I was delighted to participate last week in this conference on “Constitutions, Peoples, and Sovereignty,” organized by Professor Jeff Pojanowski and co-sponsored by Notre Dame’s Program on Constitutional Structure and the Oxford Programme for the Foundations of Law and Constitutional Government. The conference was a day of discussion about a series of papers, one of which was my First Amendment Traditionalism.
This volume is now available for purchase, with many worthwhile and interesting contributions. I have an essay in here as well, The Two Separations.
Check it out!
Over at Public Discourse today, I have an essay that attempts to predict the outcome in Espinoza v. Montana Dep’t of Revenue, the Blaine Amendment case currently under review at SCOTUS. (Marc and I will have a new podcast about the case up shortly). Here’s a summary of the essay:
The US Supreme Court seems likely to rule in a way school-choice advocates will welcome. The Court will likely overrule the Montana court and hold a ban on scholarships for students at religiously affiliated schools unconstitutional—an important ruling, to be sure. But a sweeping opinion seems unlikely. Rather, Espinoza is shaping up to be one of those closely divided, narrow decisions that have become familiar in the Court’s Religion Clause jurisprudence.
Predicting the outcome of a case on the basis of oral argument is tricky, but I’m foolhardy enough to try. Let’s see how I do.
On February 14, the Center will co-host, along with the Journal of Catholic Legal Studies, a conference on a forthcoming book by Professors John Breen (Loyala University Chicago) and Lee Strang (University of Toledo), “A Light Unseen: A History of Catholic Legal Education.” Panelists include Deans Kathleen Boozang (Seton Hall), Marcus Cole (Notre Dame), Vincent Rougeau (Boston College), Michael Simons (St. John’s), William Treanor (Georgetown), and Robert Vischer (St. Thomas), and Professors Angela Carmella (Seton Hall), Teresa Collett (St. Thomas), Richard Garnett (Notre Dame), Jeff Pojanowski (Notre Dame), and Amy Uelmen (Georgetown). Details and registration are at this link. Hope you can join us!
I’m at Washington University in St. Louis today for a conference put together by Professor John Inazu on “The Religion Clauses.” I’ll be talking about my recent piece, First Amendment Traditionalism, which extends the arguments about traditionalism in constitutional interpretation that I first made in The Traditions of American Constitutional Law. If you happen to be in the area, please do come by and say hello, as the conference is free and open to the public.
At the Liberty Law blog this morning, I have an essay on historian Charles Laderman’s fine new book, Sharing the Burden: The Armenian Question, Humanitarian Intervention, and Anglo-American Visions of Global Order. At the turn of the 20th Century, American officials repeatedly voiced support for an independent Armenian state in Anatolia. The state was meant to compensate Armenians for the effects of genocide and offer them protection from hostile forces that surrounded them. Laderman explores why, notwithstanding the best intentions, the US Government ultimately abandoned Armenians and other persecuted Mideast Christians at the end of World War I. In my review, I explain what this history suggests for Mideast Christians today:
Congressional resolutions are very welcome, but history suggests that these Christians should not expect much more from America. Just as in the last century, despite the best intentions, America’s commitment to Christians in the Middle East today is limited: well wishes, exhortations for equality and tolerance, some humanitarian assistance—though nothing like the massive humanitarian campaign that took place in the last century and saved so many lives. Ultimately, nations act in their political and economic interests, and America does not perceive long-term interests that would justify putting at risk the large number of troops necessary to defend Mideast Christians on an ongoing basis. Many private citizens and charities continue to help Mideast Christians, thank God. But the sad lesson of Laderman’s book is this: if Christians in Syria expect the American government to do more to help them, they will find themselves on their own.
The full essay is available here.
Marc and I are delighted to announce that our two graduating student fellows, Anthony Nania ’20 and Dan Vitagliano ’20, have earned wonderful judicial clerkships for after graduation. Anthony will clerk for Chief Judge Fiore of the New York Court of Appeals from 2020-2022 and Dan will clerk for Judge Vyskocil on the Southern District of New York from 2020-2021 and then for Judge Duncan on the Fifth Circuit from 2021-2022. Congrats, guys! Full story here.
Here is a retrospective list of some of our papers and activities in 2019, with links where available. A warm thanks to our readers, and best wishes for the new year!
DeGirolami, The Traditions of American Constitutional Law (forthcoming, Notre Dame Law Review 2020).
Movsesian, Masterpiece Cakeshop and the Future of Religious Freedom, 42 Harv. J.L. & Pub. Pol’y 711 (2019).
DeGirolami, First Amendment Traditionalism (forthcoming, Wash. U. L. Rev. 2020).
Movsesian, The Armenian Genocide Today, First Things, November.
DeGirolami, The Sickness Unto Death of the First Amendment, 31 Harv. J.L. & Pub. Pol’y 751 (2019).
Movsesian, Tertullian and the Rise of Religious Freedom, University Bookman, August.
DeGirolami, Notes on a New Fusion, Liberty Fund, July.
Movsesian, Interpreting the Bladensburg Cross Case, First Things, June.
DeGirolami, Cross Purposes, Public Discourse, June.
Movsesian, The Devout and the Nones, First Things, April.
DeGirolami, Jurisprudence as an Expression of Character, Liberty Fund, January.
Conversation with Hon. Kyle Duncan (5th Circuit) and Hon. Richard Sullivan (2d Circuit) on church-state issues at the Supreme Court.
Legal Spirits (podcast series concerning law and religion).
In spring 2019, DeGirolami was a fellow in the James Madison Program in Princeton University’s Department of Politics.
DeGirolami, Panel on Keith Whittington’s “Repugnant Laws,” James Madison Program, Princeton University, November.
Movsesian, “Church-State Relations in a Time of Scandal,” Morningside Institute, September.
Movsesian, Constitution Day Lecture, The King’s College, September.
DeGirolami, “The Supreme Court’s New Traditionalism,” Skidmore College, September.
DeGirolami, “The Constitution, the Courts, and Conservatism,” Hertog Foundation, July.
The Center for Law and Religion colonizes the Harvard Journal of Law and Public Policy! June.
Movsesian, “Religion and the Administrative State,” Center for the Study of the Administrative State, George Mason University, March.
DeGirolami, “Free Exercise of Religion and Free Speech,” AALS Law and Religion Conference, January.
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!”).
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: