On “Social Crusading”

On Thursday, I’m delighted to be participating with Professor Bob Nagel, on a panel, moderated by Prof. Matt Franck, on Professor Keith Whittington’s new book, Repugnant Laws: Judicial Review of Acts of Congress From the Founding to the Present (2019). The event gives me a chance to return to see my old friends at the James Madison Program at Princeton University, where I spent a delightful and productive spring as a visiting fellow.

The book provides detailed empirical support for the proposition that the Supreme Court, far more often than not (at a rate of about 3:1), upholds congressional statutes than it strikes them down. Whittington extends, but also modifies and enriches, the thesis proposed by Robert Dahl, Mark Graber, and Barry Friedman, among others, that the Court is fundamentally a political institution that very often operates in accord with the other political branches. The counter-majoritarian difficulty famously discussed by Alexander Bickel, in Whittington’s hands (and as one of my exceptional students, Joe Brandt, put it in our Constitutional Theory seminar this fall), becomes a majoritarian difficulty.

I’ll have more to say about the book later, but for the moment I want to call a little attention to a small, but interesting, line in the book discussing Reynolds v. United States (1878), where the Supreme Court upheld the federal Morrill Anti-Bigamy Act against a constitutional challenge by the LDS community on the ground that the Act violated its religious freedom. Polygamy was church practice at the time. Whittington counts this as an example right in line with his general thesis, and I think he is right about that.

But he describes the case in these terms:

“As Congress embarked on new social crusades, the Court stood aside. The Republican Party denounced the polygamy practiced by the Mormons in the West as equally barbaric as the slavery practiced by the slavocracy in the South. When the postbellum Congress turned its attention to bringing the Church of Jesus Christ of Latter-day Saints to heel, the Court gave it a free hand.” (170)

It may be a small point, but to describe the Congress as “embark[ing] on new social crusades” by enacting this legislation seems to me not quite right. If anyone was embarking on new social crusades, it was the religious organization, not Congress. I mean that entirely descriptively. Laws against bigamy and polygamy were nothing new in the late 19th century. Indeed, I should think that they would have been regarded as perfectly ordinary and unremarkable, and that is exactly how the Supreme Court regarded them in Reynolds: “At common law, the second marriage was always void (2 Kent, Com. 79), and from the earliest history of England, polygamy has been treated as an offence against society.” Enforcing long-standing social understandings by law against novel social arrangements is not social crusading. Quite the opposite.

But perhaps this difference of perspective illustrates a broader point about these sorts of descriptions. What we characterize as “social” or “moral” “crusading” (somehow, crusading has taken on unequivocally negative connotations…tant pis) will depend upon a baseline of what we value in existing social conditions and what we deem ordinary legislation to protect those conditions. “Moral” or “social crusading,” then, doesn’t seem to have much meaning beyond something like, “pursuing moral or social objectives I think illegitimate.” If that’s what it means, maybe we should just argue about those first-order disagreements directly (“which morality is best?”), rather than present those disagreements in second-order dismissals (“stop imposing your morality on me!”).

Highlights from The King’s College

The King’s College has posted a video of excerpts from my Constitution Day Address last month, on how cultural trends, including the rise of the Nones, will likely affect the legal debate on religious accommodations. Here’s the link:

Movsesian at the Morningside Institute Tomorrow

For readers in the area, tomorrow night I’ll appear in midtown Manhattan on a panel sponsored by the Morningside Institute, “Church-State Relations in a Time of Scandal.” I’ll be discussing recent state attempts to require clergy to report suspected cases of child abuse, including cases clergy learn about through confidential spiritual counseling, and what these attempts suggest about our changing religious landscape. Details at the link. Stop by and say hello!

“First Amendment Traditionalism”

That’s this new paper, which I’ve just posted, and accompanies this earlier paper discussing the nature of traditionalist interpretation. Here’s the abstract of the newer piece (comments welcome):

“Traditionalist constitutional interpretation takes political and cultural practices of long age and duration as constituting the presumptive meaning of the text. This essay probes traditionalism’s conceptual and normative foundations. It focuses on the Supreme Court’s traditionalist interpretation of the First Amendment to understand the distinctive justifications for traditionalism and the relationship between traditionalism and originalism. The first part of the essay identifies and describes traditionalism in some of the Court’s Speech and Religion Clause jurisprudence, highlighting its salience in the Court’s recent Establishment Clause doctrine.

