the speech of Lycurgus, Against Leocrates. There, the objective facts were more or less undisputed, but whether the defendant’s acts satisfied the legal definition of “treason” was unclear. The background behind the speech is this: Shortly after the defeat at Chaeronea in 338 BCE, there was panic in Athens, with the city implementing emergency measures to prepare for what was believed to be an imminent invasion of Attica by Philip of Macedon. At this time, Leocrates sailed to Rhodes, ostensibly for trade. After leaving Rhodes, he settled at Megara, where he resided as a metic (resident alien) for six years before returning to Athens in 331. Upon his return, Lycurgus charged Leocrates and claimed that his desertion amounted to treason.

Lycurgus based his arguments on a creative interpretation of the term “treason,” using tradition as the canvas of legal interpretation. He explained that Leocrates’ specific acts were not included in the statute simply because the lawgiver could not anticipate such an outrageous scenario, which was far worse than any of the activities he listed in the law (Lyc. 1.9). This fact alone rendered Leocrates liable for the offense. To prove this wide scope of the statute, Lycurgus attempted to discern the Athenian traditional values intentionally betrayed by Leocrates that amounted to treason (Lyc. 1.1–2). These values of “Athenian-ness” were evident in the list of offenses provided in the law and the previous decisions of the court (e.g., Lyc. 1.52), but also in the Athenian tradition: the conduct of the ancestors (Lyc. 1.14, 127), the oaths (Lyc. 1.76, 80), and the literature (e.g., Lyc. 1.100–109). By reference to multiple examples from Athenian history, Lycurgus asked the dicasts to “consider your [their] traditions and opinions on this matter” (Lyc.1.75).⁸ He contrasted Leocrates’ behavior with their ancestors’ in similar circumstances and wondered: “Would any of these men of old have perhaps tolerated such a crime? Wouldn’t they have stoned to death the man who brought shame on their own courage?” concluding that: “It would be the most terrible thing of all if your ancestors had the courage to die for your city’s reputation, but you do not punish those who cover it in shame” (Lyc. 1. 82). Pointing to the harshness with which previous panels punished these crimes (Lyc. 1. 111), he urged the dicasts not to fall below the standards set by the ancestors (Lyc. 1.116), reminded them that it is not in their “nature or traditions to cast a vote that is unworthy” of them, and urged that it was their “traditional duty” to put Leocrates to death (Lyc. 1. 123).

Lycurgus lost the case by a single vote. However, his innovative interpretation of treason, framed by reference to Athenian tradition, had substantial impact and shows how Athenian orators used tradition and traditional values to interpret a general term and identify specific acts encompassed within that term.

American advocates have used similar approaches in American constitutional argument. For example, as mentioned above, advocates relied on traditional customs to define the scope of the Second Amendment right to bear arms in Heller. The facts in Heller revolved around a DC law that prohibited individuals from possessing handguns in the home (District of Columbia v. Heller, 2008). A special police officer, who was authorized to carry a handgun while on duty, sought to force the city to allow him to lawfully keep his firearm at his home. The police officer argued that the Second Amendment’s right to “bear arms” provided an individual right for a single person to keep and use arms for lawful purposes such as individual self-defense (District of Columbia v. Heller, Resp. Brief, 2008); in contrast, opponents argued that the Amendment’s language referring to the right to bear arms in the context of “a well-regulated militia” meant that the right should be constrained to connection with service in a militia (District of Columbia v. Heller, Pet’r Brief, 2008). If the former were true, then the DC law banning handgun possession in the home had to be evaluated with the level of scrutiny appropriate for a law impinging on Constitutional rights (District of Columbia v. Heller, 2008, p. 628). If, instead, the officer’s individual Constitutional rights were not impacted, a lesser degree of scrutiny would be appropriate in assessing the law. Both advocates relied on tradition to persuade, although each focused on different aspects and sources within their arguments; those aspects and sources were carefully chosen to show that a decision in their favor would be consistent with tradition as they framed it.

The advocate for the police officer, who ultimately prevailed in this argument, drew the Court’s attention to traditional customs. The brief explicitly focused on the idea that an individual right to self-defense was a traditional aspect of American society, noting that the natural right of individuals to keep arms for their own defense was a customary part of colonial society (District of Columbia v. Heller, Resp. Brief, 2008). Referring to the Supreme Court’s 1997 articulation in Washington v. Glucksberg that the fundamental rights protected by the Constitution are those “rooted in the traditions and conscience of our people,” the police officer’s attorneys argued that interpreting the Second Amendment as an individual right was appropriate because this Amendment, properly interpreted, protects “the most fundamental rights of all – enabling the preservation of one’s life and guaranteeing our liberty” (District of Columbia v. Heller, Resp. Brief, 2008, p. 57, internal citations omitted).

And these arguments worked, even though (as detailed in the following section) the opposing party also argued that tradition supported its position. The Court’s opinion, written by Justice Scalia, explicitly accepted not only the officer’s position but also the basis for that position as grounded in tradition. The Court agreed that the right of the people to bear arms was protected in the Second Amendment in part because it protected a preexisting traditional right, one that had become “fundamental” by the time of the country’s founding (District of Columbia v. Heller, 2008, p. 594). The Court referred to both tradition and text, noting that “[t]here seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms” (p. 595). The Court also relied on specific historical traditions and customs to support the position about the meaning of the words and to provide specific substance to the term “bear arms.”⁹

The Heller case illustrates how tradition-type arguments can be utilized by each side in the briefs and by the Court in its opinion deciding the case. But it is by no means the only illustration of this point. Advocates asserted similar arguments in the more recent case of New York State Rifle & Pistol Association v. Bruen (2022), which was argued before the Supreme Court in November 2021. Bruen focused on whether New York’s requirement – that those who wished to carry concealed firearms must obtain a special license – improperly burdened Second Amendment rights. There, advocates on both sides similarly argued that tradition and history supported their respective positions.¹⁰ Unsurprisingly, in its decision, the Supreme Court also relied on tradition and history as part of its rule and rationale, even elevating their role beyond what was articulated in Heller.¹¹ The Court in Bruen found that the state’s regulation did not pass Constitutional muster. But even if it had found in favor of New York, one imagines that the Court’s focus would have been on history and tradition, using those forces to explain why relevant traditions of firearm regulation justified the restriction.

3.2.2.2 Identification of a Particular Right or Legal Principle

In addition to using tradition to interpret the meaning of a particular law, speakers in Athenian courts also used tradition to argue that a particular right or privilege existed within the law. For example, Athenian legal tradition provided that no person could be put to death without a trial (Carawan, 1984). Although certain criminal procedures, such as apagoge (summary arrest) and endeixis (denunciation), appear to have permitted the immediate execution of a criminal caught in flagrante delicto and confessing his guilt (Hansen, 1976), by the latter half of the fourth century BCE magistrates would have been very reluctant to condemn the accused to death without trial (Carawan, 1984, p. 121), thus acknowledging the sovereign jurisdiction of the courts applying this norm. This right to trial was linked with the democratic tradition and was often contrasted to the oligarchic practice of execution without a hearing.¹²

In Against Aristocrates (Dem. 23), the prosecutor, Euthycles, accused the defendant of proposing an illegal decree granting special protection for the general Charidemus. The main ground for the decree’s illegality, according to the questionable interpretation offered by the speaker, was that it deprived any person who might kill Charidemus for any reason, even accidentally or lawfully, of the right to a trial, and subjected that person to seizure and immediate retribution by anyone (Dem. 23.22–81). Arguing for the need to provide anyone accused with a fair trial due to the Athenian commitment to the presumption of innocence (Dem. 23.25–26, 29, 36), the speaker analyzed relevant statutes which were directly violated by the decree and, taken together, revealed the underlying principles of Athenian law against which this proposal should be evaluated. Firstly, since homicide was an offense that incurred pollution, namely a traditional religious belief in the impurity of the killer which could bring disaster to his relatives or the community, the lawgiver was “concerned about protecting the city’s respect for religion” (Dem. 23.25) and thus granted the right to trial to ensure that the person convicted and put to death is indeed the perpetrator. Secondly, the Athenian commitment to the rule of law precluded the option of taking the law into one’s own hands and dictated the surrender of the suspect to the relevant officers; as the speaker suggests, “it certainly makes the greatest difference whether the law or a personal enemy has the power to punish” (Dem. 23.32). Thirdly, the decree attempted to abolish the powers of the most respected Athenian courts with jurisdiction over cases of homicide (Dem. 23.65–81), which had its roots in old stories handed down by oral tradition involving gods and mythical heroes (Dem. 23.66–67, 81). Therefore, ostensibly, by allowing execution without trial, the decree violated not only existing statutes but also the underlying traditional principles of Athenian law. The speaker thus used tradition to identify a substantive right within the law that had not been specifically identified by the law itself.

We can identify a similar use of tradition in the modern American legal system, when advocates and jurists explicitly refer to American traditions to find (or fail to find) a fundamental right, such as a due process right within the Fourteenth Amendment. In many instances, lawyers have relied upon long-standing customs in American society to support an assertion that a fundamental Constitutional right exists. For example, in the 1997 Washington v. Glucksberg case, the Court used a “backdrop of history, tradition, and practice” to decide whether there was a fundamental right to assisted suicide (Washington v. Glucksberg, 1997, p. 719). Chief Justice Rehnquist noted that that “we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition” (Washington v. Glucksberg, 1997, pp. 720–721). In Glucksberg, the Court refused to find a right to assisted suicide because it found no American custom supporting a tradition of assisting death, even for terminally ill patients. Instead, the Court noted the country’s “constant and almost universal tradition that has long rejected the asserted right” (p. 723) and followed that tradition by rejecting the proposed right as well. In contrast, in the 1977 case of Moore v. City of East Cleveland, the Court relied upon a “venerable” social custom “of uncles, aunts, cousins, and especially grandparents sharing the household along with parents and children” (Moore v. City of East Cleveland, 1977, p. 504) when it found that a city could not constitutionally criminalize multiple generations of a family for living together in a dwelling limited to a “single family.” And in the highly controversial 2022 Dobbs v. Jackson Women’s Health Organization decision, the Court took the unusual step of overturning its prior decisions on abortion, stating its “inescapable conclusion … that a right to abortion is not deeply rooted in the Nation’s history and tradition” (Dobbs v. Jackson Women’s Health Organization, 2022, p. 250).

