Posted on by Marc O. DeGirolami

The Nationalist Providentialism of Justice John Marshall Harlan

In a richly detailed new article, Professors Josh Blackman (South Texas) and Justice JM HarlanBrian Frye (Kentucky), together with Michael McCloskey of the Harlan Institute for Constitutional Studies, discuss the constitutional jurisprudence of Justice John Marshall Harlan by exploring his turn-of-the-century lectures at what was then the Columbian College of Law (now GW). My old students will remember Justice Harlan for, among other opinions, his famous dissent in Plessy v. Ferguson. The paper is very interesting on many fronts, but the authors’ reconstruction of Harlan’s nationalist providentialism (Harlan himself, the authors write, was a “devout Presbyterian”) really caught my eye (particularly in light of a paper I am now working on involving a contemporary judge with not entirely dissimilar views):

In his lectures, Justice Harlan expressed a strong belief in American exceptionalism and in the role of providence in America’s success. He saw a tight connection between the rule of law and religion, and considered them both essential to America’s prosperity. For Harlan, constitutional liberty consisted of the common law rights of Englishmen, secured by the Constitution and realized by the Court. The primary merit of a written Constitution was to render immutable traditional common law rights. And those common law rights were secured and realized only by special providences, indelibly marked by blood and fire. Harlan argued that the Fourteenth Amendment incorporated the Bill of Rights against the states. He believed that the Constitution expressed the “providential” purpose of the United States. Discussing the clause that requires that officers must swear to uphold the Constitution, Harlan asks, “Is there any country on the Earth that has in its statutes or laws a provision like that? Not one.” ….

Harlan’s republicanism committed him to popular sovereignty, civic virtue, and self-governance. Other Justices saw the rights guaranteed by the Constitution as abstract, derived from reason and practicality. For some, like Holmes and Brandeis, it meant legal realism. By contrast, Harlan saw constitutional rights as elements of a shared culture, and the extension of them to the states through the Constitution as a means of promoting and preserving national unity. By affirming a common American heritage, rooted in “Anglo-Saxon” liberties, the Court, through the Bill of Rights and the constitutional privileges and immunities it protected, could help create a unified nation, one with the ideological strength to overcome sectional and racial differences. Harlan’s lectures were one tool for accomplishing this goal.

Posted on by Marc O. DeGirolami · 2 Comments

John Locke’s Constitution for the Carolinas (1669): Thoughts on “Churches”

John Locke drafted a constitution for the Carolinas in 1669, entitled, “The Fundamental Constitutions of Carolina.”  His draft was never ratified, but here are some provisions relating to “churches” which may be of some interest, in light of the resurgence of scholarship involving the liberty of the church:

Ninety-seven. But since the natives of that place, who will be concerned in our plantation, are utterly strangers to Christianity, whose idolatry, ignorance, or mistake gives us no right to expel or use them ill; and those who remove from other parts to plant there will unavoidably be of different opinions concerning matters of religion, the liberty whereof they will expect to have allowed them, and it will not be reasonable for us, on this account, to keep them out, that civil peace may be maintained amidst diversity of opinions, and our agreement and compact with all men may be duly and faithfully observed; the violation whereof, upon what presence soever, cannot be without great offence to Almighty God, and great scandal to the true religion which we profess; and also that Jews, heathens, and other dissenters from the purity of Christian religion may not be scared and kept at a distance from it, but, by having an opportunity of acquainting themselves with the truth and reasonableness of its doctrines, and the peaceableness and inoffensiveness of its professors, may, by good usage and persuasion, and all those convincing methods of gentleness and meekness, suitable to the rules and design of the gospel, be won ever to embrace and unfeignedly receive the truth; therefore, any seven or more persons agreeing in any religion, shall constitute a church or profession, to which they shall give some name, to distinguish it from others.

….

One hundred. In the terms of communion of every church or profession, these following shall be three; without which no agreement or assembly of men, upon presence of religion, shall be accounted a church or profession within these rules:

1st. “That there is a God.”

II. “That God is publicly to be worshipped.”

III. “That it is lawful and the duty of every man, being thereunto called by those that govern, to bear witness to truth; and that every church or profession shall, in their terms of communion, set down the external way whereby they witness a truth as in the presence of God, whether it be by laying hands on or kissing the bible, as in the Church of England, or by holding up the hand, or any other sensible way.”

