I am in the middle of reading Robert Hugh Benson’s historical novel “Come Rack! Come Rope!” which chronicles the lives of English Catholics under Queen Elizabeth. Prominently featured in the book’s early going are the various fees and fines imposed upon those Catholics who failed to abide by the government’s bidding and attend Anglican church services.
As I read today’s Supreme Court decision regarding the “Patient Protection and Affordable Care Act”, I am struck by a certain parallel.
An extremely interesting work of imperial history by Christopher
Hodson (BYU) involving an understudied episode in Canadian religious history, The Acadian Diaspora: An Eighteenth Century History (OUP 2012). The publisher’s description follows.
Late in 1755, an army of British regulars and Massachusetts volunteers completed one of the cruelest, most successful military campaigns in North American history, capturing and deporting seven thousand French-speaking Catholic Acadians from the province of Nova Scotia, and chasing an equal number into the wilderness of eastern Canada. Thousands of Acadians endured three decades of forced migrations and failed settlements that shuttled them to the coasts of South America, the plantations of the Caribbean, the frigid islands of the South Atlantic, the swamps of Louisiana, and the countryside of central France.
The Acadian Diaspora tells their extraordinary story in full for the first time, illuminating a long-forgotten world of imperial desperation, experimental colonies, and naked brutality. Using documents culled from archives in France, Great Britain, Canada, and the United States, Christopher Hodson reconstructs the lives of Acadian exiles as they traversed oceans and continents, pushed along by empires eager to populate new frontiers with inexpensive, pliable white farmers. Hodson’s compelling narrative situates the Acadian diaspora within the dramatic geopolitical changes triggered by the Seven Years’ War. Faced with redrawn boundaries and staggering national debts, imperial architects across Europe used the Acadians to realize radical plans: tropical settlements without slaves, expeditions to the unknown southern continent, and, perhaps strangest of all, agricultural colonies within old regime France itself. In response, Acadians embraced their status as human commodities, using intimidation and even violence to tailor their communities to the superheated Atlantic market for cheap, mobile labor.
Through vivid, intimate stories of Acadian exiles and the diverse, transnational cast of characters that surrounded them, The Acadian Diaspora presents the eighteenth-century Atlantic world from a new angle, challenging old assumptions about uprooted peoples and the very nature of early modern empire.
Apropos of my post below, have a look at this column by Ross Douthat this morning about judicial restraint. I have some doubts about the work that judicial restraint is sometimes asked to do, and the contexts in which it is invoked. But Douthat, it seems to me, is onto something important when he says: “It should be a point of bipartisan consensus that the judiciary is a political body rather than a panel of Platonic Guardians, and it’s a healthy thing for our democracy to have the other branches of government ready to push back when the high court seems to overreach.”
The “push back” might take the form of the sorts of structural reforms Douthat discusses. But it need not do so. In fact, it may be better if it did not do so. It might instead take the form of substantive push back, based on the obligations of nonjudicial actors to think the merits of constitutional issues through on their own and to live up to their Article VI oaths.
The Rhode Island legislature recently sent a bill to Governor Lincoln Chafee designating a latin cross which is part of a war memorial in Woonsocket, Rhode Island as having attained “secular, traditional, cultural, or community recognition and/or value,” notwithstanding the cross’s “recognizable identification with a known or established religion.”
Governor Chafee has indicated that the bill will become law without his signature. The story above reports that the Governor stated that it is “up to” “the courts” to determine whether the cross violates the Establishment Clause: “‘[P]assing the bill does not change the fact-finding mission in which the courts must engage to resolve these questions.”
Actually, Governor, it is “up to” you, too. Article VI of the Constitution is plain that “[t]he Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution . . . .” Of course, opining on questions of this kind is politically delicate. But it is quite wrong for the Governor to suggest that it is not explicitly his responsibility as the chief executive officer of the state of Rhode Island to form an opinion based on his own “fact-finding” about the constitutionality of this symbol.
(h/t Religion Clause blog)
According to a news report from today’s Times of Israel, a German court has held that the circumcision of children constitutes “severe and irreversible interference into physical integrity” and is as such prohibited unless medically necessary.
Could Americans be confronted by a similar decision someday?
Last week, Marc posted about the fantastic exhibit of the Vatican archives currently underway at the Capitoline Museum in Rome. One of the documents on display is Lorenzo Valla’s definitive refutation of the so-called “Donation of Constantine.” Forgotten today, except by historians of law and religion, the Donation played an important role in justifying papal assertions of temporal power in the Middle Ages.
The Donation was a purportedly an imperial decree, signed by the Emperor Constantine, granting the entirety of the Western Roman Empire to Pope Sylvester I and his successors. Constantine supposedly made this gift in 
gratitude for Sylvester’s actions in miraculously curing him of leprosy and baptizing him in the Christian faith. Throughout the Middle Ages, the Donation was taken as authentic, and it played a major role in justifying papal assertions during the investiture crisis that Harold Berman famously described in Law and Revolution. By the Renaissance, however, scholars within the Church had begun to have doubts. On the basis of textual analysis, Valla, a priest, demonstrated that the Donation was a forgery in the fifteenth century. Protestant reformers made much of the forgery in their arguments against the Catholic Church.