The intersections between American and Athenian uses of tradition are not limited to using a specific historical custom to interpret the law. Both systems also have asserted original intent of revered historical figures as a persuasive argument, even when that intent may be difficult or even impossible to ascertain and thus may be available to both sides in an argument. In classical Athens, the evocation of the authority of the lawgivers, such as Solon and Draco, sought to reveal the timelessness and merit of Athenian laws, making each verdict an act of historical importance and a continuation of a respected tradition.¹³ Lawgivers of the past personified the Athenian traditional norms of behavior and served as the benchmark for the proper conduct of subsequent legislators.¹⁴ A commonplace in Athenian forensic rhetoric provided that the correct meaning of the law in accordance with Athenian traditional values could be discerned by reference to the ostensible intent of the lawgiver (Adamidis, 2017a, pp. 186–187; Gagarin, 2020b, p. 37).¹⁵ Although discerning the real intent of these historical figures was almost impossible, litigants quite often referred to it as if they knew it (and presented it, persuasively, in a way that supposed that the audience knew the original intent too).¹⁶

Similarly, to persuade the audience as to the validity of their interpretation of the law, Athenian advocates relied upon the general underlying Athenian values encapsulated in the laws and connected those explicitly to the alleged beliefs of quasi-mythical figures. In the speech Against Athenogenes, the speaker Epicrates, in an effort to nullify a contract, contended that the law required that for agreements to be valid they must also be just (Hyp. 3.13). To prove the existence of such an underlying principle, Epicrates offered a series of (remotely relevant) laws.¹⁷ Claiming that this principle is endorsed by the lawgiver, Epicrates concluded that “Solon believed that even a decree that was legally proposed should not override the law; but you [Athenogenes] expect even unjust contracts to override all the laws” (Hyp. 3.22).

In the American system, advocates and jurists similarly refer to the intent of respected historical figures to support their interpretation of constitutional words and phrases. The briefs and opinion in Heller provide us with an example of this approach. As noted above, the advocates there on both sides of this case referenced historical customs to bolster their arguments. Both sides also referenced historical figures. The winning brief relied extensively on lawgiver intent, spending considerable time parsing through historical documents to show that “the Framers” supported this interpretation of the Amendment (District of Columbia v. Heller, Resp. Brief, 2008, pp. 19–40). And that argument appealed to the Justices in the majority. The Court’s majority opinion reviewed a variety of historical sources to identify the meaning of the Second Amendment’s words to the public at the time of ratification and through the nineteenth century (District of Columbia v. Heller, 2008, pp. 581–619). It also referenced well-known and respected Founding Fathers, including Thomas Jefferson and James Madison. In doing so, the argument invoked the ethical authority of honored heroes of our cultural past.

Advocates’ confident assertion of historical intent allows them to persuasively suggest that the audience shares a knowledge of the revered lawgivers’ intentions, based upon the traditions of the past. The views of honored historical figures, like identification of longstanding customs, can often be used to support either side of an argument. In Heller, the losing side similarly relied on writings of historical figures to demonstrate that the Framers intended that the amendment comprise a right of keeping arms only as related to militia service, not as an individual right (District of Columbia v. Heller, Pet’r Brief, 2008, pp. 17–35).

Moreover, assertions about the intentions or values of respected historical figures can be made even without specific evidence relating to specific figures.¹⁸ Just as Athenian advocates could probably not have known the true intentions of Solon or Draco, American advocates face a similar situation and employ a similar approach when they make general assertions about what “the Founders” or “the Framers” intended. Rather than attempting to identify a specific intention of a particular historical person, these arguments seek to appeal to the cultural and traditional memory of revered historical figures. Jack Balkin offers, as an example of an argument invoking “cultural memory” (Balkin, 2013, p. 676), the concurring opinion of Justice Louis Brandeis in the 1927 Supreme Court case Whitney v. California. There, Justice Brandeis referred to “those who won our independence” (Whitney v. California, 1927, p. 375) to support his argument that only speech that presented a “clear and present danger” should be punishable. In referencing “those who won our independence” rather than specific individuals who wrote the Constitution, Brandeis appealed to cultural memory.¹⁹ As Balkin notes, arguments that conflate different groups or “appeal to the Founders and Framers as an undifferentiated whole” (Balkin, 2013, p. 677) are arguments grounded in tradition and American cultural memory rather than actual assertions about specific intent of particular lawgivers. For the purpose of the argument, it does not matter whether “the Founding generation disagreed about protecting politically unpopular speech, whether some of the Founders were selective in their support of free expression, or whether some members of the Founding generation actually wanted to suppress particular dissenters” (Balkin, 2013, p. 678). What matters is the ethos-based appeal to an understanding of cultural memory of the group, a narrative about the origins of the country and the values of the people who founded it, and a sense of tradition of “who we are” as Americans. Advocates’ confident assertion of historical intent allows them to persuasively suggest that the audience shares a knowledge of the revered lawgivers’ intentions, based upon the traditions of the past.

3.3 Tradition and Rhetorical Strategies

In our work thus far, we have sought to provide foundational information about the relevance and use of tradition-type arguments in classical Athenian and contemporary American systems. In this section, we turn to rhetorical strategies accessible to advocates in classical times and today. In both systems, advocates have used specific rhetorical strategies to effectively develop tradition-based arguments. These strategies include a deliberate focus on shared identity and the development of an attractive narrative integrating the historical arc of the audience’s culture. Using these tools creatively and wisely has enabled lawyers and jurists to argue that tradition actually supports apparently non-traditional causes such as same-sex sexual activity, coeducational military education, and even same-sex marriage.

3.3.1 Rhetorical Strategies: Shared Identity and Narrative

By highlighting shared identity between the orator and the audience based on shared values and traditions, an advocate can simultaneously forge connections with the audience and, by placing opponents outside that shared identity, marginalize those opponents (Adamidis, 2024).²⁰ Interestingly, the varying “traditions” that can be identified and exploited result in a rhetorical situation where both sides may claim the “tradition-based” position, even as they argue for different positions. This provides an opportunity for creative modern advocates to use tradition to promote outcomes that might not immediately be identified as tradition, in the sense of long-standing custom. Although the American legal framework, as it evolved and adapted from classical times to the present, has been criticized as inherently Western-centric, patriarchal, and biased,²¹ contemporary advocates can find creative ways to use rhetorical techniques for social justice and equality.

The American legal system’s foundational reliance on stare decisis provides a default preference for tradition, in the sense that precedential decisions govern our current decisions. No court – or lawyer – is starting from scratch in a current case; all must contend with prior rulings on similar questions and build upon them. Advocates know that arguing to overturn precedent is much more difficult than arguing that their case is consistent with a different view of that precedent, either because the cases are distinguishable or because the rule of the prior case can be framed in such a way as to allow for a favorable decision in the current matter. Even the Supreme Court, which has the ability to overturn its own decisions as well as those of lower courts, is never eager to do so. While stare decisis is not an inexorable command, it is a critical cornerstone of our system. One need only examine the reaction to Dobbs v. Jackson Women’s Health Organization (2022), in which the Supreme Court overturned two prior rulings on abortion, to understand how unusual such a step was. And one need only review the Dobbs opinion to see how painstakingly the Court tried to explain why such action was appropriate.

Just as clever advocates find ways to frame precedential decisions so that they appear consistent with a favorable ruling in the current situation, advocates can also frame “tradition” so that it supports their position. It may be more difficult for advocates promoting change and challenging the status quo to incorporate tradition into their arguments, but it is arguably even more important for them to do so to combat the default preference for the status quo that results from our legal system’s structure.

One useful rhetorical strategy for these advocates is what Kenneth Burke (1950) called identification, a tool by which rhetors find “commonality between a rhetor and an audience” (Herrick, 2009, p. 10). Effective advocates assess their audience and determine how to align the audience’s interests and values with those of their client; this rhetorical strategy dates back to Plato’s recommendations in the Phaedrus that a speaker must identify “the kind of discourse suitable for each kind of soul” and “order … and embellish … his discourse accordingly” (Plato, 1921, p. 277). Using tradition allows advocates to create a sense of shared identity between their audiences, honored and respected authorities or practices, and the current client. Of course, if the audience does not “identify with the country’s traditions, arguments from ethos and tradition will have little purchase” (Balkin, 2013, p. 673). Thus, the advocate must choose the tradition carefully. For example, an advocate on one side might rely upon a specific cultural custom, while the opposing side favors a broader political concept as the relevant tradition. Each advocate can identify and use a tradition argument, depending on which one supports the client’s position and with which one the audience is likely to identify.

In addition to creating shared identity, effective advocates in both systems have constructed narratives that place the past tradition and the current position in a historical story that their audience will be willing to accept (Gagarin, 2003, p. 207). An argument grounded in tradition is, by definition, grounded in history: the story of our past. As such, these arguments are particularly amenable to use of narrative techniques to increase their persuasive appeal (Balkin, 2013, p. 680). A variety of stories can give meaning to a single reality.²² An effective advocate can construct a narrative that will trigger the audience’s recollection of “master stories or myths” and serve as “a template, or path, for a wide variety of other similar stories to follow” (Sheppard, 2009, p. 261).²³ The narrative framework thus infuses meaning into the current situation, as the audience experiences not only the specific story of the case at bar, but also perhaps subconsciously remembers other, similar stories, and experiences the emotional connection from these other stories in a way that can both draw upon and “reinforce traditional, cultural, and societal values” (Sheppard, 2009, p. 262). By identifying people or traditions in the past that the audience will respect, advocates identify the “right side of history, as judged by the present” (Balkin, 2013, p. 684) and suggest that siding with their client today will align the current decision-maker with that right side. And just as identification can connect the audience to or away from specific cultural practices and connection with a conceptual political tradition, these narratives can be used to show the audience how either following or abandoning a specific practice may be desirable. For either approach, the advocate can selectively choose honored authorities for further positive identification (Balkin, 2013). Rhetorical choices matter, for both advocates and jurists. For example, progressive Constitutional scholar Kate Shaw, in the podcast Strict Scrutiny, noted Justice Ketanji Brown Jackson’s rhetorical choice to use the term “‘framers,’ “without modification” to describe the authors of the reconstruction amendments, reminding us that they should occupy the same place in our kind of constitutional constellation as the people who drafted the original Constitution” (Litman et al., 2023).

Athenian orators used both techniques successfully in classical arguments, and American advocates have followed their lead. Both sets of advocates employed ethos as they created shared identity and pathos as they employed narrative to argue either that they were acting consistently with historical tradition or, more inventively, to identify a narrative in which a broader tradition was evolving and the advocate’s position was on the right side of history. The latter approach allows innovative advocates to ostensibly use tradition as they validate outcomes that are inconsistent with – or even contradictory to – long-established social customs.

3.3.2 Using Tradition as a Rhetorical Tool: Examples from Athens and the United States

Athenian and American advocates have often evoked tradition to argue that their position is on the right side of the historical narrative with which the audience should align. In the adversarial setting of Athenian courts, tradition arguments were often embedded in the narrative as the focal point of the litigants’ speeches, in an effort to create shared identity with the audience and to marginalize the opponent through the projection of a certain ethos.²⁴ Dicasts expected that the speakers would strictly adhere to widely accepted traditional norms of behavior, and a person who understood himself as an integral part of the community perceived these norms as the benchmark of ethical conduct.²⁵ Therefore, the speaker whose actions or arguments were artfully presented as consistent with tradition had more chances to persuade the audience of their expediency.

