Posted on by Marc O. DeGirolami

The Nationalist Providentialism of Justice John Marshall Harlan

In a richly detailed new article, Professors Josh Blackman (South Texas) and Justice JM HarlanBrian Frye (Kentucky), together with Michael McCloskey of the Harlan Institute for Constitutional Studies, discuss the constitutional jurisprudence of Justice John Marshall Harlan by exploring his turn-of-the-century lectures at what was then the Columbian College of Law (now GW). My old students will remember Justice Harlan for, among other opinions, his famous dissent in Plessy v. Ferguson. The paper is very interesting on many fronts, but the authors’ reconstruction of Harlan’s nationalist providentialism (Harlan himself, the authors write, was a “devout Presbyterian”) really caught my eye (particularly in light of a paper I am now working on involving a contemporary judge with not entirely dissimilar views):

In his lectures, Justice Harlan expressed a strong belief in American exceptionalism and in the role of providence in America’s success. He saw a tight connection between the rule of law and religion, and considered them both essential to America’s prosperity. For Harlan, constitutional liberty consisted of the common law rights of Englishmen, secured by the Constitution and realized by the Court. The primary merit of a written Constitution was to render immutable traditional common law rights. And those common law rights were secured and realized only by special providences, indelibly marked by blood and fire. Harlan argued that the Fourteenth Amendment incorporated the Bill of Rights against the states. He believed that the Constitution expressed the “providential” purpose of the United States. Discussing the clause that requires that officers must swear to uphold the Constitution, Harlan asks, “Is there any country on the Earth that has in its statutes or laws a provision like that? Not one.” ….

Harlan’s republicanism committed him to popular sovereignty, civic virtue, and self-governance. Other Justices saw the rights guaranteed by the Constitution as abstract, derived from reason and practicality. For some, like Holmes and Brandeis, it meant legal realism. By contrast, Harlan saw constitutional rights as elements of a shared culture, and the extension of them to the states through the Constitution as a means of promoting and preserving national unity. By affirming a common American heritage, rooted in “Anglo-Saxon” liberties, the Court, through the Bill of Rights and the constitutional privileges and immunities it protected, could help create a unified nation, one with the ideological strength to overcome sectional and racial differences. Harlan’s lectures were one tool for accomplishing this goal.

Posted on by Mark Movsesian

Robert Bellah, RIP

Word comes that sociologist Robert Bellah (left) has passed away at the age of 86. Bellah was famous for his work on American civil religion–indeed, he reintroduced that concept to American law in the 1960s–and the magisterial Habits of the Heart, a book he co-authored in 1985. Habits remains remarkably relevant today, particularly in its famous discussion of “Sheilaism,” the thoroughly individualist spirituality that appeals to so many Americans, particularly the growing number of “Nones.” When he died, he was working on a new book, Religion in Human Evolution. Matt Schmitz has a tribute on the First Things site. RIP.

Posted on by Marc O. DeGirolami

Welcome to Robert Delahunty

Mark and I are pleased to welcome Professor Robert J. Delahunty of the University of St. Thomas School of Law, who will be posting with us for the month of August. Most of his scholarship is in international and constitutional law, but he has interests in law and religion as well. His most recent project concerns Tocqueville’s views on individualism and religion in America. Welcome, Robert!

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Lee, “Religion and Politics in the Middle East: Identity, Ideology, Institutions, and Attitudes”

This July, Westview Press published a new edition of Religion and Politics in the Middle East: Identity, Ideology, Institutions, and Attitudes, by Robert D. Lee (Colorado College). The publisher’s description follows.

This innovative book analyzes the relationship between religion and politics in the Middle East through a comparative study of five countries—Egypt, Israel, Turkey, Iran, and Saudi Arabia. Robert D. Lee examines each country in terms of four domains in which state and religion necessarily interact: national identity, ideology, institutions, and political culture. In each domain he considers contradictory hypotheses, some of them asserting that religion is a positive force for political development and others identifying it as an obstacle. Among the questions the book confronts: Is secularization a necessary prerequisite for democratic development? How is it and why is it that religion and politics are so deeply entangled in these five countries? And, why is it that all five countries differ so markedly in the way they identify themselves and use religion for political purposes? The book argues that the nature of religious organization and practice in the Middle East must be understood in the context of individual nation states.
The second edition is updated throughout and includes an entirely new chapter discussing the political and religious climate in Saudi Arabia. Earlier introductory analysis has been condensed to make room for new material, and chronologies at the end of each chapter have been added to help students understand the broader context. The second edition of Religion and Politics in the Middle East is a robust addition to courses on the Middle East.
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Karraker, “Diversity and the Common Good: Civil Society, Religion, and Catholic Sisters in a Small City”

This July, Lexington Books published Diversity and the Common Good: Civil Society, Religion, and Catholic Sisters in a Small City, by Meg Wilkes Karraker (University of St. Thomas). The publisher’s description follows.

Diversity and the Common Good: Civil Society, Religion, and Catholic Sisters in a Small city examines how Catholic Sisters and their congregations have been critical nodes in religious and civil networks, translating their social capital to address one of the most pressing issues facing communities today: diversity. The book begins with a regional overview, placing “Bluffton” in historical, cultural, and social context in America’s heartland before describing past racist incidents in the city and region, including cross-burnings and a raid by Immigration Control and Enforcement (ICE). Into this history are woven interviews with Catholic sisters and Catholic, Protestant, and Jewish religious leaders, as well as civic leaders in education, government, journalism, and social welfare. “Bluffton” is revealed as a community that has confronted and resolved a past stained by overt racism of the ugliest kind, and has created a good society for her citizens through the concerted efforts of her Catholic Sisters and a highly committed civil society.

Blending original quantitative and qualitative research collected over three years, as well as scholarship on civil society, Diversity and the Common Good tells the story of one small city in the Midwestern United States in the second decade of the twenty-first century. The work is well grounded in the academic literature and includes an extensive bibliography, but is written in a narrative style that engages not only scholars from sociology, community studies, political science, public administration, and religious studies who study community, civil society, and faith, but also practitioners and professionals, among them community leaders, journalists, those working with civic and religious organizations, and others seeking to understand the challenges facing American communities today. Unusual in social science, Diversity and the Common Good tells the story about a community that “works!” Finally, given the severe criticisms of American Sisters by the Vatican, the story of the great good done by Sisters must be told now.