History & Tradition

The purpose of any institution is to preserve traditions. That might not be obvious today, when so many institutions have been corrupted by the progressive ideology, so that they are actively undermining traditions. However, the only reason to set up an institution of any kind is because you have something you like that you want to see carried forward. 

All that's going on with the current corruption is that the 'thing they like' is the permanent revolution, which they are trying to make even more permanent by embedding it into institutions. That's what institutions do, and it's why a revolutionary movement must either seize control of the existing ones, replace them, drive them out, or destroy them. You can consider how during the Reformation, the English royalty sought to drive out the Catholics and replace them with their own bishops and church; or how in the French Revolution, the anti-clerical and anti-Catholic movements were part and parcel of the whole "Year One" business. The institutions are the enemy of revolution unless they are seized by the revolution.

For that reason, the NYT is really worried about this whole "History & Tradition" mode of inquiry that is gaining traction in the US courts with conservative jurists. They open with what they take to be a sympathetic example: the rejection of a student-run drag show on campus.

[T]he president of West Texas A&M, Walter Wendler, announced in March 2023 that he was barring the event from campus. In a statement on his personal website, Wendler called drag shows “derisive, divisive and demoralizing misogyny.” Spectrum WT sued, arguing that Wendler’s decision to cancel the show was a “textbook” example of discriminating against speech based on viewpoint.

Legally speaking, Spectrum WT had a strong case. Since the 1970s, the Supreme Court has ruled that the First Amendment protects speech on public university campuses, “no matter how offensive” and despite “conventions of decency....” 

But the lawsuit landed on the docket of Judge Matthew J. Kacsmaryk, a Trump appointee [who] had a new tool, supplied by the Supreme Court. Known as the “history and tradition” test, the legal standard has been recently adopted by the court’s conservative majority to allow judges to set aside modern developments in the law to restore the precedents of the distant past....

In March, the Supreme Court rejected the student group’s request to hold a second annual drag show on campus. Kacsmaryk’s decision is now pending at the U.S. Court of Appeals for the Fifth Circuit. Also unresolved is a larger question: How much will the scope of American liberty change as conservative judges impose the past on the present?

Again, though, the point of institutions -- including the law, including constitutions like our own -- is to impose the past on the present (and the future). The reason you create a constitution is to say to the future, "These standards are so important that they must be upheld, even as things change, unless there is sufficient agreement on changing them that you can do it through the constitutional process." The point of institutions like churches is to say, "These truths are eternal, and as years and ages roll along, they need to be remembered and included." 

Now, on the question of where the 'History & Traditions' of the United States fall on this particular issue, I think you could make different arguments. We have a strong history of supporting free speech and expression; and, actually, both drag shows and the very similar institution of minstrel shows originate in the United States, and have enjoyed long-term popularity. Minstrel shows aren't done anymore, but there's no formal prohibition of them: they've just fallen out of cultural favor, as people have come to accept that an actor of one race making fun of exaggerated caricatures of another race is unacceptable. 

For now, the same judgment hasn't been made about drag shows even though the argument against them is parallel: such shows entail an actor of one sex making fun of exaggerated caricatures of the other sex. Yet in fact, female megastars like Beyoncé  (locally of "Jolene" remake fame, although I imagine her actual fans would say that was the least of her fame) have adopted personae and language that is drawn heavily from drag (e.g., "Slay, Queen!" and all that bit). 

On the other hand, one could state that America has also had a long set of 'time and place' requirements that allowed such things to occur without destabilizing the general culture's sense of public morals. Both of these arguments are defensible, and making defensible arguments about how to resolve a dispute is what the courts ostensibly exist to do.

The NYT raises other things later that probably concern it more, like the effect of "History & Tradition" on their long-desired project of disarming America. Still, probably what really upsets them the most is restoring earlier America and earlier Americans to a kind of position of power, giving our ancestors a say in what comes next. To this, I must remind them of Chesterton's dictum: Tradition is the democracy of the dead. The opinions of those who came before us, and who did so much to build all that we have inherited, deserve to be at least considered in deciding how we proceed with what they gave us.