The debate about awarding a crown to Demosthenes offers insight into this use of tradition, namely how the rhetorical presentation of different versions of it provides the benchmark for the evaluation of current practice. In the spring of 336 BCE, an Athenian citizen named Ctesiphon proposed a decree for a golden crown to be conferred by the Athenian people to Demosthenes claiming that he “continually advises and acts in the best interests of the people” (Dem. 18.57).²⁶ In the ensuing debate about whether Demosthenes should receive such a crown, both Demosthenes and the plaintiff, Aeschines, used different interpretations of tradition to suggest that their position was the correct course of action based on how the historical narrative should flow.

First, Aeschines attacked Ctesiphon’s proposed decree. Aeschines focused both on the illegality of the motion and on an assessment of Demosthenes’ political career (Aeschin. 3.9–48, 54–167).²⁷ After a detailed grim review of Demosthenes’ disastrous policies which eventually led Athens to its defeat by Macedon, Aeschines contrasted his opponent with the true public benefactors of the past who made Athens great and whose deeds indicate what is the “right side” that the dicasts must take. In light of this, he asked them to be associated with the ancestors, instead of Demosthenes’ cowardice, and to imagine that the heroes of the past stand before them on the platform asking for justice against Demosthenes’ plotting and treason (Aeschin. 3.247, 257–259).

Demosthenes, in reply, claimed that the right side of history, as indicated by Athenian tradition, was to resist tyranny even against the odds, not to erase the noble and just achievements of the ancestors (Dem. 18.63) by submitting voluntarily to Philip (18.68). Athens always fought for the first prize in honor and glory (18.66) so “the only remaining course of action was to oppose on the side of right everything that he [Philip] did to wrong you [Athenian dicasts]” (18.69). Regardless of the outcome, “both individual citizens and the city as a whole must ever strive to act in accord with the noblest standards of our tradition” (18.95; cf. 96–99, 101, 200). Surrendering “was not part of the Athenian heritage” and “since the beginning of time, no one has ever been able to persuade the city to side with the powerful but unjust and to find safety in servitude” (18.203, 204). Demosthenes’ policies resembled “those made by the eminent citizens of the past and have the same goals as did theirs” (18.317). Right from the beginning, the path he chose was “straight and honest: to foster, to enhance, to remain true to the country’s honor, power and prestige” (18.322). According to this approach, awarding Demosthenes the crown would be consistent with the desired historical narrative and the continued story of who Athenians were, consistent with the past.

Athenian advocates acknowledged the value of tradition as the benchmark for the evaluation of current practice, and often evoked it as a strong argument for resisting or advocating change (or, more accurately, a return to a more commendable approach taken in the past). In lawsuits against purportedly unlawful legislation, prosecutors argued that they were defending the city’s existing laws against fresh statutes which, if endorsed, would undermine the integrity of the legal system and the Athenian traditional values.²⁸ In fact, contrasting the reverent lawgivers of the past and their well-tried, old-established laws against a current lawgiver introducing a fresh, inexpedient statute was a rhetorical commonplace which reveals the Athenian belief in and the rhetorical force of tradition.²⁹ In a prosecution against an inexpedient law, Demosthenes contended that the law proposed by Leptines violated the spirit of Solon’s old laws (Dem. 20.89–104). Observing that the law is “far removed from the city’s character,” Demosthenes argued that “it is more advantageous both to you (Athenians) and to Leptines for the city to persuade him to adopt its ways than for it to be persuaded by this man to adopt his ways” (Dem. 20.14; cf. 20.111).

On the other hand, speakers criticized the purported deviation of current practice from tradition and recommended a return to a previous, more expedient, approach. In Aeschines’ speech Against Ctesiphon and in Demosthenes’ speech Against Aristocrates, the speakers questioned the current readiness of the Athenians to distribute honors to ostensibly unworthy individuals. Aeschines claimed that the whole practice was discredited by “giving crowns out of habit, not on purpose” as opposed to “those days when distinctions were scarce in our city and the name of virtue was an honor” (Aeschin. 3.178; cf. 3.181–189, 231).³⁰ Similarly, Demosthenes argued that “[m]en in the past used to grant awards to citizens in a way both noble and in their interest, but we do it in the wrong way” (Dem. 23.199). In the speech On the Dishonest Embassy (Dem. 19), Demosthenes encouraged the dicasts to live up to the standards of their ancestors who considered matters of corruption a capital crime (19.269–270). Offering a series of examples showing how “repugnant and harmful” corruption was considered by them, Demosthenes criticized the current lenient approach of the courts (19.275; cf. 23.204–206). By helping the dicasts identify with revered Athenian traditions, these speakers used the rhetorical strategy of creating a shared identity with the audience to further their persuasive arguments.

In addition to being used as a rhetorical tool to highlight the shared identity between the orator and the audience, arguments from tradition could be employed to marginalize the adversary and cast him as an outsider.³¹ If a speaker could show that his opponent was breaching Athenian traditional norms, this would be probative of his propensity to break Athenian law. For example, in Aeschines’ charge (dokimasia rhetoron) against Timarchus, challenging his fitness to address the Athenian Assembly due to having prostituted himself, the speaker framed his arguments within a wider context by reference to the longstanding Athenian values of decency, restraint, shame, and honor. He contrasted Timarchus to the great legislators of the past, Solon and Draco, who showed a “great concern for decency” (Aeschin. 1.6), and alleged that Timarchus’ way of life was contrary to all their laws (1.8–32, 37) and Athenian patterns of behavior (1.25–26, 182–184). Consequently, Aeschines told the court that considering “the view of your fathers on the issues of shame and honor” (1.185), it would be unthinkable to “acquit Timarchus, a man guilty of the most shameful practices” (1.185) and, thus, “overturn the whole educational system” (1.187).³²

Americans have also relied upon shared identity in their tradition-based arguments. In the section above, we noted that American advocates used tradition in arguments that relied upon long-standing customs in American society, or assertions about the historical and traditional meaning of words or the intentions of revered historical figures. Advocates supporting the status quo find natural alignment with tradition-type arguments, and it is not surprising to find tradition-type arguments in the work of those advocates. What may be surprising, however, is to find the instances where advocates use tradition-type arguments to creatively support positions that are not, at least on an obvious level, “traditional” at all. For example, American advocates have effectively employed the concept of tradition in argument grounded in political traditions and a narrative about the historical arc of the country. When focusing on a more concrete, specific, longstanding custom would suggest an undesirable outcome, lawyers and jurists have chosen a more general, overarching principle that could support the desired outcome and yet still be classified as tradition within an evolving historical narrative.³³ Using narrative reinforces the positive identity created: The narratives “explain who Americans are by explaining where they have come from and where they are going” (Balkin, 2013, p. 680). In this way, clever advocates have used the rhetorical tactic of marginalizing the outsider to create arguments that end up bringing “out-groups” into the protection of American anti-discrimination law.

This type of tradition argument, which is less intuitively obvious than the cultural tradition argument, invokes a particular, often evolving, tradition within the political life of the country. The evolving tradition is often more conceptual and broad than a cultural custom (e.g., nondiscrimination or privacy), usually relates to important cultural aspects of American society as reflected in the law, and asks the audience to identify a tradition of who we are as a people moving through history: a more general principle to which Americans are committed, rather than a specific act or practice that has been customary.³⁴ These tradition arguments “often call for us to remember what ‘we’ – here a transgenerational subject – fought for, what we stand for, what we promised we would do, and what we promised we would never let happen again” (Balkin, 2013, p. 684). This type of argument encourages the audience to view the past and determine which position ended up on the right side of history and follow the approach and principles of that position. Advocates making such an argument might invoke the views of particular Founding Fathers, if interpreting words of the Constitution (while ignoring the views of others), or might identify with social movements that, even though unpopular at the time, have come to be seen as correct in the present.

This type of narrative tradition-based argument can actually be used to advocate for turning away from tradition in the sense of a customary practice. For example, consider the progression of arguments in two Supreme Court cases focused on same-sex activity. In the 1986 Bowers v. Hardwick decision, the Court relied on tradition in the form of a long-standing custom to reject a gay rights challenge to state laws criminalizing sodomy. In that case, the Court considered a Georgia statute that criminalized “any sexual act involving the sex organs of one person and the mouth or anus of another” (Bowers v. Hardwick, 1986, p. 188 n. 1). Michael Hardwick was charged with violating the law. Hardwick’s attorneys argued that the statute was unconstitutional because it violated Hardwick’s fundamental right to consensual intimate activity; they noted that America’s “constitutional traditions have always placed the highest value upon the sanctity of the home against government intrusion or control,” particularly with respect to “individuals’ most intimate affairs” (Bowers v. Hardwick, Resp. Brief, 1986, p. 4). The Court found that the statute was constitutional. In doing so, the Court framed the legal issue as “whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time” (Bowers v. Hardwick, 1986, p. 190). The Court explicitly noted that “to claim that a right to engage in such conduct is ‘deeply rooted in this Nation’s history and tradition’ or ‘implicit in the concept of ordered liberty’ is, at best, facetious” (p. 194). Because the court found that the traditional custom was to ban such conduct, it rejected the assertion that individuals had a “a fundamental right to engage in homosexual sodomy” (p. 191).

But less than twenty years later, in the 2003 case Lawrence v. Texas, the Court overturned the Bowers case – which relied on tradition as a primary rationale for its decision – while still citing tradition as a rationale. The Court considered – and found unconstitutional – a Texas statute criminalizing “deviate sexual intercourse with another individual of the same sex” and defining such “deviate” intercourse as including “any contact between any part of the genitals of one person and the mouth or anus of another person” (Lawrence v. Texas, 2003, p. 563). Lawrence mirrored Bowers in that a man who had been convicted under the law for engaging in consensual same-sex activity in his own home challenged its constitutionality. But the Court now found that this behavior was protected by the Constitution.

How could the Court justify overturning Bowers, which relied on long-standing custom to reject a right of same-sex intimate activity in a situation where two consenting adults engaged in such in the privacy of their own homes, in a decision that claimed to be justified by tradition? It could do so in part because its framing of the type of relevant tradition in Lawrence was, in important ways, different from the longstanding custom upon which the Court initially relied in Bowers. Writing for the Court in Lawrence, Justice Kennedy asserted that the Bowers Court had “misapprehended the claim of liberty presented to it” (Lawrence v. Texas, 2003, p. 567). Although Kennedy did argue that the prior decision may not have been entirely correct in finding a long-standing custom disfavoring same-sex activity,³⁵ the Lawrence decision did not simply assert that the prior decision got the tradition wrong. Instead, it suggested that a different and broader tradition was more relevant. Justice Kennedy declined to focus on a particular custom disfavoring same-sex sodomy, but instead noted that “in our tradition the State is not omnipresent in the home” (Lawrence v. Texas, 2003, p. 562) and identified as a more general tradition of principle and policy: the traditional right of citizens to be free from government interference in private matters in their homes. Kennedy also identified an evolving tradition or “emerging recognition” about intimate relationships generally, noting that the “laws and traditions in the past half century are of most relevance here” (pp. 571–572). Because those more recent traditions “show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex” (pp. 571–572), Kennedy concluded that the traditions upon which the Court relied in 1986 were not dispositive.

