Legal Spirits Episode 044: Traditionalism Rising

In this episode, Mark interviews Marc about his new article, “Traditionalism Rising,” on an important, emerging method of constitutional interpretation embraced by the Supreme Court across the domains of constitutional law, including in law and religion, and especially so in the most recent term. Marc explains some of the basics of the method, which emphasizes the endurance of political and cultural practices over time as presumptive determinants of constitutional meaning. The two discuss some of the reasons to adopt this approach to understanding the Constitution and several objections that might be made to it, considering a few responses. Constitutional law and interpretation is, and has always been, fraught with political controversy, and Marc and Mark think through some of the political valences of traditionalism to conclude the discussion. Listen in!

Around the Web

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

  • In DeMarco v. Bynum, the Fifth Circuit upheld the dismissal of a suit brought by an inmate who contended that the confiscation of his religious materials violated his First Amendment rights. In part, the court reasoned that there were alternative ways for DeMarco to exercise his First Amendment rights and that even if Bynum had violated DeMarco’s constitutional rights, the district court correctly found that Bynum was entitled to qualified immunity. 
  • The Fifth Circuit heard oral arguments in Spell v. Edwards. In the case, a Louisiana federal district court dismissed a challenge to a now-expired COVID Order limiting the size of religious gatherings. The district court dismissed the case because the challenged restrictions had already expired, and the defendants had qualified immunity in the claim for damages. 
  • In Hile v. State of Michigan, a Michigan federal district court dismissed free exercise and equal protection challenges to a provision in the Michigan Constitution that prohibits the use of state funds, tax benefits, or vouchers to aid “any private, denominational or other nonpublic, pre-elementary, elementary, or second school” or student attendance at such schools. The court also rejected the plaintiffs’ equal protection challenge. 
  • In Fitzgerald v. Roncalli High School, Inc., an Indiana federal district court invoked the ministerial exception doctrine to dismiss a suit brought by Michelle Fitzgerald, a Catholic high school guidance counselor who was fired after the school and the church that oversaw it learned that she was in a same-sex marriage. 
  • In Dollar v. Goleta Water District, a California federal district court held that the COVID vaccination policy for employees of the Goleta Water District did not discriminate on the basis of religion against employees who obtained a religious exemption. Plaintiffs contend that the District’s policy is discriminatory because it imposes special mask and testing requirements and requires authorization to enter certain buildings for plaintiffs because they have a religious exemption.
  • In State of Texas v. EEOC, a Texas federal district court held that Guidance documents issued by the EEOC and by the Department of Health and Human Services are unlawful. At issue are the HHS and EEOC applications of the Supreme Court’s Bostock decisionBostock held that sex discrimination in Title VII includes discrimination because of sexual orientation or gender identity.

An Intellectual History of Modern Legal Conservatism

The historian Johnathan O’Neill is the author of one of the best treatments of the history of originalism in law and politics in the 20th century. Here he is with a new, somewhat broader book on similar themes that looks more like an intellectual history and well worth picking up: Conservative Thought and American Constitutionalism Since the New Deal (Johns Hopkins Press).

The New Deal fundamentally changed the institutions of American constitutional government and, in turn, the relationship of Americans to their government. Johnathan O’Neill’s Conservative Thought and American Constitutionalism since the New Deal examines how various types of conservative thinkers responded to this significant turning point in the second half of the twentieth century.

O’Neill identifies four fundamental transformations engendered by the New Deal: the rise of the administrative state, the erosion of federalism, the ascendance of the modern presidency, and the development of modern judicial review. He then considers how various schools of conservative thought (traditionalists, neoconservatives, libertarians, Straussians) responded to these major changes in American politics and culture. Conservatives frequently argued among themselves, and their responses to the New Deal ranged from adaptation to condemnation to political mobilization.

Ultimately, the New Deal pulled American governance and society permanently leftward. Although some of the New Deal’s liberal gains have been eroded, a true conservative counterrevolution was never, O’Neill argues, a realistic possibility. He concludes with a plea for conservative thinkers to seriously reconsider the role of Congress—a body that is relatively ignored by conservative intellectuals in favor of the courts and the presidency—in America’s constitutional order. Conservative Thought and American Constitutionalism since the New Deal explores the scope and significance of conservative constitutional analysis amid the broader field of American political thought.