Rappaport on Common Law Constitutionalism

Professor Michael Rappaport has a really neat post about common law rights that are constitutionalized, and how one should interpret such rights. The post is particularly interesting for me because in my constitutional theory seminar, we are in between two classes that consider, respectively, the role of tradition and historical practice in constitutional interpretation, and the relationship between precedent and interpretive theory. But as Professor James Stoner has shown, there are many textual features of the Constitution that use terms rooted in common law understandings. What are the interpretive possibilities in such cases; what happens to a common law right that has been constitutionalized? Rappaport sets out 3 options:

1. Static: When the common law right is constitutionalized, it becomes fully frozen, as if it were written law. To determine the meaning of the right, one looks to the common law in 1789. The existing decisions regarding the common law constitute the full meaning of the right.

2. Dynamic: Although the common law right was written into the Constitution, it did not change its character. Instead, it remains as flexible as a common law right. Under this interpretation, one might see something like the living constitution view in the Constitution.

3. Intermediate: When the common law right was constitutionalized, it changed its character, but it did not become fully frozen as if it were written law. Under this view, one treats the right as a common law right as of the time it was enacted, but does not give it a dynamic effect with changing circumstances.

It is not surprising that Professor Rappaport ends up opting for choice #3, because this choice maps neatly on his general interpretive defense (with Professor John McGinnis) of original methods originalism! See the post for his reasons. What is of special interest to me is the extent to which the Constitution depends upon common law terminology and common law ideas. For this, you really can’t do better than Professor Stoner’s work. But I suspect there is much more to be done in that area. In fact, sometimes I wonder whether anybody has ever reviewed the English experience with the term “establishment of religion” in the centuries before the Constitution’s drafting (surely someone has).

Conference at Catholic University: “The Relationship between Religious and Economic Liberty”

On November 10, 2014, the Acton Institute for the Study of Religion and Liberty will hold a day-long conference entitled “The Relationship between Religious & Economic Liberty in an Age of Expanding Government.” The conference is hosted by the Catholic University of America.

Throughout Western developed nations, there is dawning recognition that robust protections for religious liberty can no longer be taken for granted. Less understood are the ways in which infringements of other political, civil and commercial forms of freedom can subtly undermine religious liberty: but also vice-versa. Businesses and other institutions of civil society now need to consider how the restrictions of religious freedom by governments throughout the Western world is likely to affect them. What then is the relationship of religious liberty to other expressions of freedom?

Details can be found here.

Smith, “The First Great Awakening”

This December, Rowman & Littlefield Publishers will release “The First Great Awakening: Redefining Religion in British America, 1725-1775” by John Howard Smith (Texas A&M University).  The publisher’s description follows:

The First Great Awakening, an unprecedented surge in Protestant Christian revivalism in the Eighteenth Century, sparked enormous of controversy at the time and has been a source of scholarly debate ever since. Few historians have sought to write a synthetic history of the First Great Awakening, and in recent decades it has been challenged as having happened at all, being either an exaggeration or an “invention.” The First Great Awakening expands the movement’s geographical, theological, and sociopolitical scope. Rather than focus exclusively on the clerical elites, as earlier studies have done, it deals with them alongside ordinary people, and includes the experiences of women, African Americans, and Indians as the observers and participants they were. It challenges prevailing scholarly opinion concerning what the revivals were and what they meant to the formation of American religious identity and culture.

Özyürek, “Being German, Becoming Muslim”

This December, Princeton University Press will release “Being German, Becoming Muslim: Race, Religion, and Conversion in the New Europe” by Esra Özyürek (London School of Economics).  The publisher’s description follows:

Being German Becoming MuslimEvery year more and more Europeans, including Germans, are embracing Islam. It is estimated that there are now up to one hundred thousand German converts—a number similar to that in France and the United Kingdom. What stands out about recent conversions is that they take place at a time when Islam is increasingly seen as contrary to European values. Being German, Becoming Muslim explores how Germans come to Islam within this antagonistic climate, how they manage to balance their love for Islam with their society’s fear of it, how they relate to immigrant Muslims, and how they shape debates about race, religion, and belonging in today’s Europe.

Esra Özyürek looks at how mainstream society marginalizes converts and questions their national loyalties. In turn, converts try to disassociate themselves from migrants of Muslim-majority countries and promote a denationalized Islam untainted by Turkish or Arab traditions. Some German Muslims believe that once cleansed of these accretions, the Islam that surfaces fits in well with German values and lifestyle. Others even argue that being a German Muslim is wholly compatible with the older values of the German Enlightenment.

Being German, Becoming Muslim provides a fresh window into the connections and tensions stemming from a growing religious phenomenon in Germany and beyond.