One might argue, as Justice Scalia did in his Lawrence dissent, that an “emerging awareness” is not a tradition at all, at least by the definition of a long-standing custom (Lawrence v. Texas, 2003, pp. 597–598). Justice Kennedy’s opinion appeared at some points to concede this point by noting that “[h]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry” (p. 572, internal citations omitted). But by framing the issue as an “emerging recognition” regarding intimate relationships rather than simply a “new practice,” Kennedy was able to draw support from history and tradition despite the apparent tension (or even contradiction) inherent in the concept of what might otherwise be framed as a “new tradition.”

The contrasting opinions of Justice Ginsburg (writing for the Court majority) and Justice Scalia (dissenting from the Court’s decision) in the 1996 case United States v. Virginia offer an even clearer example of one type of tradition argument – long-standing custom – pitted against another – narrative historical arc and evolving political identity – with evolving political identity carrying the day for social justice. There, the Court found that Virginia Military Institute’s (VMI) practice of excluding females and maintaining single-sex education exclusively for male students violated the Constitution. To reach this decision, Ginsburg’s opinion (for the Court majority) had to overcome a tradition argument of the first type: longstanding custom. Justice Scalia, in his dissenting opinion, focused on the “long tradition, enduring down to the present, of men’s military colleges supported by both States and the Federal government” (United States v. Virginia, 1996, p. 566). Justice Ginsburg, writing for the majority, effectively countered the longstanding cultural tradition of single-sex education by identifying a new and evolving tradition that represented the country’s political movement toward equality. First, she identified a negative tradition aligned with the single-sex education endorsed by VMI, noting that “our Nation has had a long and unfortunate history of sex discrimination” (p. 531, internal citations omitted). Then she reviewed the history of other American colleges and universities (including within Virginia) who had shifted from single-sex to coeducational (pp. 536–538). Towards the end of her argument, she identified the new political tradition, dating from “a generation ago,” of equal treatment for men and women as a counter to the longstanding custom of all-male military education (p. 556). “A prime part of the history of our Constitution,” Ginsburg concluded, “is the story of the extension of constitutional rights and protections to people once ignored or excluded” (p. 557, internal citations omitted). Justice Ginsburg’s identification of the political tradition of non-discrimination thus trumped the cultural tradition argument offered by Justice Scalia.³⁶ In this view, non-discrimination on the basis of sex represents who Americans are and who they are becoming.

Why, and when, might progressive advocates choose to rely on tradition as a basis for support even as they argue for social change? Reliance on tradition alone might be ineffective or even appear disingenuous in an argument to change laws related to problematic social norms. In some cases (such as certain constitutional inquiries), references to tradition and history are unavoidable because of the legal rules already in place. In others, even if not absolutely necessary, such references may be strategically desirable. Creative advocates understand that weaving multiple types of argument together create a stronger argument overall. Including backward-looking tradition-type arguments alongside forward-looking policy arguments can lessen opposition to action that might otherwise be perceived as unbridled judicial activism or overturning (as opposed to reframing) settled precedent.

Clever advocates in the past have integrated the narrative approach to their advantage while also relying on shared identity. The Commonwealth of Virginia’s amicus brief in the 2015 case Obergefell v. Hodges demonstrates both these techniques. In advocating on behalf of the petitioners who wished the Supreme Court to find a fundamental right to same-sex marriage, Virginia had to overcome a specific cultural tradition identified by the opposing side: the longstanding custom of marriage as composed of a man and a woman rather than two members of the same sex. To do so, Virginia explicitly identified (and invited the Court to identify) with “the right side of this issue” despite its own prior positions on the “wrong side” of cases such as Brown (on school desegregation) and Loving (on interracial marriage) (Obergefell v. Hodges, Brief of Commonwealth of Virginia, 2015, p. 6). By referencing cases in which a long-standing custom had been cited as sufficient rationale for racial discrimination, Virginia reminded the Court that one type of tradition argument might place the Court in a position that would later be overturned.

Virginia submits this amicus brief in support of reversal because its experience on the wrong side of Brown and Loving, and on the right side of this issue, has taught us the truth of what the Court recognized in Lawrence v. Texas: “those who drew and ratified … the Fourteenth Amendment” chose not to specify the full measure of freedom that it protected because they “knew [that] times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.”

(Obergefell, Brief of Commonwealth of Virginia, 2015, p. 6)

With that single sentence, the brief told a story of regret and redemption: Virginia had been wrong, had seen the error of its ways, and now sees – and shares – the true path that is aligned with a correct political tradition of non-discrimination. This narrative plays upon a stock story of redemption. If the Court sides with Virginia, it positions itself on the right side of history. Virginia also reminded the Court of past instances where the Court had initially made a decision that it later reversed, by referencing Lawrence’s reversal of Bowers. And it offered an alternative tradition to the one proposed by the opposing party (the traditional view of marriage as one man and one woman), by framing the traditional right as the right of an individual to marry (Obergefell v. Hodges, Brief of Commonwealth of Virginia, 2015, p. 17).³⁷

Was it successful? The Court’s opinion in Obergefell suggests that line of argument was influential. Writing for the Court, Justice Kennedy noted that “[t]he right to marry is fundamental as a matter of history and tradition” (Obergefell v. Hodges, 2015, p. 671).³⁸ His focus on the general right of an individual to marry stood in stark contrast to the tradition invoked by the opponents to same-sex marriage: the tradition of marriage involving a man and a woman rather than two members of the same sex. Once more, a “traditional” argument had prevailed for an outcome that may have seemed, by some definitions, decidedly untraditional.

3.4 Conclusion

Incorporating tradition has been and continues to be persuasive as a strategy to enhance an argument’s legitimacy and appeal. We can identify intersections between Athenian forensic rhetoric of the fourth century BCE and American rhetoric of the twentieth and twenty-first century in the use of and reliance upon tradition. Both sets of advocates find tradition so compelling that even when they argue against a tradition (in the sense of a longstanding custom), they frame the argument as advancing a tradition (in the sense of a political tradition or principle or historical narrative). Both sets of advocates have employed ethos (in establishing shared identity) and pathos (with narrative techniques) as they try to persuade their audiences that tradition supports their position. In both systems, advocates rely upon tradition as a central tenet of persuasive argument and use it as a rhetorical battleground. And for proponents of equality, social justice, and nondiscrimination, tradition can be used as a force to propel society into the future rather than allow it to remain moored in the past. For example, an advocate might strategically choose to establish a specific view of shared communal identity to support a broader view of tradition – one that would encompass progressive views regarding equality and consideration of historically marginalized groups.

The structure inherited from classical rhetoric may not appear to lend itself to these uses. Classical rhetors might have been surprised at the outcomes. But even within a Western-centric structure that has been critiqued as hostile to contemporary notions of equality, the tools of the past can be used to create a new and more egalitarian future. And given the structure in which we operate, an advocate who chooses to neglect these tools does so at their peril; integrating them will not guarantee success, but ignoring them will increase the likelihood of failure. The power and allure of tradition has held fast for centuries and shows no sign of diminishing. Unless and until we see dramatic change in our legal system’s operation, we must embrace tradition and find strategies to incorporate it into even “non-traditional” arguments.

4 Practical Reason in Peril From Cicero to Texas Health Presbyterian

Brian N. Larson ^*

4.1 Introduction

Judging requires practical reason, in each case a decision about what to do rather than one about scientific truth (Bix, 2022, p. 14; see also Aristotle, 1934; Burton, 1989; Larson, 2019). Writing sixty years apart, legal theorists Lon L. Fuller (1946) described an “antinomy” between reason and fiat, what Francis J. Mootz III (2018) called an “in-betweenness” in judging: The conclusion that judges necessarily exercise some discretion, because their decision cannot be the results of geometric proofs and deduction. In the face of this necessity, Mootz called for judges to exercise “rhetorical knowledge,” “a practical accomplishment that achieves neither apodictic certitude nor collapses into a relativistic irrationalism” (Mootz III, 2018, p. 16).

In short, Fuller’s whole theory of law and Mootz’s in-betweenness acknowledge underdeterminacy, a state where more than one outcome is reasonably and rationally possible in many (or even all) cases. It lies between the extremes of determinacy, where there is only one possible answer and one possible way to reach it, and radical indeterminacy, where any outcome is acceptable simply as an exercise of the court’s power. Judges should thus not pretend to engage in a deductive enterprise or pure fiat, but they should instead show their work in their practical judgments by writing opinions that exhibit a reasonable route to their conclusions. The admonition is important because the argumentation in judicial opinions is often the only evidence we have of the reasoning of the judges behind them, and it is of central concern to democracy and judicial legitimacy that the arguments judges present are cogent enough to secure (at least grudging) assent of those bound by them (Bencze & Ng, 2018; Larson, 2019). This use of rhetorical invention in the law has ancient roots in the West and a family tree that leads to the founding of the United States.

Nevertheless, express appeals to rhetorical invention in law have become unfashionable since the mid-twentieth century, while the focus of much rhetoric about the functioning of law and the reasoning of judges has shifted to what I call the contemporary determinist imaginary. An imaginary is what philosopher Charles Taylor labels “the ways people imagine their social existence, … how things go on between them and their fellows, the expectations that are normally met, and the deeper normative notions and images that underlie these expectations” (Taylor, 2004, p. 23). The imaginary is “carried in images, stories, and legends,” and it “makes possible … a widely shared sense of legitimacy.”

Like most of the present, the determinist imaginary is an outgrowth of the past. During the centuries before the framing of the US Constitution, most English (and thus American colonial) law was common law, or judge-made law. On the one hand, those judges told the story that they were merely uncovering law that was already there, often on natural-law bases. On the other, it was clear that their decisions could have “discovered” quite different laws that were equally rational (if they were rational at all). Around the time of the framing of the US Constitution, Supreme Court Justice Joseph Story – whose legal treatises were widely read in the nineteenth century – seized on the view that judicial opinions could be demonstrations, much like geometrical proofs, and that legal principles could be deduced – either from natural law or from other principles (Eisgruber, 1988). A similar view reached its apex in the teaching methods of Harvard Law School dean C. C. Langdell, who purported late in the nineteenth century to derive the principles of law scientifically by induction from reading court opinions. Already at the time of Langdell, however, there were theorists pushing in a different direction. For example, Oliver Wendell Holmes Jr. argued that law was a prediction about what courts would do.¹ So the imaginary swung away from determinism during the first two-thirds of the twentieth century, with more talk of Holmes’ probabilities than of mathematical or scientific deduction and Langdell’s induction.

But the advent of modern textualism and originalism (see Hannah & Mootz, Chapter 2 in this volume) in the latter decades of the twentieth century corresponded with the new determinist imaginary. The contemporary determinist imaginary is like older claims of determinism, in that it portrays a world where there is one right answer to each legal question and, indeed, one right way to arrive at that answer.

