“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.

3 responses

  1. “At perhaps one click removed from law and religion proper…”. How do you define “law and religion proper”?

    This is an entirely serious question because it’s one we frequently wrestle with in making decisions about content for our own blog. In the end, I guess we decide on no better basis than instinct, prejudice and what we think might appeal to our readers, rather than on any firm definition of precisely what “law and religion” might cover.

    I’d be very interested in any views you or your readers might have.

    Best wishes

    Frank Cranmer

  2. Frank, good question. I guess I think of the field proper in terms of the three basic areas we study–American church state relations, comparative and international church state issues, and religious law (law within religious traditions). But there’s lots we like to talk about outside that core. And at least a few of the decisions I make about whether or not to post have to do with other research areas I’m interested in that have at least a tenuous connection: US constitutional history and interpretive theory, criminal law, Carducci’s terrible poetry, etc. How do you make these choices? Best, Marc

  3. Frank, I’ve always thought there is a creative ambiguity in the term as we use it around here. It could mean “law-and-religion,” that is, a compound noun in which the relationship between the two halves is very close, or it could be “law and religion,” in which the two topics are related rather more tangentially. On the first reading, it covers traditional church-and-state doctrines, comparative establishments, religious exercise in civil law, etc. On the second reading, it covers posts either on religion or on law, as long as there is some connection between the two: sociology of religion, history of religion, even theology, as they relate to legal concepts, for example. We do both around here, as the mood strikes us.

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