Posted on by Marc O. DeGirolami

Bradley (ed.), “Challenges to Religious Liberty in the Twenty-First Century”

Here is a terrific collection of essays edited by Gerard V. Bradley (Notre Dame), Challenges to Religious Liberty in the Twenty-First Century (CUP 2012).  The contributors are CLR Forum guest Steve Smith and our friend Rick Garnett, as well as José Casanova, Tom Farr, Daniel Philpott, Christopher Tollefsen, William Inboden, Professor Bradley, and my old mentor and dear friend, Kent Greenawalt.  The publisher’s description follows.

Almost everyone today affirms the importance and merit of religious liberty. But religious liberty is being challenged by new questions (for example, use of the niqab or church adoption services for same-sex couples) and new forces (such as globalization and Islamism). Combined, these make the meaning of religious liberty in the twenty-first century uncertain. This collection of essays by ten of the world’s leading scholars on religious liberty takes aim at these issues. The book is arranged around five specific challenges to religious liberty today: the state’s responsibility to prevent coercion and intimidation of believers by others within the same faith community; the U.S.’s basic moral responsibilities to promote religious liberty abroad; how to understand and apply the traditional right of conscientious objection in today’s circumstances; the distinctive problems presented by globalization; and the viability today of an ‘originalist’ interpretation of the First Amendment religion clauses.

Posted on by Marc O. DeGirolami

New and Old Originalisms, Taxes, and the Establishment Clause

Not the most common threesome, it’s true, but united in this interesting piece by Joel Alicea and Donald Drakeman, The Limits of New Originalism.  For those that don’t know Drakeman’s work, you should check out his terrific Church, State, and Original Intent (here are some thoughts I wrote up about the book).  

The new piece argues that the “new” originalism faces an important problem when originalist materials point toward “two or more equally persuasive original public meanings.”  The authors focus on what would ordinarily be a relatively obscure tax case from 1796 — Hylton v. United States — which involved the constitutionality of a federal tax on carriages.  The case was actually cited fairly extensively by CJ Roberts in his NFIB opinion for the discussion about the direct taxation issue (see pp. 40-41).  The tax was resisted by Hylton, a Virginia businessman, and other Southerners who believed that it was inequitable because of the greater prevalence of carriages in the South (the strategy used to get to the Supreme Court at all is pretty neat too).  The case pitted Hamilton against Madison (who had argued against the tax’s constitutionality) and the issue was whether this new tax should be characterized as a direct tax or an excise tax, and “what to do when the best evidence of contemporary usage points in two directions.”  The arguments advanced by lawyers for and against the government proceed through all of the accepted new originalist sources — dictionaries, ordinary or customary usage before the framing of the Constitution (of many sorts), resistance to the “foreign Lexicons” of “consolidated” as opposed to “confederated” governments, commentaries, poems (do see Andrew Marvell’s verse on the excise tax as a “thousand eye[d]” “monster” — eat your heart out, Argus!), ratification materials, congressional debates, and so on.

Read more

Posted on by Marc O. DeGirolami

Classic Revisited: Eliade’s “The Sacred and the Profane”

Today’s classic revisited is one in the sociology and history of religion, Mircea Eliade’s The Sacred and the Profane: The Nature of Religion, first published in 1957 (the first edition pictured at right).  The field of religious studies, unlike theology, is a comparatively new one — beginning in earnest in the 19th century and heating up only in the 20th.  One connection to law is the ‘definition-of-religion’ issue: how can we find an essence or core of what religion is — and so what the scope is of the constitutional commitments against its establishment and to its free exercise.  The issue appeared in some of the Supreme Court’s mid-twentieth century conscientious objection to military service opinions, which, while not strictly about the Constitution (they were statutory interpretation decisions), confronted the Court with the problems of how to distinguish a religious reason of conscience from a different sort of reason, and whether to do so at all.  But there are other less obvious and so far unexplored connections to law, particularly constitutional law. 

The eminent and supremely cultivated theorist and historian of religion Mircea Eliade, Romanian by birth, taught at the University of Chicago after a turbulent early life.  Together with Joachim Wach and others, Eliade made Chicago the heart of the academic study of religion in the mid-late-20th century, and to this day it retains some of the preeminent figures in religious studies (J.Z. Smith, Martin Riesebrodt, and Jean Bethke Elshtain, among many others).

Though Eliade never had any particular influence on the Court (a treatise of his was cited in the majority opinion in the Lukumi Babalu decision, as well as in a handful of 2d and 3d circuit decisions), his ideas about the nature of religious experience are extremely interesting and possibly deserve further study by legal scholars and courts — including by those  interested in the psychology of originalism.  One of Eliade’s crucial ideas was that the conceptions of “sacred” and “profane” time differ fundamentally.  In sacred time, every time that we engage in a ritual or a ceremony, it serves to reactualize the “mythic beginning” which is “indefinitely recoverable, indefinitely repeatable.”  (69)  Sacred time is therefore cyclical; while profane time is linear.  That “beginning” is not to be found in a historical moment because no time can precede “the appearance of the reality narrated in the myth.”  (72)  It is in this way that sacred time (and, we might say, sacred legal time) creates fissures or what Eliade called moments of “hierophany” in the humdrum linearity of profane time, in which a (legal) “beginning” is recalled and reactualized in (legal) ritual.