The determinist imaginary’s stories and legends blossomed as “a series of reactions and countermobilizations from different segments of society” to the New Deal, the civil rights movement, and the Warren Court’s arguably liberal decisions (Balkin, 2009, p. 69). In that sense, the contemporary determinist imaginary is an outgrowth of conservative backlash to arguably activist, arguably liberal judging during that earlier era. But the result has been an arguably activist conservative judiciary cloaking sweeping decisions in questionable claims of certainty. In this way, determinism destabilizes the public’s understanding of judging and brings into question the legitimacy of the judiciary.

This chapter cannot describe all the antecedents, all the pernicious consequences, or even all the current manifestations of the determinist imaginary (though there are many). Rather, it presents a case study comprising two treatises and the conversation into which they can be set, along with two recent opinions in the Texas Court of Appeals and Texas Supreme Court. The case study shows how the determinist imaginary obscures underdeterminacy in the interpretation of authoritative legal texts.

The first treatise is De Inventione (Cicero, 1949), an early work of Marcus Tullius Cicero, probably the most famous orator of the ancient West. De Inventione provides a checklist for practical reasoning for the invention of arguments in legal reasoning about texts, is candid about the tensions between competing interpretations, and does not dress them in the rhetoric of determinacy. I illustrate this approach in the first part of a case study, an opinion of the Court of Appeals of Texas in D.A. v. Texas Health Presbyterian (2017; “THP I”). I then discuss Reading Law: The Interpretation of Legal Texts, the work of Supreme Court Justice Antonin Scalia and lexicographer Bryan Garner (2012). Scalia was a self-proclaimed textualist and is one of the revered figures of the new determinist imaginary. Their book employs sweeping rhetoric to portray legal reasoning as determinist. But for their work to be practically useful to advocates and judges – as it has unquestionably been – it must subtly acknowledge the underdeterminism of all its precepts. Thus, Scalia and Garner’s rhetoric about legal reasoning is part of the new determinist imaginary, but their description of rhetorical invention as legal reasoning lays bare law’s underdeterminacy.

I illustrate the consequences of Scalia’s determinist rhetoric with the second half of the case study: The Texas Supreme Court in Texas Health Presbyterian v. D.A. (2018; “THP II”) purports to resolve the same case based on an entirely questionable assessment of grammar and punctuation. Its rhetoric about legal reasoning flees from the underdeterminacy that even Reading Law must acknowledge (if only in the fine print) and imagines instead judges calling “balls and strikes” (Roberts, 2005), exhibiting the perfect reason of law, and limiting judicial discretion. I wrap up with a summary of the broader strokes of Scalia and Garner’s portrayal of the determinist imaginary and oppose it by urging a return to the tradition of practical reason that we can inherit from Cicero.

4.2 Practical Reason’s Pedigree

[N]othing at all could be done either with laws or with any instrument in writing … if everyone wished to consider only the literal meaning of the words and not to follow the intentions of the speaker.

Cicero, De Inventione ([1st century BCE]1949, 2:140)

The sort of practical reasoning available to contemporary US courts traces its origins to the ancient Mediterranean. Aristotle (2007) offered one model, perhaps in hopes of settling a debate between those who valued rhetoric and those who considered it unethical. Building on Hellenistic thinkers who were the heirs of Aristotle’s thought, Cicero’s De Inventione (1949) provided a method for interpreting texts whose meaning is uncertain, a method well familiar to many jurists of eighteenth-century England, to the framers of the US Constitution, and to American lawyers through the nineteenth century.

4.2.1 Starting a Debate in Greece

On the one side were the Greek sophists of the late fifth century BCE, teachers of rhetoric or philosophy or both, depending on who you asked. The fragments of Gorgias and the Dissoi Logoi (see Britt, Chapter 13 in this volume) illustrate the argumentative techniques of these teachers, producing arguments on both sides of any issue and arguments in the alternative (The Greek Sophists, 2003). The practical value of this type of training, and the practical reasoning of which it was evidence, could not be denied in litigious Athens during its brief experiment in democracy. On the other side was the idealism of Plato (2004, 463b) and others who decried rhetoric’s focus on winning and its failure to focus on truth. For Plato, rhetoric was a pale imitation of reason – it was “cookery” or merely a “knack.”

Mediating between the sophists and his own teacher Plato in the Ethics, Aristotle (1934, p. 337) distinguished the kind of reasoning used in geometry and the sciences, “about things that cannot vary,” from the deliberation necessary for action. Because action in the public sphere requires persuasion, Aristotle’s On Rhetoric (2007, p. 27) embraced the need for the “ability, in each [particular] case, to see the available means of persuasion”² and provided the first extant theoretical account of rhetoric in the West.

4.2.2 Cicero and De Inventione

Marcus Tullius Cicero was certainly the most famous ancient Roman orator and wrote several texts on rhetoric, including Topica, De Oratore and Brutus. This chapter deals with his early work De Inventione (Cicero, 1949). It addresses the first of the five canons of rhetoric, invention – the discovery of arguments available to the orator appearing before a tribunal – and introduces us to arguments about text, “when some doubt arises from the nature of writing” (Cicero, 1949, II.116). Though such doubts arise from several sources, I will restrict my treatment here to ambiguity and letter and intent, as they are the most salient for the discussion that follows.

For Cicero (1949, II.116), ambiguity appeared when “the written statement has two or more meanings.” He gave the example of a will where the testator required that “my heir give to my wife a hundred pounds of silver plate as desired.”³ Both heir and wife desired to select which silver plate the widow would receive. The author could have cleared matters up by saying “as desired by my heir/my wife.” Cicero offered a variety of bases for arguing on each side of the case: trying to show there is no ambiguity; the immediate linguistic context; looking at the author’s “other writings, acts, words, disposition and in fact his whole life” (Cicero, 1949, II.117); the “convenience” for the state of implementing one interpretation over the other (II.118); whether one interpretation gives a result that is “more expedient, more honourable or more necessary” (II.119); whether another law determines the outcome (II.119–120); and how the author would have worded the text were the other side’s interpretation correct (II.120).

Cicero (1949, II.121) discussed a second type of dispute about text that involves whether “the letter” – “the exact words that were written” – conflicts with the author’s intent. We can extend the previous example, assuming that the testator required that “my heir select a hundred pounds of silver plate to give to my wife.” Perhaps numerous witnesses, friends both of the testator and his wife, witnessed the testator saying – after writing his will – that he intended his wife to receive particularly a set of very valuable silver goblets, weighing some twenty pounds, that she cherished. Would this expression constrain the complete freedom that the will’s text appeared to grant the heir?

On the one hand, the advocate for the author’s intent would look outside the text of the writing itself to consider whether the author had some specific end in mind or to equitable considerations, where enforcing the language as written would have unexpected and undesirable consequences (Cicero, 1949, II.122–124). The advocate would urge against the letter on grounds that injustice would result from enforcing the letter in this instance and “that there is no law which requires the performance of any inexpedient or unjust act” (II.138); that the law requires that judges should exercise discretion; or that following the law as the other side urges would require it to be ignoble or “base” (II.140). The advocate for the author’s intent may argue “that we value the laws not because of the words, which are but faint and feeble indications of intention, but because of the advantage of the principles which they embody, and the wisdom and care of the law-makers” (II.141). Such an advocate could conclude that “the true nature of law … consist[s] of meanings, not of words, and that the judge who follows the meaning may seem to comply with law more than one who follows the letter” (II.141).

On the other hand, the advocate for enforcing the letter of the text could first argue that it is always best to follow the letter, considering the following lines of argument: Where the text is clear, it is the best evidence for the intention of the author (Cicero, 1949, II.127–128); authors know well how to draft exceptions, so they should not be inferred (II.130–131); if exceptions are allowed it is “nothing more than repealing the law” (II.131); departing from the letter of the law makes the law unpredictable (II.134). Finally, if the judge alters the law by exception, they deny the legislators or the people an opportunity to approve this version of the law.

The advocate may also seek to show that, regarding this text, it is better to follow the letter, including the following lines of argument: that this law is “of the highest importance” or “sanctity” (Cicero, 1949, II.135); or that this law “was so carefully framed, that such provision was made for every situation and proper exception” (II.135). Finally, the letter’s advocate can argue that in this case it is better to follow the letter by arguing, for example, that allowing for an exception here would create an inequitable result.

From this brief treatment, we can see that Cicero by no means saw reference to intent to be applicable only when a text was ambiguous. He acknowledged both the strength of the letter and that the strongest attack on the letter occurs when the equities favor intent. His willingness to look to extrinsic evidence in any case demonstrated his open embrace of the antinomy and underdeterminacy that letter and intent represent in this type of argument.

4.2.3 The Through-Line from Cicero to the Framers of the US Constitution

Cicero’s De Inventione was available almost continuously in the Western Middle Ages and Renaissance. The guidance in this work heavily influenced the medieval ars dictaminis and the ars notaria, the proto-legal-writing practices of Western Europe (Larson & Tiscione, 2024, p. 18). Martin Camper (2018) has noted the pervasive effect of De Inventione in arguments about texts – including functioning as the seed for hermeneutics of the Bible – in the West from that time through the sixteenth century. Nevertheless, Cicero’s ideas began to play a less prominent role after the beginning of the seventeenth century, as “influential thinkers of the day insisted that empirical evidence, mathematics, and strictly logical premises and proofs were the only suitable means by which to discover new knowledge” (Camper, 2018, p. 5). So, for example, Hobbes and Locke derided the abuses of rhetoric (Andrus, Chapter 6 in this volume; Larson & Tiscione, 2024, p. 20). The apotheosis of the movement to make even practical reasoning “logical” is possibly Emmanuel Kant’s Critique of Practical Reason (1909), appearing in 1788, around the time that the United States was adopting its Constitution.

Nevertheless, leaders in the legal profession in the early United States were familiar with Cicero. President and lawyer John Quincy Adams was an ardent Ciceronian and first Boylston Professor of Rhetoric at Harvard. As late as the 1890s, a professor at Yale Law School, William C. Robinson, published Forensic Oratory: A Manual for Advocates (1893), a legal textbook that relied heavily on Cicero.

Cicero lived in a culture with its own imaginaries – imperfectly accessible to us, of course, as two millennia separate us – and those imaginaries evolved with the times through church and monarchy to parliamentary and congressional forms of government. But the focus of this chapter is on what I have called the contemporary determinist imaginary. To illustrate some of its practices, this chapter presents a case study in two parts, the first engaging practical reason of the sort that Cicero would have recognized, and the second embracing the rhetoric about legal reasoning that Scalia and Garner espouse.

4.3 Case Study: Part 1

The words of a governing text are of paramount concern, and what they convey, in their context, is what the text means.

Antonin Scalia and Bryan A. Garner (2012, p. 56)

This section introduces “statutory construction” and the litigation in the Texas Health Presbyterian opinions that provide the case study for this chapter. It then measures the opinion of the Texas Court of Appeals in THP I against the approach that Cicero proposed.

