an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
'Invented tradition' is taken to mean a set of practices, normally governed by overtly or tacitly accepted rules and of a ritual or symbolic nature, which seek to inculcate certain values and norms of behaviour by repetition, which automatically implies continuity with the past. In fact, where possible, they normally attempt to establish continuity with a suitable historic past.... However, insofar as there is such reference to a historic past, the peculiarity of 'invented' traditions is that the continuity with it is largely fictitious. In short, they are responses to novel situations which take the form of reference to old situations, or which establish their own past by quasi-obligatory repetition.
Franklin employs Hobsbawm this way:
This Article argues that the “traditional concept” of sex discrimination, as articulated by courts, is an “invented tradition.” The historian Eric Hobsbawm famously used that term to refer to social practices that purport to be old, or imply continuity with the past, but are actually quite recent in origin. By claiming to be deeply rooted in history, these practices seek “to give any desired change (or resistance to innovation) the sanction of precedent, social continuity, and natural law.” Hobsbawm explained, for instance, “that a village’s claim to some common land or right ‘by custom from time immemorial’ often expresses not a historical fact, but the balance of forces in the constant struggle of village against lords or against other villages.” This Article contends that the “traditional concept” of sex discrimination, as it was articulated in the 1970s, is just such a tradition. Courts claimed that their narrowly circumscribed definition of sex discrimination was deeply rooted in history, but in fact, it was quite new. It did not express a historical fact. It made a normative claim — not, in this case,about the boundaries of a particular plot of land but about the limits of Title VII’s prohibition of sex discrimination.
Bringing this classic analysis to bear on contemporary legal analysis has potential importance beyond Title VII. History as a "useable past" is often drawn on by scholars, courts and litigants (in the plethora of historical amicus briefs). For the past to be authoritative, there is a search for the "real," based on the idea that there is one true past that can be discovered. This fuels instrumental historical research that seems to assume that uncovering history involves mining the past to collect as many seemly stable objects as possible (whether they be past laws, interpretations, ideas, or experiences). A central feature of any critical work in historiography emphasizes the instability of the past, and the fact that we cannot know the past without interpretation. And Hobsbawm cautions us that constructions of tradition often serve the function of legitimating current structures and social hierarchies.
Thanks to Franklin for bringing a critical understanding of tradition to bear on Title VII. Now it should be carried into the "history and traditions" analysis in the area of unenumerated constitutional rights, and other areas where understandings of the past drive contemporary legal analysis.
Franklin's abstract is below the fold.
It is a commonplace in employment discrimination law that Title VII’s prohibition of sex discrimination has no legislative history. Courts have therefore argued that this prohibition must be restricted to the “traditional concept” of sex discrimination. Traditionally, courts suggest, discrimination “because of sex” referred only to practices that divided men and women into two perfectly sex-differentiated groups. Although Title VII doctrine has evolved over time, this “traditional concept” of sex discrimination continues to exert a powerful regulative influence over the law. It excludes certain claims — such as those by sexual minorities — from coverage and elevates the evidentiary burdens plaintiffs must satisfy in order to prove discrimination “because of sex.”
This article argues that the “traditional concept” of sex discrimination is an invented tradition. It purports to reflect the historical record, but in fact reflects normative judgments about how deeply the law should intervene in the sex-based regulation of the workplace. Recovering the largely forgotten legislative history of Title VII’s sex provision, this article shows that there was little consensus and much debate in the 1960s about what qualified as sex discrimination. Employers advanced the argument that Title VII applied only to practices that sorted men and women into two perfectly sex-differentiated groups in order to preserve the traditional gendered organization of the workplace and insulate particular employment practices from scrutiny. In the 1970s, courts adopted this interpretation but no longer cited the need to preserve conventional sex and family roles as a justification; instead, courts cited deference to the legislature and fidelity to tradition as justifications for interpreting the law narrowly. This article shows that history does not compel courts to interpret Title VII’s prohibition of sex discrimination in anticlassificationist terms — and that, in fact, in cases where anticlassificationism produces expansive rather than narrow results, courts have routinely departed from it. This tendency should prompt us to think critically about the assertion that deference to the legislature and fidelity to tradition require courts to adhere to a narrow conception of what it means to discriminate “because of sex.” The parameters of Title VII’s prohibition of sex discrimination have always been determined by normative judgments about how forcefully the law should intervene in practices that reflect and reinforce conventional understandings of sex and family roles.