This posting was originally a short speech given to students at the University of St. Thomas Law School on February 29.
We will all miss the unique and iconic personality of the late Justice Antonin Scalia. Few if any Supreme Court Justices have been gifted with such charm, humor, charisma and pizzazz. He was a man of great faith; a brilliant and memorable writer; a witty raconteur; a powerful and bracing intellect. He argued law, as he lived life, with passion and gusto. In his impact on the American public, he was in a class of his own: among the Justices of the past, perhaps only Oliver Wendell Holmes, Jr., Robert Jackson, and Thurgood Marshall can be compared to him. One might even say, with all due deference to Senator Cruz, that Justice Scalia was the living epitome of New York values.
But we are here to discuss his influence on the law, especially on constitutional law. And for all his great and varied gifts, his long tenure on the supreme bench, and the vigor and clarity of his opinions, his influence on constitutional law, at least judged from our current perspective, was very limited.
The two doctrines one associates most closely with Scalia’s jurisprudence are, of course, originalism and textualism. Others on this panel will no doubt discuss them, and I will say something about them a bit later. But what I want to consider briefly here is another important but neglected strand in his jurisprudence: his use of custom or tradition in constitutional adjudication. This aspect of his jurisprudence is, in my view, the most distinctively conservative element of it. There is no inherent connection between textualism or originalism and conservatism, but there is such a connection between custom and conservatism.
Nineteenth century legal conservatives such as James Coolidge Carter went so far as to identify law with custom. Or more accurately, they identified the common law with custom. One could say, in that spirit, that the common law identifies, articulates, stabilizes, and occasionally revises and improves, custom. And much of American Read more
within the conventional and simplistic narrative of personal reinvention and divine grace. Instead, the author places conversions within a secular social context that has, at various times, included the force of a unified church and state, desire for upward economic mobility, and interreligious marriage—the latter as critical in the early Christian era as in the United States today, where half of Americans have switched faiths at least once in their adult lives. The sometimes tragic, sometimes inspiring story is shaped by the competing absolute truth claims of Catholicism, Protestantism, and Islam and their impact on Jews—the only monotheistic believers with an older historical stake. Moving through time, continents, and cultures—dealing with the often-ignored forced conversion of American slaves to Christianity as well as with the better-known story of the Spanish Inquisition and the persecution of both atheists and Christians in modern Islamic theocracies—the story also includes conversions to authoritarian secular ideologies, notably Stalinist Communism, that resemble traditional, unquestioning faith. Finally, the author examines true religious choice—a product of the Enlightenment pioneered by the U.S. Constitution. This history is punctuated by portraits of individual converts, including the Catholic Church father Augustine of Hippo; the German Jewish convert to Catholicism Edith Stein, murdered at Auschwitz and canonized by the church; boxing champion Muhammad Ali, who scandalized white Americans in the 1960s by becoming a Muslim, and even politicians such as George W. Bush and former British prime minister Tony Blair. In a forthright conclusion to this enthralling history, Strange Gods takes on the question of why the freedom to choose a religion—or to reject religion altogether—is a fundamental human rights issue that remains a breeding ground for violence in areas of the world that never experienced an Enlightenment.
resistance to democracy. Madawi Al-Rasheed challenges this stereotype as she examines a long tradition of engaging with modernism that gathered momentum with the Arab uprisings and incurred the wrath of both the regime and its Wahhabi supporters. With this nascent modernism, constructions of new divine politics, anchored in a rigorous reinterpretation of foundational Islamic texts and civil society activism are emerging in a context where authoritarian rule prefers its advocates to remain muted. The author challenges scholarly wisdom on Islamism in general and blurs the boundaries between secular and religious politics.