In the United States, statutes are the enactments of the federal Congress and state legislatures, and courts must frequently interpret or construe⁴ these statutes to apply them to particular circumstances. It is helpful to think of the tools of statutory interpretation as consisting of different levels of text and context. Just as we saw in Cicero, in the contemporary United States there is wide consensus that one must begin with the text of the enacted provision that is subject to interpretation. The “text” could be something as short as a word, a prepositional phrase, a sentence, or a section of a statute. Within that text are words and punctuation, and there are generally recognized guidelines in the law – known as canons – for interpreting certain combinations of them. It is also generally accepted, even by staunch advocates of textualism, that none of these canons is, by itself, dispositive of what the meaning of a text is, that the different canons can cut in different directions and with different weights (e.g., Scalia & Garner, 2012, p. 59; see also Llewellyn, 1950).

Outside the statutory text under consideration, there is a statutory context: other provisions of the same statute and other statutes adopted in the same jurisdiction. Though we could call this textual context, I’ll refer to it as intrinsic context. This terminology will help to distinguish it from context outside the body of statutes enacted in the jurisdiction, what various commentators refer to as extrinsic aids to statutory construction. The latter might include legislative history – reports of the debates and committees in the legislature that led to adoption of the statute – events in the jurisdiction at the time of enactment or interpretation, evidence of the likely consequences of a particular interpretation, and so on.⁵ Self-described textualists usually eschew any use of extrinsic context in interpretation of statutes (e.g., Scalia & Garner, 2012). For them, the meaning of a statutory provision, for purposes of applying it as law, can be found only in the provision and in its intrinsic context. Unlike Cicero, these jurists permit recourse to extrinsic aids only when the text of the statute is ambiguous, and some of them would prohibit it even then.

As we shall now see, however, while looking at the opinion in THP I, even textualist judges are wise to engage in the type of weighing and balancing that Cicero advised.

4.3.1 The Texas Health Presbyterian Litigation and Its Statutory Context

In the course of the Texas Health Presbyterian case, the Texas Court of Appeals in THP I (D.A. v. Texas Health Presbyterian, 2017) reversed a trial court determination, and the Texas Supreme Court in THP II (Texas Health Presbyterian v. D.A., 2018) reversed the appellate court. The factual context of the THP case study is a procedure that Dr. Marc Wilson performed in an obstetrics unit during the birth of baby “A.A.” An emergency condition during the birth prompted Dr. Wilson’s procedure, but he allegedly performed it negligently, injuring A.A. and resulting in long-term effects. The plaintiffs “D.A.” and “M.A.” were the child’s parents, suing on his behalf. For the sake of simplicity, this discussion refers to D.A., M.A., and A.A. as “the plaintiff” and to “Dr. Wilson” and “the defendant” interchangeably, though Texas Health Presbyterian Hospital of Denton and a limited liability company that provided nursing services were also named defendants. At issue was whether the defendant had acted not just negligently, but with “willful and wanton negligence ” (D.A. v. Texas Health Presbyterian, 2017, p. 129), causing the injuries to A.A.

“Willful and wanton negligence” is a higher burden of proof for the plaintiff and would protect Dr. Wilson. The Texas Medical Liability Act (Section 74.153) spelled out that the higher standard applied:⁶ “[i]n a suit … arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department.” Wilson asserted that because he was rendering “emergency care” during the procedure, and he did so in an obstetrical unit and not a surgical suite, the plaintiff had to meet the willful-and-wanton standard. The plaintiff argued instead that the clause “immediately following the evaluation … of a patient in a hospital emergency department” applied to the whole phrase beginning “arising out of …”⁷ If the plaintiff was correct, the willful-and-wanton standard would not apply to their case. In other words, because A.A. and his mother had never been in the emergency department, they would need to prove only ordinary negligence.

Like many states, Texas has statutes that direct courts how to interpret its statutes, and Texas courts commonly refer to them when interpreting or construing statutory language.⁸ The Texas Government Code also permits Texas courts to consider several other “construction aids” – regardless of “whether … the statute is considered ambiguous on its face” – including, among others, the “object sought to be attained,” “circumstances under which the statute was enacted,” “legislative history,” and “consequences of a particular construction” (Tex. Gov’t Code § 311.023).

4.3.2 Opinion of Texas Court of Appeals

In THP I, the Appeals Court of Texas reversed the trial court, which had accepted Dr. Wilson’s interpretation. The appellate court nodded to the requirement that “the source for legislative intent is found, whenever possible, in the plain language of the statute itself” (D.A. v. Texas Health Presbyterian, 2017, p. 433). To assess the plain language

of the statute, the court began with the grammar and punctuation of the sentence. It illustrated the potential ambiguity with a diagram, a relatively rare sight in a court opinion (p. 437):

The question marks show the possible points of attachment for the limiting clause, which the court called the “Evaluation or Treatment Phrase”: (1) to the participle phrase beginning with “arising” and thus governing all the locations, a reading that would favor the plaintiffs or (2) to the prepositional phrase “in a surgical suite” and governing only it, a reading that would favor Dr. Wilson. The Court of Appeals grappled with the question whether the sentence would have surplus words or absurd consequences if the Evaluation or Treatment Phrase applied to all three locations, with one reading being “arising out of the provision of emergency medical care in a hospital emergency department … immediately following … treatment of a patient in a hospital emergency department.” Wasn’t the second “emergency department” redundant or absurd and therefore surplusage under this reading?⁹ The Court of Appeals rightly concluded that the two instances were not redundant, as one might receive “emergency medical care in a hospital emergency department” only after receiving “evaluation … in a hospital emergency department.” The disjunctive “or” in the Evaluation or Treatment Phrase saved the clause from being redundant or absurd under either party’s reading of the statute. The court thus concluded that grammar permitted either reading.

To select the correct attachment point, the appeals court then considered four canons of construction: the last-antecedent, series-qualifier, nearest-reasonable-referent, and related-statutes canons, finding the first two did not apply, the third favored Dr. Wilson, and the fourth favored the plaintiff.¹⁰ The last-antecedent canon provides that a “pronoun, relative pronoun, or demonstrative adjective generally refers to the nearest reasonable antecedent” (Scalia & Garner, 2012, p. 144 [emphasis added]). Because the Evaluation or Treatment Phrase in THP was not a pronoun, relative pronoun, or demonstrative adjective, the Texas Court of Appeals concluded that this canon did not apply.

The series-qualifier canon provides that when “there is a straightforward, parallel construction that involves all nouns or verbs in a series, a prepositive or postpositive modifier normally applies to the entire series” (Scalia & Garner, 2012, p. 147 [emphasis added]); the nearest-reasonable-referent rule holds that when “the syntax involves something other than a parallel series of nouns or verbs, a prepositive or postpositive modifier normally applies only to the nearest reasonable referent” (Scalia & Garner, 2012, p. 152 [emphasis added]). The Court of Appeals noted that the construction here did not involve “all nouns and verbs in a series” and it thus did not apply the series qualifier. Nevertheless, it concluded that the nearest reasonable referent applied, working in favor of Dr. Wilson by limiting the Evaluation or Treatment Phrase only to surgical suites, its nearest reasonable referent.

Finally, the related-statutes canon provides that “affiliated statutes” – the body of law enacted “for the same purpose” – “are to be interpreted together, as though they were one law” (Scalia & Garner, 2012, pp. 252–253). The Texas Court of Appeals carefully examined adjacent portions of the Texas Medical Liability Act, identifying other circumstances that referred to the higher standard of “wanton and willful negligence.” In each, the court found that the higher standard of proof against a healthcare provider applied where “the situation presented an emergency requiring medical care by a provider who had no prior knowledge, or realistic opportunity to acquire knowledge, about the patient’s history” – that is, the typical emergency room visit (D.A. v. Texas Health Presbyterian, 2017, p. 442). Because Dr. Wilson had a prior relationship with the plaintiff, this canon favored the plaintiff.

Taking these facts about the text into account, the court concluded that both potential attachment points for the limiting clause were reasonable (D.A. v. Texas Health Presbyterian, 2017, p. 439). In the presence of this ambiguity, the court looked to extrinsic aids in its construction of the statute, as the Texas Government Code had invited it to do (even absent any ambiguity). It relied on an exchange between two state senators while they debated the bill, which “the Senate voted unanimously to publish in the Senate Journal … ‘to establish legislative intent regarding’” the statute (D.A. v. Texas Health Presbyterian, 2017, p. 442):

Sen. Hinojosa: [This version of] the bill adds in the words “obstetrical unit” and “surgical suite” to the new section on the standard of proof now required for emergency care. Does this mean that now the higher standard applies to emergency care in these areas of the hospital, not just the emergency room?

Sen. Ratliff: Only if the same emergency that brought the patient into the ER still exists when the patient gets to the OR or Labor and Delivery area.¹¹

The Texas House also published excerpts, including Representative Nixon’s unopposed claim that “it is the intent of this legislation that emergency situations [sic] where you do not have a prior relationship with the patient is [sic] the one given the protection” (D.A. v. Texas Health Presbyterian, 2017, p. 443).¹² In light of these discussions “about the application of this statute to a fact scenario nearly identical to the one” the appeals court considered, it could not “ignore what plain grammar also [shows] is a reasonable reading of this ambiguous statute.” The court concluded that the limiting phrase applied to all three treatment locations, in favor of the plaintiff, and reversed the trial court.

* * *

The appeals court here engaged in practical reason of a kind that Cicero would have recognized. It carefully examined the text and its intrinsic context. The court could have weighed the canon favoring one party more than the one favoring the other and gone either way. But given the uncertainty that remained under those analyses, the court widened the circle of context – as recommended by the Texas Government Code – and found important evidence in the legislative history to support the plaintiff’s conclusion. The court showed its work. Throughout this process, the court cited Scalia and Garner’s Reading Law for their methodology and interpretive method – the self-same methods that textualists urge for legal reasoning – but as we shall see, the Texas Supreme Court later fell prey to Scalia and Garner’s rhetoric about their methods.

4.4 Scalia and Garner on Interpreting Statutes

Scalia and Garner published Reading Law: The Interpretation of Legal Texts in 2012. The text is influential: As of November 2023, nearly 3,200 court opinions had cited it, often as authority for a court’s selection and application of a general principle or canon for statutory interpretation.¹³ In Reading Law, Scalia and Garner grudgingly acknowledged in descriptions of their methods that often canons must be balanced against each other and weighed with the discretion of the judge. The results are necessarily underdeterminate. But when describing those methods, their rhetoric soared in support of deterministic goals. Note here that I’m not attacking textualists for not following their own methods; others have done so, arguing that self-described textualists sneak consequentialist and other non-textualist arguments into their interpretation quite regularly.¹⁴ Instead, I propose to show that textualists using methods on their own terms illustrate Fuller’s antinomy: The rhetorical weighing and balancing of the intrinsic tools of textualist statutory interpretation requires some fiat, but textualists’ rhetoric about the tools emphasizes claims that their methods result in determinism (Fuller, 1946).