Some thoughts on the language about “churches” and what constitutes them:

1. Locke seems to want to be generous for, among other reasons (some religious), the strategic reason of conversion.  He recognizes that the many “strangers” to Christianity will expect religious liberty, and maintenance of civic peace demands that they have it, but “by good usage and persuasion” these people are hopefully to be converted.  All of this is familiar from the Letter Concerning Toleration, but what really interested me was the final line of section 97: “therefore, any seven or more persons agreeing in any religion, shall constitute a church or profession, to which they shall give some name, to distinguish it from others.”  Notice Locke’s emphasis on, to use a legal term, numerosity!  What constitutes a “church” is in part a numerical characteristic.  You cannot be a “church” under Locke’s constitution with less than seven members.  This numerical feature highlights the sociality of an ecclesial structure.  And we continue to struggle with it today (compare, e.g., Psychic Sophie and related controversies).

2.  But there are also substantive characteristics that must be satisfied.  Belief in God, of course, but notice the public quality of the other two elements!  You cannot be a church unless you worship God “publicly.”  And there must be official rules for that public worship–the church must promulgate rules which “set down the external way” in which  church members will witness the truth as they apprehend it.  The emphasis on these external, public, ritualistic functions of churches–and therefore, in part, on the public functions that they serve, the ‘civil religion’ function–is perhaps not quite so common today but it is still present.

Posted on by Marc O. DeGirolami · 2 Comments

Rakove Reviews Tsesis on the Declaration of Independence

I have not read Alexander Tsesis’s new book about the Declaration of Independence.  From this review by Jack Rakove, though, it appears that Professor Tsesis makes some “powerful moral claims” about the nature and scope of the “self-evident” “truth[]” “that all men are created equal.”  I have always been struck by the powerful religious text grounding the various principles enunciated in the Declaration, but at a quick glance, it does not seem that Professor Tsesis makes very much of this (though perhaps there are portions of the book where this text is discussed).  He does (again, according to Professor Rakove’s review) appear to advance the claim that the Constitution needs to be amended and updated to reflect a core egalitarian creed that he reads into the Declaration.  Professor Rakove has this to say:

In short, Tsesis collapses into the Declaration a host of claims that text and context simply cannot support, assigning to it qualities and purposes it was not originally intended or understood to possess. His most basic misunderstanding goes to the great equality principle that Jefferson condensed into “all men are created equal.” Americans have long read that to mean that we are or should become equal to one another as citizens. That, in effect, is how we have democratized the Constitution since 1776—as Tsesis ably demonstrates. When inequalities are perceived and become objectionable, we cite the Declaration in support of our leveling claims. Often we do that not merely because the inequalities are unjust in themselves, but also because we believe that the Declaration instructs us to oppose them. But the intended meaning of 1776 was never about inequality within American society. It was instead a statement that Americans as a people, as a collective whole, were equally endowed with other peoples with the right to oppose tyranny, to “alter and abolish” unjust governments and establish new governments in their stead. This form of equality means little to us now, but in the revolutionary circumstances of 1776, that was the equality Americans needed to assert.

Posted on by Mark Movsesian

McGinnis on Berman

Over at the Liberty Law Blog, John McGinnis (Northwestern) is doing a very interesting series on Harold Berman’s seminal two-volume history of Western law, Law and Revolution. In Law and Revolution, Berman argued that the existence of competing jurisdictions, each with a valid claim on people’s loyalties, has played an essential role in Western law, going all the way back to the 11th-century investiture crisis, which dealt in part with the competing jurisdictions of canon and royal courts. In this post, McGinnis argues that legal polycentrism of the sort Berman describes can promote liberty by preventing governmental monopolies. Classical American federalism, for example, promotes liberty by dividing power between state and federal sovereigns. McGinnis wonders, though, whether federalism can do the job today, now that states claim relatively little loyalty from their citizens. Check out the whole series.

Posted on by Marc O. DeGirolami

Dyer, “Natural Law and the Antislavery Constitutional Tradition”

A very interesting looking book by Justin Buckley Dyer (Missouri), which in part defends the traditional view of the relationship between natural law and opposition to slavery against recent revisionist attacks: Natural Law and the Antislavery Constitutional Tradition (CUP 2012).  The publisher’s description follows.

In Natural Law and the Antislavery Constitutional Tradition, Justin Buckley Dyer provides a succinct account of the development of American antislavery constitutionalism in the years preceding the Civil War. Within the context of recent revisionist scholarship, Dyer argues that the theoretical foundations of American constitutionalism – which he identifies with principles of natural law – were antagonistic to slavery. Still, the continued existence of slavery in the nineteenth century created a tension between practice and principle. In a series of case studies, Dyer reconstructs the constitutional arguments of prominent antislavery thinkers such as John Quincy Adams, John McLean, Abraham Lincoln, and Frederick Douglass, who collectively sought to overcome the legacy of slavery by emphasizing the natural law foundations of American constitutionalism. What emerges is an understanding of American constitutional development that challenges traditional narratives of linear progress while highlighting the centrality of natural law to America’s greatest constitutional crisis.

