Movsesian at GMU This Week



For our readers in the DC area, I’ll be speaking on Friday at George Mason University’s Scalia Law School, at a conference on Religion and the Administrative State. The conference is hosted by the law school’s Center for the Study of the Administrative State, whose talented and indefatigable director, Adam White, has put together a great lineup of which I am proud to be a part. I’ll be speaking (via the Web) on the Court’s decision last term in Masterpiece Cakehop, specifically, what the decision suggests about cultural and political trends in the US. The conference details are available here.

Around the Web

Here are some important law-and-religion news stories from around the web:

An Account of Originalism and Natural Law

I’ve been seeing an increasing number of natural law–or natural law-influenced–accounts of various legal disciplines. Something like a newly emerging applied natural law genre. There are property scholars that take a natural law view. There are scholars of legal interpretation strongly influenced by natural law views. There are constitutional scholars whose view of originalism depends upon a natural law view. And there are probably others writing in other fields that I am now forgetting.

Into the last category falls my friend and colleague at Princeton’s James Madison Program this spring, Professor Lee J. Strang. Here is his wonderful looking new book on originalism and natural law, Originalism’s Promise: A Natural Law Account of the American Constitution (Cambridge University Press).

“The foundation of the American legal system and democratic culture is its longstanding written Constitution. However, a contentious debate now exists between Originalists, who employ the Constitution’s original meaning, and Nonoriginalists, who argue for a living constitution interpretation. The first natural law justification for an originalist interpretation of the American Constitution, Originalism’s Promise presents an innovative foundation for originalism and a novel description of its character. Originalism’s Promise provides a deep, rich, and practical explanation of originalism, including the most-detailed originalist theory of precedent in the literature. Of interest to judges, scholars, and lawyers, Originalism’s Promise will help all Americans better understand their own Constitution and shows why their reverence for it, its Framers, and its legal system, is supported by sound reasons. Originalism’s Promise is a powerful contribution to the most important theory in constitutional interpretation.”

Essays on Christian Jurists in America

Here’s what looks like a must-read–a collection of essays on important Christian jurists in America, with entries for both well-known and lesser-known figures (some judges, some jurisprudes and scholars of law). Congratulations to some of our Center friends who are contributors (including one of our board members, Donald Drakeman)! The book is Great Christian Jurists in American History (Cambridge University Press), edited by two leading figures in this area, Daniel L. Dreisbach and Mark David Hall.

“From the early days of European settlement in North America, Christianity has had a profound impact on American law and culture. This volume profiles nineteen of America’s most influential Christian jurists from the early colonial era to the present day. Anyone interested in American legal history and jurisprudence, the role Christianity has played throughout the nation’s history, and the relationship between faith and law will enjoy this worthy and unique study. The jurists covered in this collection were pious men and women, but that does not mean they agreed on how faith should inform law. From Roger Williams and John Cotton to Antonin Scalia and Mary Ann Glendon, America’s great Christian jurists have brought their faith to bear on the practice of law in different ways and to different effects.”

Around the Web

Here are some important law-and-religion news stories from around the web:

On Our Insurmountable Divisions?

One cannot go more than a few days without seeing a new book that offers both the diagnosis and the solution to the increasing fragmentation and polarization of American civic and political life. But might the diagnosis part be so tricky, and the problems so deep-seated, that there may actually be no solution at all?

So seems to suggest a new and interesting book, One Nation, Two Realities: Dueling Facts in American Democracy (Oxford University Press), by political scientists Morgan Marietta and David C. Barker.

“The deep divides that define politics in the United States are not restricted to policy or even cultural differences anymore. Americans no longer agree on basic questions of fact. Is climate change real? Does racism still determine who gets ahead? Is sexual orientation innate? Do immigration and free trade help or hurt the economy? Does gun control reduce violence? Are false convictions common?

Employing several years of original survey data and experiments, Marietta and Barker reach a number of enlightening and provocative conclusions: dueling fact perceptions are not so much a product of hyper-partisanship or media propaganda as they are of simple value differences and deepening distrust of authorities. These duels foster social contempt, even in the workplace, and they warp the electorate. The educated — on both the right and the left — carry the biggest guns and are the quickest to draw. And finally, fact-checking and other proposed remedies don’t seem to holster too many weapons; they can even add bullets to the chamber. Marietta and Barker’s pessimistic conclusions will challenge idealistic reformers.”

Brague on Medieval Wisdom for the Modern Age

And speaking of prodigiously prolific authors, here is Rémi Brague’s first book authored in English–Curing Mad Truths: Medieval Wisdom for the Modern Age (University of Notre Dame Press).