In the introduction of Reading Law and its section on fundamental principles, the rhetoric about its methods emphasizes the determinist perspective – that legal questions have right answers and right ways of reaching them. This approach also dominates in the balance of the text, which explores eighteen “semantic” canons, seven “syntactic,” and fourteen “contextual” (but always relating to intrinsic context); and twenty-one canons “applicable specifically to” statutes and other enacted law. It continues the trend in its treatment of ambiguity and legislative intent, particularly in the latter part of the book, which “exposes” thirteen “falsities.”

As this section shows, Reading Law’s rhetoric about its methods is determinist, root and branch. It denies the complexity of the interpretive task using rhetorically effective but rationally questionable arguments. Nevertheless, in statements of principle and in the explanatory notes for almost every one of the canons, Reading Law acknowledges that the judge must balance them against each other, addressing those that are applicable and ignoring those that are not. We can account for these acknowledgements, and to an extent the popularity of the book with judges, by noting that Scalia and Garner meant the text to be a handbook for those actually engaged in statutory construction.¹⁵ Tellingly, Reading Law describes the canons only in isolation and provides no advice to the reader about how to balance them. As the case study in this chapter shows, the result is that judges must often choose between results that would be equally plausible but for the judge’s decision to weigh one canon more than another – or not – much as the Texas Court of Appeals did in THP I. The denial of this reality results in opinions like that of the Texas Supreme Court in THP II, which I take up in Part 2 of the case study.

4.4.1 Fundamental Principles

From the very beginning, Reading Law emphasizes the determinist perspective. It provides a long block quotation from a law professor writing nearly 100 years earlier and asserting that “the demand for certainty and predictability requires an objective basis for interpretation” (Scalia & Garner, 2012, p. 34 [emphasis added]). Immediately after that quote, Scalia and Garner (2012, p. 34 [emphasis added]) emphasized those words: Professor “De Sloovere … was right to insist on certainty, predictability, objectivity, reasonableness, rationality, and regularity.” They claimed that “most interpretive questions have a right answer” and that “[v]ariability in interpretation is a distemper” (p. 6). And they used the language of determinism when, for example, they claimed that “we will demonstrate … [that] the textualist routinely takes purpose into account, but in its concrete manifestations as deduced from close reading of the text” (p. 20 [emphasis added]).

Nevertheless, the book struggles to maintain the determinist imaginary in the face of practical constraints: It asserts that its methods provide determinist answers, but it must in many cases acknowledge the underdeterminacy of those self-same answers and that its methods might justify more than one outcome. Scalia and Garner’s solution was, on the one hand, to use a strongly deterministic rhetoric when describing their approach, and even particular canons. On the other hand, their blackletter¹⁶ characterizations of the canons and occasional acknowledgments quietly (and fairly) allow for the contingency that is inherent in natural language – in other words, for underdeterminacy.

For example, they began their exposition of their method with a series of “fundamental principles” that represent the foundation of their approach. Reading Law (Scalia & Garner, 2012) sets each off in its own short section. Two of the first three begin with blackletter maxims or headings that seem quite underdeterministic:

1. 1. Interpretation Principle: Every application of a text to particular circumstances entails interpretation. (p. 53)

2. 2. Supremacy-of-Text Principle: The words of a governing text are of paramount concern, and what they convey, in their context, is what the text means. (p. 56 [emphasis added])

3. 3. Principle of Interrelating Canons: No canon of interpretation is absolute [emphasis added]. Each may be overcome by the strength of differing principles. (p. 59)

We expect the content of each section to develop the subject in the heading, but the book does so in a complicated way.

The whole description of the principle in section 1 and at least the clauses in sections 2 and 3 that I have italicized here seem to acknowledge that there will be underdeterministic practical reasoning going on. The text that follows these headings in sections 1 and 3, however, works hard to undermine the underdeterminacy implied by the headings. Section 1 quotes nineteenth-century legal theorist Frederick Pollock (1896): “Given a rule of law that [those] conditions generically described as A produce a certain legal liability or other consequence X, does the specific fact or group of facts n fall within the genus A?” (Scalia & Garner, 2012, p. 54). Scalia and Garner gave that passage this gloss: “You read an authoritative legal text to discover A (a major premise). You find facts to discover n (the minor premise). Then you draw your conclusion” (p. 54). In other words, Scalia and Garner reconfigured the interpretation referred to in the section heading as a deduction.

Section 2, which has the blackletter maxim that seems most determinist, asserts that extrinsic context (such as legislative history) is an unacceptable aid. The text of this section is among Scalia and Garner’s most determinist, asserting that “the purpose must be defined precisely” and as “concretely as possible, not abstractly,” and that “purpose … cannot be used to contradict text or to supplement it” (Scalia & Garner, 2012, pp. 56–57 [emphases added]).

Though the blackletter statement that begins section 3 seems highly underdeterministic, most of its text argues against the view that the canons have no value and for the view that they restrain prejudice and provide near-certainty. Scalia and Garner’s conclusion, quoting Bishop (1882), is that “[t]he sound view is that ‘statutory interpretation is covered as absolutely by rules as anything else in the law’” (Scalia & Garner, 2012, p. 61 [emphasis added]). Reading Law argues that the canons are stable, and it claims – without any argument or support – that “[t]hey should be stable … despite the efforts of many moderns to destabilize them” (p. 62).

Importantly, these fundamental-principle sections offer brief nods to reality: “Yes, [the canons] can be abused, but every useful tool can be abused,” and “This is not to say that it is always clear what results the principles produce” (Scalia & Garner, 2012, p. 61). But Reading Law provides absolutely no guidance how the judge should mediate or weigh the interaction of the canons pointing in different directions, probably because acknowledging the necessity of that process would emphasize the underdeterminacy of the result.

4.4.2 Complexity and Its Denial

Reading Law continues these practices of emphasizing determinism while scantly acknowledging markers of underdeterminism, including in its presentation of the canons and its treatment of ambiguity and legislative history. Throughout its discussion of the canons of interpretation, the book exhibits the tension between determinist rhetoric and underdeterminist reality. But because THP implicates particular canons, I will discuss several of them briefly: the grammar, last-antecedent, series-qualifier, nearest-reasonable-referent, punctuation, surplusage, interpretive-direction, and related-statutes canons. I add some notes about Scalia and Garner’s stance on the use of legislative history.

The blackletter of Reading Law’s grammar canon provides: “Words are to be given the meaning that proper grammar and usage would assign them” (Scalia & Garner, 2012, p. 140). As to punctuation, it “is a permissible indicator of meaning” (p. 161). The text of the grammar section begins: “Judges rightly presume … that legislators understand [grammar]. No matter how often the accuracy, indeed the plausibility, of this presumption is cast in doubt by legislators’ oral pronouncements, when it comes to what legislators enact, the presumption is unshakable” (p. 140 [emphasis added]). But a paragraph later, it acknowledges that “[t]he presumption of legislative literacy is a rebuttable one; like all the other canons, this one can be overcome by other textual indications of meaning” (p. 140 [emphasis added]). The presumption is both unshakable and rebuttable? Reading Law also notes that “some grammatical principles are weaker than others” (p. 142). Meanwhile, the section on the punctuation canon makes an extended argument for the permissibility of the use of punctuation in interpretation, again apparently relying on the literacy of legislators. Nowhere does it suggest the punctuation is a conclusive aid to interpretation. Nowhere in these sections is there guidance about which grammatical principles and punctuation rules are stronger and how one should weigh them against each other or against other canons.

The last-antecedent canon has been criticized by linguists and legal theorists (e.g., Kimble, 2017). Reading Law states the blackletter principle simply: “A pronoun, relative pronoun, or demonstrative adjective generally refers to the nearest reasonable antecedent” (Scalia & Garner, 2012, p. 144 [emphasis added]). As the “generally” in the blackletter statement would suggest, the last paragraph of the section contains a “caveat,” that this “canon may be superseded by another grammatical convention” (p. 146). We receive an example but may be left wondering, are there others? I presented the series-qualifier and the nearest-reasonable-referent canons in part 1 of the case study (Section 4.3). Again, after many easy cases given as examples discussing those canons, Reading Law admits: “Perhaps more than most of the other canons, [these two are] highly sensitive to context” and “subject to defeasance by other canons” (p. 150). By which canons, and under which circumstances, it does not say.

Under the surplusage canon, “[i]f possible, every word and every provision is to be given effect … None should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence” (Scalia & Garner, 2012, p. 174 [emphasis added]). Again, I highlight the words “if possible” and “needlessly” here to emphasize the contingency of this canon, and one would expect a court disregarding a word as surplus should explain the need. In fact, Reading Law provides an example: In Moskal v. United States (1990), a majority of the Supreme Court concluded that “falsely made” meant something other than “forged, altered, or counterfeited” on grounds that if “falsely made” meant the same as “forged” in this list, it would be surplus. In dissent, Scalia maintained “falsely made” did mean “forged” and blistered that the “entire phrase is self-evidently not a listing of differing and precisely calibrated terms, but a collection of near synonyms” (Scalia & Garner, 2012, p. 178 [emphasis added]). By “self-evidently,” Scalia meant that he didn’t think his view needed explanation. But departing from this canon seems to demand it.

The related-statutes canon provides that “affiliated statutes” – the body of law enacted “for the same purpose” – “are to be interpreted together, as though they were one law” (Scalia & Garner, 2012, pp. 252–253). It is important to note that for Scalia and Garner, related statutes are not an extrinsic aid to interpretation. They are part of the same body of statutes in the same jurisdiction. Again, the authors acknowledged that “[t]he critical questions are these: Just how affiliated must ‘affiliated’ [statutes] be, and what purposes are the same? The cases provide – properly in our view – a good deal of leeway” (Scalia & Garner, 2012, p. 253). And again, there are no guidelines here.

The interpretive-direction canon acknowledges that legislatures sometimes provide some interpretive machinery of their own, defining terms they use in statutes and even providing interpretive guidance. These provisions are enacted law just as much as the statutes they are to help interpret. “Definition sections and interpretation clauses are to be carefully followed” (Scalia & Garner, 2012, p. 225) according to the blackletter, but the section that follows includes Scalia and Garner’s lengthy ruminations on the limits of the ability of legislatures to adopt statutes that dictate how they want their own statutes to be interpreted. Reading Law asserts there are many such limits, but often without supporting arguments and often with the only authority supporting them being a few citations to law-review articles. Again, the reader receives mixed signals, as if the authors are saying: “Carefully follow interpretation clauses, but we’ll let you know when they go too far.”

In addition to canons that Reading Law endorses, it abjures some interpretive tools, including legislative history. It is a common perception among attorneys that one either should not consider legislative history – an extrinsic aid to interpretation – at all or that one should consider it only if the statutory text is ambiguous. Reading Law does not adopt the view that “[w]hen the words of a statute are unambiguous, [the] first canon is also the last: ‘judicial inquiry is complete’” (Connecticut National Bank v. Germain, 1992, p. 254). In fact, the treatise suggests that the question of ambiguity is not a central one and can usually be resolved by selecting the proper word sense.¹⁷ It argues instead that problems consistently arise from “vagueness.”¹⁸ It urges that “[m]ost interpretive canons apply to both ambiguity … and vagueness” (Scalia & Garner, 2012, p. 33), though it does not say which ones do not apply or when.

