Legal Fictions and Our Constitutional Republic

At the Law & Liberty site today, I have an essay on Steve Smith’s fine new book, Fictions, Lies, and the Authority of Law. I use the essay to address one of Steve’s central claims–our constitutional order is based on a fictional consent that has served us well over time. Can this fiction continue to bind together our increasingly fractured society? Here’s an excerpt from my essay:

Can these two conditions, “plausibility and payoff,” continue to hold? In a prologue, Smith notes that he largely finished this book in the fall of 2019 and could not consider all that has transpired in our country since then. Nonetheless, he doesn’t seem very hopeful, and it’s easy to see why. The events of the past two years suggest that America is coming apart in ways that make the beneficial fiction he describes increasingly hard to maintain. Increasing numbers of Americans no longer identify instinctively with the “We the People” in whose name the Constitution and laws bind us. Indeed, the National Archives now includes a trigger warning on its website for people accessing the Constitution, alerting readers to the “potentially harmful language” they will encounter in the document. As Smith writes, people who see themselves “as systematically oppressed or discriminated against  . . . have little incentive to overlook the fictional quality of the ‘consent’ on which government’s assertion of authority depends.” And our officials seem increasingly dysfunctional—petty, gridlocked, and feckless, unable to end their squabbling long enough to handle a nationwide public-health emergency or withdraw from a military campaign in an ordered, dignified way.

You can read the whole essay here.

Around the Web

Here are some important law-and-religion news stories from around the web:

  • In Dahl v. Board of Trustees of Western Michigan University, the Sixth Circuit upheld an injunction barring Western Michigan University from enforcing its COVID-19 vaccine mandate against 16 Christian student-athletes who had applied for religious exemptions.
  • In Niblett v. Universal Protection Service, a California federal district court dismissed a damage action by a Muslim woman who was forced by a security guard to remove her hijab to enter a Public Social Services building.
  • In Dr. T. v. Alexander-Scott, a Rhode Island federal district court rejected a request to prevent enforcement of a Rhode Island Department of Health Emergency Regulation that requires all healthcare workers to receive the COVID-19 vaccine. Plaintiffs challenge the regulation’s lack of religious exemptions.
  • In Schrenger v. Shields, a Kentucky police officer filed suit in federal district court seeking damages after the Department suspended him for praying outside an abortion clinic while in uniform, but prior to the start of his shift.
  • In United States v. State of Texas, a Texas federal district court preliminarily enjoined enforcement of Texas’ “heartbeat” abortion ban stating that a person’s right under the Constitution to choose to obtain an abortion prior to fetal viability is well established.
  • A group of St. John’s University students is suing the University over its vaccine mandate, claiming that the requirement violates their sincerely held religious beliefs.
  • Office of Personnel Management issued guidance to federal agencies for how to handle federal employees who are seeking a religious exemption from the COVID-19 vaccine mandate. The guidance states that the employee “must first establish that [their] refusal to be vaccinated is based upon a sincere belief that is religious in nature.”