Part II develops two justifications for traditionalism: “interpretive” and “democratic-populist.” The interpretive justification is that enduring practices presumptively inform the meaning of the words that they instantiate. Generally speaking, we do what we mean, and we mean what we do. The democratic-populist justification is that in a democracy, people who engage in practices consistently and over many years in the belief that those practices are constitutional have endowed them practices with political legitimacy. Courts owe the people’s enduring practices substantial deference as presumptively constitutional. The populist element in this justification is that traditionalism is a defensive interpretive method against what abstract principle in the hands of elite actors has wrought: intolerance, the corrosion of lived experience, and the distortion of text to mirror a particular class of contemporary moral and political views.

In Part III, this essay compares traditionalism with originalism, reaching two conclusions. First, traditionalism’s reliance on practices as presumptively constitutive of constitutional meaning is most distant from originalist theories that rely on abstract principle as constituting the meaning of text and that reject practice-based evidence as the equivalent of irrelevant “expected applications.” It is closest to varieties of originalism that read text concretely. Yet traditionalist judges are not engaged in making guesses about “expected applications,” but in making decisions about retrospective applications—drawing on old and enduring practices either to include within, or exclude from, a tradition the specific practice under review. Second, the essay investigates the connection between so-called “original law” theories of originalism and traditionalism. Original law theorists argue that originalism is “our law” as a sociological and cultural fact. But traditionalism may be more “our law” than originalism in some areas within the First Amendment and outside it. If the positivist defense of originalism truly counts as a justification for any theory of constitutional interpretation (an issue on which this essay takes no position), then it may support traditionalism as much as originalism.”

Movsesian at The King’s College

While Marc went north to Skidmore, I traveled to lower Manhattan today, to deliver the annual Constitution Day Address at The King’s College. Excellent questions from the students. Thanks for having me!

Lecture at Skidmore College on “The Supreme Court’s New Traditionalism”

I am up in lovely and bucolic Saratoga Springs at Skidmore College to deliver a lecture on “The Supreme Court’s New Traditionalism.” The talk lays out some general views on constitutional theory and then discusses an approach to constitutional interpretation that I have been developing in this paper and another paper forthcoming in short order.

Center Hosts Conversation on Church and State at SCOTUS

L-R: Marc DeGirolami, Kyle Duncan, Richard Sullivan, Mark Movsesian

Last week, the Center hosted a conversation on church-and-state issues before the US Supreme Court with federal appeals court judges Kyle Duncan (5th Circuit) and Richard Sullivan (2nd Circuit). The two newly-appointed judges discussed legislative prayer; public religious displays; the conflict between anti-discrimination laws and religious freedom; and state aid to religious schools. Here’s a write-up of the event from the Law School webpage.

Movsesian at The King’s College Next Month

Next month, I’ll give the annual Constitution Day Address at The King’s College in New York, on Masterpiece Cakeshop and the future of religious freedom in the United States. Details about the event, to take place on September 19, are here. Forum readers in New York, please stop by to say hello!

Movsesian on Wilken on Religious Freedom

In this week’s University Bookman, I have a review of Robert Louis Wilken’s new book on Christianity and religious freedom, Liberty in the Things of God. Here’s a sample:

Wilken writes lucidly and persuasively, and his basic point is correct. Religious freedom is not a concept foreign to Christian thought, and its place as a pillar of Western civilization owes much to Christian sources. Of course, one should not exaggerate. It’s fair to say that religious freedom, as it developed in the West, is one Christian approach to the question, but not the onlyChristian approach. As the examples of Augustine, Aquinas, and Calvin show, there are strains in the Christian tradition that would oppose religious freedom, at least as we understand the concept today. The dualist nature of Christian politics, which insists that Christians owe duties simultaneously to God and to the state, but that Christ is Lord of all, makes easy conclusions about the Christian approach to church-state relations impossible.

The full review is available here.

At the Hertog Foundation today

I’m delighted to be a guest today at the Hertog Foundation in Washington, DC, where I’m speaking at a class for college students and graduates taught by Adam White on “The Constitution, the Courts, and Conservatism.” Professor Randy Barnett, Judge Neomi Rao, and Ilya Shapiro of the Cato Institute are among the other speakers. I’ll be speaking about some of my work on traditionalism in constitutional interpretation.

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