March 9, 2012 - LAW AND RELIGION FORUM

One of the books that I’ve learned most from in the last few years is James R. Stoner’s terrific Common-Law Liberty: Rethinking American Constitutionalism (2003). Stoner’s thesis is not only that American constitutional law cannot be understood well without reference to the common law tradition, but that “the common law is a key guide to understanding the fundamental principles of our Constitution and a guide for deciding contemporary constitutional cases.” Common-law constitutionalism has been taken in different directions in recent years (see, e.g., David Strauss’ interesting work). But it is in Stoner that, in my view, one sees the purest and most convincing expression of common-law constitutionalism.

Here is a particularly insightful passage from the book (at 59) dealing with common-law constitutionalism with respect to the religion clauses.

To attend to the common-law moment in exploring the law of free exercise is, in other words, to examine as a source of law the American experience of religious liberty, as it can be collected from constitutions and statutes, and even from the laws and traditions of particular churches. Obviously, these various sources of law will not weigh equally in a court’s determination of a particular dispute before it, but it is characteristic of common law to determine the applicability of rules in the context of the facts of the instant case, not to seek a single rule or theory to encompass all imaginable cases. It is, for example, not irrelevant to such a consideration that common law itself arose in a particular religious context . . . . Nor is it irrelevant to such a consideration that American circumstances with regard to religion, at the time of the Founding and perhaps still today, are unique, and that those circumstances vary markedly from state to state. To recommend a common-law perspective, then, is to suggest avenues of inquiry rather than to propose a ready theory. Yet it does suppose a certain openness to experience, both in its deference to the wisdom collected in tradition and in its willingness to entertain the possibility of a genuinely new and unanticipated case.

Yesterday, I was chatting with a student here at St. John’s who told me about the KONY 2012 campaign that has gone viral, receiving tens of millions of hits in just a few days this week. KONY 2012 is a campaign by a non-profit organization called Invisible Children to arrest and bring to trial Joseph Kony, the leader of the so-called Lord’s Resistance Army, which has been terrorizing Uganda. In particular, the campaign alleges, Kony has been involved with the abduction of tens of thousands of children to serve as soldiers in the LRA. The campaign wants Kony prosecuted for war crimes.

One reason the campaign has gone viral is that Invisible Children has targeted Christian activists in America, who have been promoting KONY 2012 on their blogs. (Although Invisible Children is not a sectarian organization, its founders are apparently Christians whose zeal derives at least in part from their Christian convictions). According to Christianity Today, however, these activists have begun to have second thoughts. Apparently, Invisible Children has a mixed record for transparency and truth-telling. Critics also point out that Invisible Children backs the Ugandan army, which itself has been accused of human-rights violations. The story is here.