It won't surprise readers of the recent Ilya-Orin exchanges on constitutional interpretation that Ilya and I sharply disagree on the cluster of ideas generally grouped together as "Burkean conservatism." Indeed, I have often thought that our exchanges on constitutional interpretation were really just an application of our broader disagreement on Burke's ideas (or rather, what passes today as Burke's ideas — I agree with Ilya that we should accept the label as a given). Given that, I want to respond to Ilya's post and explain why I disagree with him on the alleged pitfalls of Burkean conservatism. Specifically, I want to make the case for presumptively valuing tradition and for presumptively favoring gradual change.

  First, the case for valuing tradition. In my view, it is smart to start with a presumption of validity of existing practice because it is human nature that "the squeaky wheel gets the grease." Problems with the status quo are visible, so they get our attention, while the benefits of the status quo often blend in to the background. I think this creates a consistent bias in how we assess the costs and benefits of change. When we look to alter the status quo, we often dwell so much on the improvements we anticipate that we miss the costs that may accompany it. This is sometimes called "the law of unintended consequences," but I think it's more just a failure to prospectively assess costs of change in the same way that we prospectively assess benefits.

  Valuing tradition is a smart counterweight that protects against this common human error. In my view, valuing tradition has nothing to do with blindly deferring to something just because it has been around for a while. Instead, it means looking carefully at the functions that the tradition serves and appreciating those functions even if they are not "squeaky wheels." My sense is that in most cases this will tend to facilitate a more accurate and realistic sense of costs and benefits of prospective reforms.

  The case for gradual change is related to the case for valuing tradition. If we change gradually, we can test whether our sense of the costs and benefits are accurate. We can get a feel for whether our ideas are right or if we're missing something, and we can use our experience to learn and tailor future changes. This isn't always possible because some problems are non-linear; a small step may not correlate to a small version of the change that a big step would produce. But I think it works often enough that it's a smart strategy to use as a default.

  My difficulty with Ilya's opposing case is that it is based heavily on a few specific examples, and yet we don't know if his examples are representative. Without question, we can look to examples of extremely bad things in the past and say it would have been better to end them quickly rather than slowly. But we can also look to examples of extremely bad proposals for change in the past and say it would have been better to try them slowly or not at all rather than to have embraced them. Because choosing the example picks the lesson, I tend to think that the anecdotal approach doesn't get us very far. One side picks slavery as the lead example and the other side picks communism, and neither can convince the other that their example is more illuminating.