One controversial view that Reading Law firmly espouses is that legislative history, an extrinsic aid to interpretation, should never be used.¹⁹ Well, almost never: The treatise acknowledges the utility of history as evidence “establishing linguistic usage” at the time of the enactment or for showing that an interpretation by the court is not absurd if even one legislator maintained that view in the legislative history (Scalia & Garner, 2012, p. 388). But a section making up nearly 5 percent of the book’s pages appeals to judges to avoid it in all other cases.

* * *

Scalia and Garner peppered their exposition of the canons with assertions of determinism and self-evidence, especially in the excerpts of Scalia’s own opinions. But as I have shown, their treatise acknowledges – indeed, must acknowledge – several things: First, canons compete, and their weighting when they do is uncertain. Second, canons’ presumptions are rebuttable, though it is unclear when. Third, canons require conduct only generally or abjure it only when it is needless. Fourth, canons are sensitive to context, though how sensitive and to how great a context is uncertain. And finally, the statutes’ own internal rules for interpretation work only to an extent, but to what extent, it is hard so say.

If we take at face value the canons as Reading Law explains them, they are at best a checklist of lenses through which courts should view an interpretation problem, rules of thumb to solve a problem that will require the give and take of practical reason, the result of which is often – if not always – underdeterminate. They are a complex toolset for judges, requiring subtle judgments so difficult to balance that Reading Law does not even try. But its rhetoric about the canons is consistently determinist.

Cicero, the Texas Court of Appeals, and the explanations of Reading Law seem to be in complete agreement (with the exception of legislative history): Interpreting statues is a complicated act of practical reasoning, rarely resolved by any zinger of a rule. Though the Texas Court of Appeals seemed to understand the underdeterminate reality in THP I and showed its work, the Texas Supreme Court instead embraced the determinist rhetoric of Reading Law when it decided THP II.

4.5 Case Study: Part 2

The Texas Supreme Court reversed the appeals court’s decision in THP II (Texas Health Presbyterian v. D.A., 2018, p. 137). The Supreme Court stepped through the facts of the case and the procedural history at the trial court and Court of Appeals. The Supreme Court disposed of Dr. Wilson’s arguments based on the punctuation and nearest-reasonable-referent canons, concluding that it was “left with an unpunctuated phrase containing a modifier that – in light of its location within the phrase – could modify the entire series or only the last item in the series” (p. 132). It nevertheless concluded there are “two features that make the family’s construction unreasonable” (p. 133). The first is the location of the clause “in a” in the text, which the court illustrated by parsing the text in the way that Dr. Wilson would:

1. [1] in a hospital

   1. [a] emergency department or

   2. [b] obstetrical unit or

2. [2] in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department.

And in the way that the plaintiff would:

1. [1] in a

   1. [a] hospital emergency department or

   2. [b] obstetrical unit or

   3. [c] in a surgical suite

2. [2] immediately following the evaluation or treatment of a patient in a hospital emergency department.²⁰

The court concluded that the plaintiff’s reading required it to ignore the second “in a,” violating the surplusage canon and, with reference to Scalia and Garner, the nearest-reasonable-referent canon. The court accepted Dr. Wilson’s reading of the clause, claiming “[i]t simply permits no other reasonable reading.”

The court nevertheless considered a second reason, grounded solely in the clause they interpreted. The reason was that the plaintiff’s reading required the court to accept a gloss of the statute it deemed nonsensical: “treatment in a hospital emergency department … immediately following … treatment of a patient in a hospital emergency department” (Texas Health Presbyterian v. D.A., 2018, p. 134). It failed to note the Court of Appeals’ conclusion that the “or” between “evaluation” and “treatment” permitted this gloss: “treatment in a hospital emergency department … immediately following the evaluation … of a patient in a hospital emergency department.” Given that treatment, even in the ER, always follows some kind of evaluation or assessment of the patient’s condition, this gloss seems quite reasonable. Nevertheless, the Supreme Court concluded that the plaintiff’s reading “would create a redundancy that deprives the phrase of any linguistic sense” (p. 135).

The Supreme Court entirely ignored the appeals court’s use of the related-statutes canon, failing to account for evidence in other sections of the same statute that it is meant to protect doctors providing emergency care who have no familiarity with their patients. It did, however, expressly discount the appeals court’s and the family’s use of legislative history: “[T]he family relies heavily on statements individual legislators made during floor debates” (Texas Health Presbyterian v. D.A., 2018, p. 136). The court responded that “statements explaining an individual legislator’s intent cannot reliably describe the legislature’s intent.” Here, though, the court relegated to a footnote the fact – pointed out in the appeals court decision – that the exchange between Senators Hinojosa and Ratliff appeared in the Senate report only after unanimous consent of the Senate, a threshold higher than the majority required to pass the statute in the first place.

4.6 Restraint and Tradition

Reading Law argues throughout its length for an approach to judicial decision-making on grounds that it promotes judicial restraint and supports democratic values and that it enacts traditional jurisprudence. Judicial restraint is part of a story in the determinist imaginary that in the mid-twentieth century judges moved away from the principles Scalia and Garner espoused, and the result “has weakened our democratic processes, and has distorted our system of government checks and balances” (Scalia & Garner, 2012, p. xxvii). They claimed that “nontextual means of interpretation … erode society’s confidence in a rule of law that evidently has no agreed-upon meaning” (p. xxviii). Of course, by telling that story, they simultaneously responded to and helped to perpetuate populist beliefs that judges should not exercise discretion in applying the law, that they should do only what the text of the law demands.

But Scalia and Garner (2012) also had to acknowledge that textualist judges can abuse their discretion as can non-textualist judges. They claimed that “in a textualist culture, the distortion of the willful judge is much more transparent, and the dutiful judge is never invited to pursue the purposes and consequences he [sic] prefers” (Scalia & Garner, 2012, p. 17). The transparency they asserted seems to require that if a court draws a practical conclusion, it should provide considerable explanation for the public, other judges, and lawyers to understand how it reached that conclusion (Larson, 2022). The Texas Court of Appeals and Texas Supreme Court in THP were both textualist-minded courts, given that both liberally cited Scalia and Garner. But the Texas Court of Appeals showed its practical reasoning, balancing the arguments of the parties and its own inventive efforts, while the Texas Supreme Court ignored or misconstrued arguments in its effort to give a conclusive answer based on questionable grammatical analysis.

The Texas Supreme Court embraced the determinist imaginary, just as Scalia had in his own opinion-writing, where he often claimed his answers were self-evident. Unfortunately, his example and the impulse to make conclusions sound determinist have worked to obscure courts’ reasons, as THP II showed. Rather than showing their work as they evaluated and balanced the canons, they often claimed abruptly that one is determinative. The Supreme Court’s opinion in THP II represents what even Scalia and Garner might call a “crabbed” reading that hangs on deterministic conclusions about the meaning of the text based on contestable grammatical claims. Citing Reading Law, the court did not employ the balancing that the treatise’s explanations counseled, and it failed to consider the intrinsic context of the related-statutes canon or the wider extrinsic context of the legislative history, which the legislature had invited it to do. It is difficult to describe THP II as more restrained than THP I.

Scalia and Garner further propped up the determinist imaginary with frequent appeals to a tradition before the twentieth century, where they said judges behaved according to their standards. But some of their appeals to tradition seem to cut both ways, and in other cases they proposed abandoning the old ways. Reading Law relies on frequent claims about the historicity of its approach, claiming that today “judicial invention replaces what used to be an all-but-universal means of understanding enacted texts [resulting in] the distortion of our system of democratic government” (Scalia & Garner, 2012, p. xxviii). It asserts that its “approach is consistent with what the best legal thinkers have said for centuries” (p. xxix) and – without argument or citation to support this claim – that textualism’s “principal tenets have guided the interpretation of legal texts for centuries” (p. 16).

Reading Law frequently quotes and cites authorities from around the time of the framing of the US Constitution as supporting its views, but these examples cut both ways. For example, Scalia and Garner began their arguments against using legislative history with a block quotation from William Blackstone, the eighteenth-century British jurist whose Commentaries had a profound influence on judges for more than 100 years and which appeared in its first American edition shortly before the Revolution. The beginning of the Blackstone quotation says that the interpreter should look for legislators’ intentions in “signs the most natural and probable” (Scalia & Garner, 2012, p. 369).²¹ What seems surprising, however, is that Scalia and Garner continued the quotation: “these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law.” The consequences and spirit of the law, however, have no place in Scalia and Garner’s interpretive scheme.

Scalia and Garner (2012) also needed to abjure certain judicial traditions that were current at the time of the framing, which Reading Law usually does without supporting argument. It admits, for example, that judges had both legislative and judicial powers in England and before the US Constitution. Scalia and Garner (2012, p. 4) complained that “[s]ome judges, however, refuse to yield the ancient judicial prerogative of making the law, improvising on the text to produce what they deem socially desirable results.” To support their assertion that judges should only interpret and not make law, they pointed to Article III of the Constitution. But the Constitution says only that “[t]he judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish” and says nothing in derogation of the common-law equity or law-making powers of courts.

Reading Law supports the determinist imaginary by picking and choosing from among the forms of restraint and legal traditions only those that support its story.

* * *

Cicero (1949) on the one hand and Scalia and Garner (2012) on the other both counsel judges to explore thoroughly the intrinsic context of a text. Cicero and the Texas legislature also counseled interpreters to use rhetorical knowledge from broader, extrinsic contexts, such as legislative history and considerations of equity. The Texas Court of Appeals in the Texas Health Presbyterian case exhibited these characteristics of judging well, taking “perfect reason” as far as it could go with grammar and punctuation and then balancing considerations derived from broader contexts, intrinsic and extrinsic. Even if we set aside the extrinsic aid of legislative history, the appeals court could have concluded for either party based on its analysis. The Supreme Court, on the other hand – licensed by the determinist imaginary and by Scalia and Garner’s rhetoric about legal reasoning – concluded based only on a questionable application of one canon and an erroneous application of grammatical rules that there was only one possible conclusion.

To be clear, I don’t argue that either court could not reasonably have concluded as it did in THP.²² The problem is rather that the Supreme Court, trying “to promise unequivocal, correct results” (Hohmann, 2006, p. 194), deprived the parties and the broader audience of citizens of Texas of a more thoughtful analysis, one that accounted for all the context that judging well requires. For fear of admitting the antinomy of “fiat” and “reason,” the court dressed its opinion in the rhetoric of certainty. Judging well requires more.

The remedy to this concern is not in particular courts’ opinions, but rather in the professional and public rhetoric surrounding judicial decision-making. Those who embrace Scalia and Garner’s rhetoric about legal reasoning, without admitting the contingencies that even Scalia and Garner must acknowledge within legal reasoning – and its need for rhetorical invention – fail to embrace the legacy of judging well that the West can inherit from Cicero.