I’ve enormously enjoyed Don Drakeman’s posts, and had questions for the readership here (and for Don!) about this post involving original meaning and original intent. Don raises a number of points that I’ve been having a hard time wrapping my mind around with respect to the contemporary discussion of new (or new new) originalism. First, are there still advocates (besides Don) of the utility of original intent originalism floating about? I think there are (Larry Alexander comes to mind, and I have a memory of something on this by Steve Smith, too) but they seem to be grossly (and increasingly?) outnumbered by original meaning originalists. I should also note that Don, from my reading of his work, is not exclusivist about original intent. He simply thinks it might be useful evidence to consider. Second, is what Don says about the equivalence between the substantial underdeterminacy of original meaning originalism and original intent originalism accepted by original meaning originalists (see Don’s example about the varying interpretations of establishment in Massachusetts and New Hampshire, and for more examples, see his book)? There may, of course, be reasons to opt for original meaning over original intent (though the hypothetical time-traveling law professor analogy presents its own problems), but isn’t Don right that mitigating the problems of underdeterminacy surely is unlikely to be one of them?
This January, Transaction Publishers will publish The Serpentine Wall: The Winding Boundary between Church and State in the United States by James F. Harris (College of William and Mary). The publisher’s description follows.
The Serpentine Wall is chronologically structured, befitting a history of church-state separation in the United States. It begins with a history of ideas approach to the European backgrounds and colonial American experiments in theocracy and freedom of religion. It covers pre-modern American debates about religious freedom among the founding generation right up through the nineteenth century. The final section of the book focuses on the separation of church and state and how this has become a matter determined by the Supreme Court.
The resolution of the proper interpretation of the religious clauses of the First Amendment and the course of the boundary between church and state has been slow. Many changes that took place throughout the nineteenth and the first half of the twentieth century have influenced the increasingly circuitous route taken by the Serpentine Wall between the two. The result has been an increased focus on social issues involving questions of interpretation of the establishment and free exercise clauses of the First Amendment.
The founding of the United States was a unique event in human history and the result of factors that are unlikely to be repeated. To understand the founding of a democratic country with a unique arrangement between church and state, it is important to view that development as both a product of and a departure from what had come before. Harris’ interesting, unique, philosophical viewpoint will be important to those interested in how the roles of church versus state have evolved in the United States.
Last week, a New Hampshire jury nullified criminal charges brought against a 59 year-old Rastafarian accused of growing 15 marijuana plants near his home. The defendant, Doug Darrell, claimed that the marijuana was used as part of his religious practices. The defense attorney sought a jury nullification instruction and it was granted by Belknap County Superior Court Judge James O’Neill. According to one report, the judge gave the following instruction: “Even if you find that the State has proven each and every element of the offense charged beyond a reasonable doubt, you may still find the defendant not guilty if you have a conscientious feeling that a not guilty verdict would be a fair result in this case.” The marijuana plants were spotted by a National Guard helicopter as part of a coordinated operation with NH State Police.
This case raises questions as to whether jury nullification is a viable way to protect the rights of religious minorities from criminal prosecution. Read one way, this case may suggest that jury nullification is a tool for local communities to protect the rights of such minorities from the unintended consequences of a generally applicable law. Rastafarianism is by no means a popular religion in the US (I daresay this is especially true in the Granite State), and I doubt that NH legislators had the religion in mind when they passed the law prohibiting marijuana possession. Yet a group of twelve citizens decided not to apply the neutral, generally applicable law (see Employment Division v. Smith) because it substantially burdened one adherent’s beliefs.
Read another way, jury nullification only worked here because of a number of other factors, unrelated to Mr. Darrell’s religion. In fact, one juror stated that Mr. Darrell’s religion had nothing to do with the jury’s decision. One cannot ignore, for example, the fact that this case involved a criminal act many people are familiar with and do not consider wrongful (i.e. growing marijuana for personal use). I wonder if the jury would have nullified had Mr. Darrell been a member of the Santeria religion charged with animal cruelty (see Church of Lukumi Babalu Aye v. City of Hialeah). Another aspect is the personal story involved. Mr. Darrell is a 59 year-old, mild-mannered man who has been married for 38 years and has 4 grown children, who are “successful in their fields.” Again, I wonder if the jury would have nullified had Mr. Darrell been a loud, unrepenting agitator, arrested while picketing military funerals (See Snyder v. Phelps).
Jury nullification, therefore, seems like one way to protect religious minorities from prosecution. However, whether a jury will actually do so depends much less on the lofty ideals of respect for religious freedom or diversity and more on the mundane issues of familiarity and likeability.
This August, ABA Publishing (American Bar Association) published Practicing Shariah Law: Seven Strategies for Achieving Justice in Shariah Courts by Hauwa Ibrahim (Saint Louis University School of Law). The publisher’s description follows.
Practicing Law in Shariah Courts: Seven Strategies for Achieving Justice in Shariah Courts describes the Shariah courts of Northern Nigeria, and offers advice for counsel practicing in Shariah courts worldwide, particularly in cases involving women.
In this important book, you’ll find insight into practicing law in Shariah courts, and some questions that arise from being on the field, from the authors experience of seeking justice under these laws both legally and spiritually.
The introduction of new Shariah in Northern Nigeria in 1999 set in place a delicate and flexible boundary between the rule of law and individual interpretations of the Law that are unjustifiably causing individual and social ills. This important book is part of a dialogue for learning the terrain and how best to work around the disparities in the new Shariah, exploring ethical issues drawn from various sources, including the Holy Qur’an, Hadith, and Sunnah. Although their application is discussed within the legal contour of Shariah law in Northern Nigeria, the strategies are not confined to any one framework of reference and may be a valued resource to many.
The book contains the author’s reflection of her experiences while defending clients in Shariah courts. It is a book written by a legal practitioner, sharing the strategies and resources that have served her well throughout her career. The multilayered composition of this book, weaving together Islamic law, national laws, international treatises, and religious texts is intent on providing lawyers all possible avenues for drafting a defense strategy that reflects the integrity of Shariah and upholds the values of the community.
Since their implementation and subsequent codification from 2000 to 2003, Shariah law codes have been regularly amended. This book reflects the latest of the amendments known to the author. The strategies and resources outlined in this book move past them and look toward the overarching ideal of justice and fairness, placing them in a space that sustains the functional character of the work.