Eliade’s writing (laced in part with the writing of Freud and Jung) has not penetrated the constitutional discourse, but it has something worthwhile to offer.

Posted on by Marc O. DeGirolami

Campbell on 19th Century Approaches to Religious Exemptions

Wesley J. Campbell, a student at Stanford Law School, has posted a very interesting looking note, A New Approach to Nineteenth-Century Religious Exemption Cases.  The abstract follows.  — MOD

Scholars frequently cite early nineteenth-century cases to ascertain the original meaning of the Free Exercise Clause. Previous studies, however, have ignored crucial trends in those decisions, thus leading to mistaken emphasis on the denial of religious accommodation claims. This Note argues that prevailing theological views, skepticism of courtroom declarations of religious belief, and contemporary notions of judicial deference better explain nineteenth-century cases than does a wholesale rejection of judicially enforceable religious exemptions. This novel approach clarifies previously unexplained tensions in early free exercise opinions. It also suggests that the Supreme Court’s holding in Employment Division v. Smith is inconsistent with many nineteenth-century decisions, notwithstanding Justice Scalia’s claim to the contrary in his concurrence in City of Boerne v. Flores.  Moreover, past studies have failed to appreciate the enormous midcentury shift in constitutional meaning in response to Mormon polygamy and widespread Catholic immigration. This transformation leaves originalism incapable of providing a consistent account of the Free Exercise Clause.

Posted on by Marc O. DeGirolami

Amar on the Establishment Clause as a Westphalian Resolution

Since the Treaty of Westphalia seems to be in the air here at CLR Forum, I thought I’d report a neat quote by renowned constitutionalist and Yale law professor Akhil Amar about the original Establishment Clause:

The original establishment clause, on a close reading, is not antiestablishment but pro-states’ rights; it is agnostic on the substantive issue of establishment versus nonestablishment and simply calls for the issue to be decided locally.  (In this respect it is the American equivalent of the European Peace of Augsburg in 1555 and the treaty of Westphalia in 1648, which decreed that religious policy would be set locally rather than imperially.) 

Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 34 (1998).  Others have, of course, challenged Amar’s conclusion that the Establishment Clause did not create any substantive right at all (Donald Drakeman’s excellent book does this quite nicely), but I thought the Westphalian analogy was thought-provoking.  — MOD

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Shulman on History and Discerning the Content of the Religion Clauses

The Journal of Law and Religion (Vol. XXVII, Hamline University School of Law, St. Paul, MN.) will soon publish The Siren Song of History: Originalism and the Religion Clauses, by Jeffrey Shulman of the Georgetown Law Center.  The article surveys three recent historical studies of the constitutional framers and their religious convictions; based on the studies, Shulman argues that historical research fails to discern in the spirituality of the founders enough coherent, unitary content to formulate an adequate originalist  interpretation of constitutional religious freedom.

At the outset, Shulman asserts, “[W]e are all originalists now”—meaning, in his view, that originalism has become a keystone to litigating freedom of religion questions.  Through his reviews, Shulman seeks to call into question this perceived judicial susceptibility to originalist-historical interpretation of the First Amendment.  He does so by arguing that history does not disclose a thorough, consistent enough picture of the founders’ religiosity to endow the Religion Clauses with “something determinate enough to serve a heuristic purpose in legal controversy.”

To illustrate his argument,  Shulman reviews The Forgotten Founders on Religion and Public Life (Daniel L. Dreisbach et al. eds., Notre Dame 2009) (see Professor DeGirolami’s discussion here), a collection of biographical outlines of under-acknowledged “founders” and their views on the relationships between religion, law, and society.  Among those outlines, the collection sketches Thomas Paine’s deism; the “quirky individual religion” of Benjamin Rush, a Philadelphia physician; and the moderate Anglicanism of first attorney-general, Edmund Randolph.

For further discussion of  The Forgotten Founders and the other two books Shulman surveys in The Siren Song, please follow the jump. Read more

Posted on by Marc O. DeGirolami

Drakeman’s “Church, State, and Original Intent”

Over the years, the Establishment Clause has become encrusted with various sorts of new meanings and applications.  I do not say this as a criticism (though I do think that some applications are regrettable) but merely as a description of the evolution of constitutional law as time has passed.  Those who are interested in a thorough and superb treatment of the original meaning of the Establishment Clause (and the original intentions of the framers, which is a different issue than the original meaning) will very much enjoy Donald L. Drakeman’s excellent Church, State, and Original Intent (CUP 2009), in which Drakeman uncovers evidence that the Establishment Clause was meant originally to do nothing more than forbid the establishment of a national church (as in England).  The publisher’s description follows.  — MOD

This provocative book shows how the United States Supreme Court has used constitutional history in church-state cases. Donald L. Drakeman describes the ways in which the justices have portrayed the Framers’ actions in a light favoring their own views about how church and state should be separated. He then marshals the historical evidence, leading to a surprising conclusion about the original meaning of the First Amendment’s establishment clause: the framers originally intended the establishment clause only as a prohibition against a single national church. In showing how conventional interpretations have gone astray, he casts light on the close relationship between religion and government in America and brings to life a fascinating parade of church-state constitutional controversies from the Founding Era to the present.