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Gedicks on Defending Establishment Clause Incorporation

Frederick Mark Gedicks (BYU – J. Reuben Clark Law School) has posted Establishment Clause Incorporation: A Logical, Textual, and Historical Defense. The abstract follows.

Incorporation of the Establishment Clause against the states is logically and textually impossible — so say most academics, many lower-court judges, and a Supreme Court justice. They maintain that because the Clause was originally understood as a mere structural protection of state power, it cannot coherently restrain state power or protect a personal due process liberty as required for incorporation. Anti-incorporationists also seem to think that the purported incoherence and textual inconsistency of Establishment Clause incorporation excuse serious engagement of Reconstruction history, since they ignore it except for the irrelevant Blaine Amendment defeated as the Reconstruction era ended.

If anti-incorporation critics are right, the entire body of Establishment Clause doctrine is doomed: Nearly every Supreme Court decision interpreting the Clause has involved a challenge to state action. Establishment Clause doctrine thus cries out for an account of its incorporation against the states that is both logically coherent and consistent with the liberty-protecting text of the 14th Amendment. Read more

Posted on by Marc O. DeGirolami

Harris and Kidd, eds., “The Founding Fathers and the Debate Over Religion in Revolutionary America”

Here is a useful historical study of the “Christian nation” question, The Founding Fathers and the Debate Over Religion in Revolutionary America: A History in Documents (OUP 2011), edited by Matthew L. Harris (Colorado State University-Pueblo) and Thomas S. Kidd (Baylor).  The publisher’s description follows.

Whether America was founded as a Christian nation or as a secular republic is one of the most fiercely debated questions in American history. Historians Matthew Harris and Thomas Kidd offer an authoritative examination of the essential documents needed to understand this debate. The texts included in this volume – writings and speeches from both well-known and obscure early American thinkers – show that religion played a prominent yet fractious role in the era of the American Revolution.

In their personal beliefs, the Founders ranged from profound skeptics like Thomas Paine to traditional Christians like Patrick Henry. Nevertheless, most of the Founding Fathers rallied around certain crucial religious principles, including the idea that people were “created” equal, the belief that religious freedom required the disestablishment of state-backed denominations, the necessity of virtue in a republic, and the role of Providence in guiding the affairs of nations. Harris and Kidd show that through the struggles of war and the framing of the Constitution, Americans sought to reconcile their dedication to religious vitality with their commitment to religious freedom.

Posted on by Marc O. DeGirolami

Classic Revisited: Tocqueville’s “Democracy in America”

This one will be familiar to many CLR Forum readers, but I was reminded of Alexis de Tocqueville’s wonderful work of comparative political science, Democracy in America (1835 & 1840) (readable in its entirety for free, people, for free!)  as I was preparing for my constitutional law class this spring.  Rather than reproducing the well-known tracts about American “democratic” religion, here’s a fragment from Tocqueville’s superb discussion of the unique position of the American federal judiciary.  Note in particular Tocqueville’s emphasis toward the end of the section I’ve reproduced on the fact that the American judge does not deal in “theoretical generalities,” but in very discrete factual particulars.  A proto-minimalist passage, perhaps.  From Volume I:

The first characteristic of judicial power in all nations is the duty of arbitration. But rights must be contested in order to warrant the interference of a tribunal; and an action must be brought before the decision of a judge can be had. As long, therefore, as a law is uncontested, the judicial authority is not called upon to discuss it, and it may exist without being perceived. When a judge in a given case attacks a law relating to that case, he extends the circle of his customary duties, without, however, stepping beyond it, since he is in some measure obliged to decide upon the law in order to decide the case. But if he pronounces upon a law without proceeding from a case, he clearly steps beyond his sphere and invades that of the legislative authority.

The second characteristic of judicial power is that it pronounces on special cases, and not upon general principles. If a judge, in deciding a particular point, destroys a general principle by passing a judgment which tends to reject all the inferences from that principle, and consequently to annul it, he remains within the ordinary limits of his functions. But if he directly attacks a general principle without having a particular case in view, he leaves the circle in which all nations have agreed to confine his authority; he assumes a more important and perhaps a more useful influence than that of the magistrate, but he ceases to represent the judicial power.

