Things I Haven’t Figured Out — Part 3: Where’d the Framers Go?

Over the last couple of years, I’ve had the chance to talk about my church-state book at a few law schools.  At least twice, a distinguished Con Law professor responded along the lines of, “Sure, that may be what the establishment clause meant to the people who adopted it, but that’s not what we mean by ‘original meaning.’”

Around many law schools these days, “original meaning” has nothing to do with the people we often call the Framers.  Rather, the core of modern originalism is the search for “objective public meaning” – that is, what an average or reasonable person at the time would have understood the text to mean.  Some even point to a hypothetical ratifier with full knowledge of all the circumstances (essentially, in my view, a time-traveling law professor).

So what happened to the Framers?  Basically, they’ve been expelled along with all forms of “intentionalism,” now known as the Old Originalism of the “undertheorized” past.  Too many Framers for one intent, it seems.  And, besides, as Justice Scalia often points out, it’s often easy to find some Framer whose policy choices are the same as yours, thus allowing too much results-driven analysis.

These are good criticisms.  Just look at how the Supreme Court latched onto Madison and Jefferson to build its wall of separation jurisprudence without considering what anyone else might have thought.

What I find perplexing is that people believe that the hunt for objective public meaning avoids these problems.  Let’s look, for example, at the system of town-based taxes for Read more

Pandya, “Muslim Women and Islamic Resurgence”

Next Month, I. B. Tauris Publishers will publish Muslim Women and Islamic Resurgence: Religion, Education and Identity Politics in Bahrain by Sophia Pandya (California State University Long Beach).  The publisher’s description follows.

Bahrain’s tumultuous political landscape often overshadows the societal upheavals that this tiny country is facing. Sophia Pandya cuts through this to examine how international Islamic revivalism coupled with increased secular education has impacted Muslim women’s religious practice and public position. She unsettles assumptions that education is a secularising force for Muslim women, showing that modern education among Bahraini women has in fact deepened both their engagement with Islam and their political participation. Uncovering what transpires when newly educated women have the opportunity to reinterpret religion and gain access to the work place and the political arena, Pandya sheds light on the complex intersections between women and public life, education and Islam. This book provides great insights into religious women’s efforts towards self-determination within conservative Islamic movements as well as the impact of globalisation and wider economic and political developments in Bahrain.

Hallaq, “The Impossible State: Islam, Politics, and Modernity’s Moral Predicament”

This December, Columbia University Press will publish The Impossible State: Islam, Politics, and Modernity’s Moral Predicament by Wael B. Hallaq (Columbia University).  The publisher’s description follows.

Wael B. Hallaq boldly argues that the “Islamic state,” judged by any standard definition of what the modern state represents, is both an impossible and inherently self-contradictory concept. Comparing the legal, political, moral, and constitutional histories of pre-modern Islam and Euro-America, he finds the adoption and practice of the modern state to be highly problematic for modern Muslims. He then conducts a more expansive critique of modernity’s moral predicament, which renders impossible any project resting solely on ethical foundations.

The modern state not only suffers from serious legal, political, and constitutional issues, Hallaq argues, but it also, by its very nature, fashions a subject inconsistent with what it means to be, or to live as, a Muslim. By Islamic standards, the state’s technologies of the self are severely lacking in moral substance, and the Muslim state, as Hallaq shows, has done little to advance an acceptable form of genuine Shari‘a governance. The Islamists’ constitutional battles in Egypt and Pakistan, the Islamic legal and political failures of the Iranian Revolution, and similar disappointments underscore this fact. Nevertheless, the state remains the favored template of the Islamists and the ulama (Muslim clergymen). Providing Muslims with a path toward realizing the good life, Hallaq turns to the rich moral resources of Islamic history. Along the way, he proves political and other “crises of Islam” are not unique to the Islamic world nor to the Muslim religion. These crises are integral to the modern condition of both East and West, and recognizing such parallels enables Muslims to engage more productively with their Western counterparts.

Religious Freedom Debate Today with Koppelman and Paulsen

A reminder that today CLR will host a debate, “Religious Liberty in the 2012 Election,” at 4:00 PM at the St. John’s University Law School campus in Queens, New York. Our two debaters will be Andy Koppelman (Northwestern) and Mike Paulsen (St. Thomas). Both are known to have strong opinions, so the event promises to be a lively and provocative one.

If you’re in the neighborhood, please stop by. Details are here.

Things I Haven’t Figured Out — Part 2: Establishment Clause Heavy Lifting

Every time a church-state issue pops up – school vouchers or prayer, the Pledge, you name it – everyone runs to the establishment clause to see what the answer is.  And I’m wondering why we’re asking that clause to do so much work.

You’ll think the answer is obvious.  That’s where the Constitution’s governing statement about religion and government is found.  Just look at all those Supreme Court cases.

And you’re right.  The Supreme Court has, for the last 60 years or so, created its church-state jurisprudence around the first few words of the First Amendment.  But it didn’t have to be that way.  And, in fact, it most often wasn’t that way for 160 years before that.

Try this as a thought experiment.  Suppose, just for the sake of argument, that all the establishment clause did when it was adopted was say that there would be no national “Church of the United States.”  (I’ve devoted 1500 footnotes to saying just that in Church, State, and Original Intent, but you don’t have to agree with me.  This is just an experiment.)  In that case, the establishment clause per se wouldn’t have much, or anything, to say about all our hot-button church-state issues.

It seems to me that there could be interesting questions of delegated powers for federal church-state issues (see the Affordable Care Act litigation), and a chance to mull over equal protection issues for state ones (and perhaps federal ones if you favor reverse incorporation).  How about those largely ignored privileges and immunities, and the last couple of provisions in the Bill of Rights?  You can no doubt think of others.

I’m not proposing an answer here – just suggesting that, as a diversion from the inevitable less-filling/tastes-great debates between the strict separationists and their establishment clause foes, it might be intellectually freeing (and, at least in my view, more historically accurate) to think about church-state issues without all those layers of establishment clause doctrine.

Don Drakeman