“It is by obeying the judgments of our predecessors that we are empowered to make judgments of our own.”

At perhaps one click removed from law and religion proper, but still deeply relevant, is Joel Alicea’s superb essay on originalism and “the rule of the dead” (from which I have drawn the title quote) in the latest issue of National Affairs. Alicea’s piece is particularly useful on the necessary connection of obedience to the will of the dead and the concept of written law (and the disconnection between the concept of written law and obedience to the will of the living). A bit more:

By obeying the dead, the living can demand obedience. As Judge Frank Easterbrook once remarked, “Decisions of yesterday’s legislatures…are enforced…because affirming the force of old laws is essential if sitting legislatures are to enjoy the power to make new ones.” That is, “[p]eople accept old contracts and old laws because they know that this is the only way to ensure that promises to them are kept.” We, the living, accept the binding force of laws passed before our time so that our laws will be obeyed, both in our own time and beyond.

This dynamic between the living and the dead not only undergirds written law; it is foundational to a proper conception of popular sovereignty under the Constitution. Indeed, it is at the heart of what Whittington has called the dualist conception of democratic theory. Under this framework, “the people” exist in their sovereign capacity only when they engage in higher lawmaking — the making and amending of the Constitution. This lawmaking is of a higher order, as it sets the rules by which all other laws can be made and sets the limits of what those laws can do. At all other times and for all other lawmaking, ordinary politics is the norm, and in such circumstances, the people do not act as the sovereign — though they retain the power to reassert their sovereignty at any moment through the process of constitutional amendment. This is not to deny, of course, that the people remain the ultimate source of authority in a polity during a time of ordinary politics; it is simply to say that they and their representatives are acting under or subordinate to the rules that the people established in their sovereign capacity.

This conception of popular sovereignty stems from the same kinds of considerations that uphold written law. In the same way that the dead-hand argument is hostile to any form of written law, saying that the people act in their sovereign capacity in everyday politics is hostile to a written constitution. A constitution is meant to guide and limit ordinary politics, and if ordinary politics were the domain of the people acting as sovereign, then every statute would be the equivalent of a constitutional amendment, and the idea of a written constitution would become meaningless.

….

These philosophical assumptions underlying written law are the essence of originalism. We must submit to the commands of the dead in order to govern ourselves, and in order to submit, we must understand those commands according to their original meaning. It would be farcical to claim that we are being obedient to a rule if we arrogated to ourselves the power to change the meaning of that rule. It would be tantamount to telling past generations: “We will obey your laws — so long as they mean what we say they mean.” The rejection of the dead-hand argument is therefore not just about defending the validity of written law in general; it is about defending originalism’s core philosophical assumptions.

Similarly, we see that the argument over the dead-hand of the past is about far more than the viability of originalism. At stake is the idea of written law, of popular sovereignty, and of society as an intergenerational partnership between the living and the dead.

Hon. Kenneth Starr to Lecture at Touro on “The First Freedom: Religious Liberty in America”

The Hon. Kenneth Starr, President and Chancellor of Baylor University, will deliver a public lecture titled “The First Freedom: Religious Liberty in America” at Touro Law on Thursday, March 26, 2015 at 6:00 p.m. in the auditorium. The event is free and open to the public.

This event will be live streamed on March 26th at 6 p.m. Watch it here.

For more information, please contact: events@tourolaw.edu.

“Religious Literacy in Policy and Practice” (Dinham & Francis, eds.)

This month, Policy Press at the University of Bristol released “Religious Literacy in Policy and Practice” edited by Adam Dinham (University of London) and Matthew Francis (Lancaster University). The publisher’s description follows:

It has long been assumed that religion is in decline in the West: however it continues to have an important yet contested role in individual lives and in society at large. Furthermore half a century or so in which religion and belief were barely talked about in public has resulted in a pressing lack of religious literacy, leaving many ill-equipped to engage with religion and belief when they encounter them in daily life – in relationships, law, media, the professions, business and politics, among others. This valuable book is the first to bring together theory and policy with analysis and expertise on practices in key areas of the public realm to explore what religious literacy is, why it is needed and what might be done about it. It makes the case for a public realm which is well equipped to engage with the plurality and pervasiveness of religion and belief, whatever the individual’s own stance. It is aimed at academics, policy-makers and practitioners interested in the policy and practice implications of the continuing presence of religion and belief in the public sphere.

“The Transformation of Politicised Religion: From Zealots into Leaders” (Elsenhans et al., eds.)

Last month, Ashgate Publishing released “The Transformation of Politicised Religion: From Zealots into Leaders” edited by Harmut Elsenhans (University of Leipzig, Germany), Rachid Ouaissa (Philipps-Universität Marburg, Germany), Sebastian Schwecke (University of Göttingen, Germany), and Mary Ann Tétreault (Trinity University, USA). The publisher’s description follows:

Including contributions from leading scholars from Algeria, France, Germany, India and the United States this book traces the rise and turn to moderation of the New Cultural Identitarian Political Movements, often labelled in the West as fundamentalists. Arguing that culturally based ideologies are often the instruments, rather than the motivating force though which segments of a rising middle strata challenge entrenched elites the expert contributors trace the rise of these movements to changes in their respective countries’ political economy and class structures. This approach explains why, as a result of an ongoing contestation and recreation of bourgeois values, the more powerful of these movements then tend towards moderation. As Western countries realise the need to engage with the more moderate wings of fundamentalist political groups their rationale and aims become of increasing importance and so academics, decision-makers and business people interested in South Asia and the Muslim world will find this an invaluable account.