“In his first book composed in English, Rémi Brague maintains that there is a fundamental problem with modernity: we no longer consider the created world and humanity as intrinsically valuable. Curing Mad Truths, based on a number of Brague’s lectures to English-speaking audiences, explores the idea that humanity must return to the Middle Ages. Not the Middle Ages of purported backwardness and barbarism, but rather a Middle Ages that understood creation—including human beings—as the product of an intelligent and benevolent God. The positive developments that have come about due to the modern project, be they health, knowledge, freedom, or peace, are not grounded in a rational project because human existence itself is no longer the good that it once was. Brague turns to our intellectual forebears of the medieval world to present a reasoned argument as to why humanity and civilizations are goods worth promoting and preserving.”

A Negative Treatment of Conformity (and a bunch of non-conforming questions)

It seems like only a few weeks ago (in fact, it was only a few weeks ago) that I was talking about a new book by Professor Cass Sunstein on the nature of “freedom.” Here is a new volume by Professor Sunstein on the perils of “conformity.” Yet some of what is in the blurb below raises questions, at least for me. What’s the difference between merely “conforming” as opposed to “suppressing” one’s own views about “what is true and what is right”? Don’t we suppress our own views about what is true and right in response to our social milieu and our sense about whether that milieu does, in fact, reflect “what is true and what is right”? And why would we think that dissent in the service of what we believe to be “true and right” would necessarily be socially beneficial? It might be, under some circumstances, I suppose. But not everyone’s sense of what is true and right might actually be socially beneficial. Under those circumstances, should’t we root for conformity? So many questions! I guess I’ll need to read the book to find out!

The book is Conformity: The Power of Social Influences (NYU Press), by Cass R. Sunstein.

“We live in an era of tribalism, polarization, and intense social division—separating people along lines of religion, political conviction, race, ethnicity, and sometimes gender.  How did this happen? In Conformity, Cass R. Sunstein argues that the key to making sense of living in this fractured world lies in understanding the idea of conformity—what it is and how it works—as well as the countervailing force of dissent.

An understanding of conformity sheds new light on many issues confronting us today: the role of social media, the rise of fake news, the growth of authoritarianism, the success of Donald Trump, the functions of free speech, debates over immigration and the Supreme Court, and much more.

Lacking information of our own and seeking the good opinion of others, we often follow the crowd, but Sunstein shows that when individuals suppress their own instincts about what is true and what is right, it can lead to significant social harm. While dissenters tend to be seen as selfish individualists, dissent is actually an important means of correcting the natural human tendency toward conformity and has enormous social benefits in reducing extremism, encouraging critical thinking, and protecting freedom itself.

Sunstein concludes that while much of the time it is in the individual’s interest to follow the crowd, it is in the social interest for individuals to say and do what they think is best.  A well-functioning democracy depends on it.”

Around the Web

Here are some important law-and-religion news stories from around the web:

The Non-Religious Aims of the Crusades

The history of the Crusades, like any other, is contested territory among historians. It isn’t my area, but the two very distinguished historians of the Crusades with whose work I am even somewhat familiar–Jonathan Riley-Smith and Christopher Tyerman–take different approaches to their subject. Professor Riley-Smith’s view focuses on the distinctively religious, and righteously religious, component of the Crusades–the Crusades not as occasion for plunder and subjugation but quite the opposite: as just defensive wars and religiously motivated pilgrimages that were often financially and personally ruinous to their undertakers. Professor Tyerman, while not at all ignoring the dimension of religious ideas, instead tends to focus more on the institutional dimensions of the Crusades and how these series of wars were motivated by and affected the non-religious civic and social spheres (Tyerman is also the author of an interesting study in the historiography of the Crusades). No doubt this description misses many important points of union and division.

Here is a new book on the Crusades by Professor Tyerman, The World of the Crusades (Yale University Press).

“Throughout the Middle Ages crusading was justified by religious ideology, but the resulting military campaigns were fueled by concrete objectives: land, resources, power, reputation. Crusaders amassed possessions of all sorts, from castles to reliquaries. Campaigns required material funds and equipment, while conquests produced bureaucracies, taxation, economic exploitation, and commercial regulation. Wealth sustained the Crusades while material objects, from weaponry and military technology to carpentry and shipping, conditioned them.
This lavishly illustrated volume considers the material trappings of crusading wars and the objects that memorialized them, in architecture, sculpture, jewelry, painting, and manuscripts. Christopher Tyerman’s incorporation of the physical and visual remains of crusading enriches our understanding of how the crusaders themselves articulated their mission, how they viewed their place in the world, and how they related to the cultures they derived from and preyed upon.”

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