The third characteristic of the judicial power is that it can act only when it is called upon, or when, in legal phrase, it has taken cognizance of an affair. This characteristic is less general than the other two; but, notwithstanding the exceptions, I think it may be regarded as essential. The judicial power is, by its nature, devoid of action; it must be put in motion in order to produce a result. When it is called upon to repress a crime, it punishes the criminal; when a wrong is to be redressed, it is ready to redress it; when an act requires interpretation, it is prepared to interpret it; but it does not pursue criminals, hunt out wrongs, or examine evidence of its own accord. A judicial functionary who should take the initiative and usurp the censureship of the laws would in some measure do violence to the passive nature of his authority.

The Americans have retained these three distinguishing characteristics of the judicial power: an American judge can pronounce a decision only when litigation has arisen, he is conversant only with special cases, and he cannot act until the cause has been duly brought before the court. His position is therefore exactly the same as that of the magistrates of other nations, and yet he is invested with immense political power. How does this come about? If the sphere of his authority and his means of action are the same as those of other judges, whence does he derive a power which they do not possess? The cause of this difference lies in the simple fact that the Americans have acknowledged the right of judges to found their decisions on the Constitution rather than on the laws. In other words, they have permitted them not to apply such laws as may appear to them to be unconstitutional.

Read more

Posted on by Marc O. DeGirolami

Classic Revisited: Justice Joseph Story’s “Commentaries on the Constitution”

Justice Joseph Story’s Commentaries on the Constitution of the United States (1833) (available for free!) is a lively, opinionated, and rangy discussion of the original understanding of the Constitution.  Story was a Supreme Court justice from 1811-1845, and for much of that period he was also a professor at Harvard Law School (one could do both in those days).  Professor Michael Paulsen once aptly called Story’s 3-volume tour de force “comprehensive and brilliant, but often tendentious” and listed it as among the top five books of all-time about the Constitution.  Chief Justice William Rehnquist once used some of Story’s discussion of the Establishment Clause in his dissenting opinion in Wallace v. Jaffree (the moment of silence case).  Here is a good chunk of Story — sections 1865-1871 of his treatise — to give you a sense of his views and style:

§ 1865. And first, the prohibition of any establishment of religion, and the freedom of religious opinion and worship.  How far any government has a right to interfere in matters touching religion, has been a subject much discussed by writers upon public and political law. The right and the duty of the interference of government, in matters of religion, have been maintained by many distinguished authors, as well those, who were the warmest advocates of free governments, as those, who were attached to governments of a more arbitrary character.  Indeed, the right of a society or government to interfere in matters of religion will hardly be contested by any persons, who believe that piety, religion, and morality are intimately connected with the well being of the state, and indispensable to the administration of civil justice. The promulgation of the great doctrines of religion, the being, and attributes, and providence of one Almighty God; the responsibility to him for all our actions, founded upon moral freedom and accountability; a future state of rewards and punishments; the cultivation of all the personal, social, and benevolent virtues; — these never can be a matter of indifference in any well ordered community. It is, indeed, difficult to conceive, how any civilized society can well exist without them. And at all events, it is impossible for those, who believe in the truth of Christianity, as a divine revelation, to doubt, that it is the especial duty of government to foster, and encourage it among all the citizens and subjects. This is a point wholly distinct from that of the right of private judgment in matters of religion, and of the freedom of public worship according to the dictates of one’s conscience.

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Posted on by Marc O. DeGirolami

Paulsen on “The Most Important Religious Liberty Case of the Last 30 Years”

Constitutional scholar Michael Stokes Paulsen has an interesting piece about Widmar v. Vincent, which he describes as just that important.  In Widmar, the issue was whether UMKC, a state school, could exclude a Christian group from using its facilities to engage in religious worship on the same terms that other groups used them.  As Professor Paulsen notes, by an 8-1 vote, the Court said that it could not exclude the religious group.

An important piece of that case, which Paulsen notes and which was regrettably ignored and/or marginalized by the Second Circuit in its Bronx Household of Faith decision by drawing an irrelevant distinction between worship services and religious expression, was that there simply is no establishment concern that is activated by permitting religious groups to use public facilities for religious purposes on equal terms with others.  It is regrettable that the Supreme Court has denied cert. in Bronx Household, since it would have represented an occasion to reaffirm that principle.  Moreover, while state use of religious facilities may have been an establishment concern, the reverse was certainly not of concern as an original matter.  (See Donald Drakeman’s book)