All this is fun for law-and-religion nerds, but, back when people believed it to be true, the Donation was the subject of some powerful art. On the Coelian Hill near the Colosseum, off a very quiet street, stands a medieval church called Santi Quattro Coronati. In the church’s courtyard, a separate entrance leads to the Oratory of St. Sylvester, where — after giving a small donation — you can see a series of medieval frescoes that tell the whole story: Constantine’s illness, his subjects’ despair, his miraculous cure by Pope Sylvester, and the Donation itself (above). In their credulity, the frescoes are really rather charming. It’s definitely worth going out of your way to see them — even if you’re not a law-and-religion nerd, and even if the story is a complete hoax.
Kimberley Brownlee (Warwick U.) has posted Conscientious Objection and Civil Disobedience. The abstract follows.
This paper looks at two types of dissent that are generally described as conscientious, namely, civil disobedience and conscientious objection. Both practices raise pressing normative questions about the proper parameters of dissenters’ rights and duties in a reasonably good society. They also raise questions about both the scope of legitimate toleration of assertions of conscientiousness and the appropriate legal and political responses to conscientious disobedience. The paper gives a qualified endorsement of the moral justifiability of these two practices. It also explores their credentials as moral rights and their legal defensibility. The paper challenges the dominant liberal view that, in relation to both moral rights and legal defenses, a more compelling case can be made for private conscientious objection than for civil disobedience.
Steven H. Resnicoff (DePaul U. College of Law) has posted Extraordinary Sources of Jewish Law: the Example of Capital Punishment. The abstract follows.
Most Jewish law scholarship, especially that which is published in English, focuses on only one of Jewish law’s criminal law enforcement systems, namely, the operation of the rabbinic court system pursuant to the rules set forth in the Pentateuch, as interpreted in the Babylonian Talmud. In fact, this literature usually fails even to acknowledge the existence of the two other law enforcement systems: (1) enforcement by rabbinic courts functioning under their “extraordinary powers”; and (2) and enforcement by a Jewish king. These two systems vary enormously as to the procedural protections they provide and as to their practical consequences. Failing to examine them causes one to very seriously misunderstand how Jewish law functioned throughout history and paints a rather “Pollyanna-like” portrait of Jewish law.
This submission constitutes Chapter 8 of my book, “Understanding Jewish Law,” published by LexisNexis in June 2012. It explains the dramatic differences among these three criminal law enforcement systems and documents the pragmatic steps taken by rabbinic authorities responsible for providing a safe and stable social environment.
The Supreme Court has denied certiorari in the Ninth Circuit’s Mt. Soledad cross case, Trunk v. City of San Diego.
Justice Alito issued a separate statement regarding the denial of cert. Note that this is not a dissent from the denial of cert., but only a “statement.” In his statement, Justice Alito makes clear that he agrees with the decision to deny cert. at this time. The reason is the posture of the case. In the Ninth Circuit decision, the panel (in an opinion by Judge McKeown) had not required that the cross be removed. Instead, it had only required that the memorial in toto be modified so as to pass constitutional muster, in conformity with the approach the court laid out. Justice Alito wrote:
Because no final judgment has been rendered and it remains unclear precisely what action the Federal Government will berequired to take, I agree with the Court’s decision to denythe petitions for certiorari. Our denial, of course, does not amount to a ruling on the merits, and the Federal Government is free to raise the same issue in a later petition following entry of final judgment.
(footnotes and citations omitted).
I have mentioned this before, but if you have not read Judge McKeown’s Trunk opinion, you’d do yourself a favor by checking it out. One can agree or disagree with the outcome (I have my own disagreements with it), but I believe it to be a model of judicial craftsmanship and method. Or…just wait for next spring to see in greater detail why I think Trunk is an elegant and methodologically appealing decision!
This collection of essays edited by James K. Wellman (Jackson School of International Studies) and Clark B. Lombardi (University of Washington), Religion and Human Security: A Global Perspective (OUP 2012), looks worth checking out, particularly for those who are interested in national security law and religion. The publisher’s description follows.
Since the1950s the world has witnessed a period of extraordinary religious revival in which religious political parties and non-governmental organizations have gained power around the globe. At the same time, the international community has come to focus on the challenge of promoting global human security. This groundbreaking book explores how these trends are interacting. In theoretical essays and case studies from Turkey, Egypt, Pakistan, the Americas, Africa and Europe, the contributors address such crucial questions as: Under what circumstances do religiously motivated actors advance or harm human welfare? Do certain state policies tend to promote security-enhancing behavior among religious groups? The book concludes by providing important suggestions to policymakers about how to factor the influence of religion into their evaluation of a population’s human security and into programs designed to improve human security around the globe.