The New Thoreaus: A Video of My Talk at UT Law

I had a wonderful time yesterday at the Bech-Loughlin First Amendment Center at the University of Texas Law School, where I spoke about my draft paper on the New Thoreaus. I enjoyed meeting some students before my talk, and the talk itself. Excellent questions and a lot of fun. My thanks again to Steve Collis and the folks at UT for having me. A video of the talk is available below:

Movsesian in Texas This Week

I’m looking forward to traveling to the University of Texas this week, where I’ll present my draft paper, “The New Thoreaus,” at the Bech-Loughlin First Amendment Center. The paper addresses the Rise of the Nones and what it means for the Free Exercise Clause. Details are available here. Center friends, stop by and say hello!

Podcast on the Situation in Armenia

Last Friday, I sat down (virtually) with Geoff Shullenberger to record an episode of “Compact Conversations,” Compact Magazine’s podcast series. Geoff and I discussed my recent essay in Compact on Azerbaijan’s invasion of Armenia–specifically, on how the West’s indifference to the invasion of this aspiring democracy by a dictatorship reflects a combination of hypocrisy, cynicism, and shortsightedness. Here’s the link. Listen in!

Why Armenia Stands Alone

Last week, an aspiring democracy–Armenia–was invaded by an authoritarian neighbor–Azerbaijan. The invasion threatens to reduce Armenia by half and start a new round of ethnic cleansing in the South Caucasus. And yet the West, so eager to defend Ukraine, has mostly turned a blind eye. The reason, I argue today in Compact, lies in a combination of hypocrisy, cynicism, and shortsightedness. Here’s an excerpt:

Yet the initial Western reaction to Azerbaijan’s aggression has been tepid, limited mostly to expressions of concern and calls for calm on both sides. American neoconservatives have generally been disgraceful, mocking Armenian losses and rooting for the Azeri dictatorship, mainly because they see Baku as a useful speartip against Iran and Russia. The Christian right in America, which one might think would feel affinity with the world’s first Christian nation, has remained silent.

Indifference doesn’t quite capture the Western posture. On the contrary, the West has been courting Azerbaijan in recent years, inking new gas deals and supplying millions of dollars in military assistance annually.

The contrast with the Ukraine crisis, another conflict in which an authoritarian state has attacked an aspiring democracy, is jarring. President Biden has described that war as part of an existential struggle “between democracy and autocracy, between liberty and repression”—a grandiose framing shared by the hawkish usual suspects on the American right. The United States alone has committed a staggering $50 billion to Kiev since the Russian invasion, in the name of democracy, self-determination, and international borders. Blue-and-yellow flags fly everywhere. So why ignore Armenia?

The answer lies in a combination of hypocrisy, cynicism, and shortsightedness. The West’s indifference to Armenia reveals once more that its concerns for democracy are highly selective, operative only where the West sees its interests at stake. Here, the West has concluded that its interest lies in appeasing Azerbaijan, which can help supply gas to Europe and check Russia and Iran in the South Caucasus.

You can read the whole article here.

Movsesian to Appear at UT-Austin Later This Month

A programming note: later this month, I’ll present my paper, “The New Thoreaus,” at the Bech-Loughlin First Amendment Center at the University of Texas School of Law. The paper discusses the increase in the number of unaffiliated believers–people who reject organized religion and follow their own spiritual paths–and whether the Free Exercise Clause should apply to them. Details are here. Very much looking forward to this. Center friends in Austin, please stop by and say hello!

“Traditionalism Rising” at the Volokh Conspiracy This Week

At Eugene’s kind invitation, I’ll have several posts this week at the Volokh Conspiracy excerpting and summarizing my new article, Traditionalism Rising. The first post is here, defining traditionalism and locating it in the Court’s 2021 term cases. Here’s a bit:

The piece builds on and extends a larger project about constitutional traditionalism developed in earlier papers (here and here), as well as in a broader research program, The Tradition Project, that my colleague (and Volokh co-conspirator) Mark Movsesian and I have pursued over several years at our Center for Law and Religion. I’ve been a dedicated reader of the Volokh Conspiracy since I was a law prof pup, so it is a pleasure for me to contribute something.

My posts will: (1) define traditionalism and locate it in the Supreme Court’s work this past term; (2) compare traditionalism and originalism, particularly what the paper calls “liquidated originalism”; (3) address traditionalism’s “level of generality” problem, the problem how to select the operative tradition; (4) offer several justifications for traditionalism; (5) consider the problem of traditionalism’s politics. Most of the material is excerpted or summarized from the article, but I invite readers to look at the piece for the full-dress argument. I welcome reactions to the paper, which is still a draft.

What is traditionalism? When people hear the word tradition connected to law, they sometimes think of judicial restraint, or deference, or minimalism (or “Burkeanism”), or some vaguer injunction to “go slow” or respect stare decisis and the interests served by it. Or they may think of approaches to particular clauses or parts of the Constitution—to the Due Process Clause, for example, or to Justice Frankfurter’s “tradition” approach to inherent executive power.

Traditionalism is different from all of these. Traditionalism is a unified approach to determining constitutional meaning and constitutional law with two central elements: (1) concrete practices, rather than principles, ideas, judicial precedents, legal rules, and so on, as the determinants of constitutional meaning and law; and (2) the endurance of those practices as a composite of their age, longevity, and density, evidence for which includes the practice’s use before, during, and after enactment of a constitutional provision.

“Traditionalism Rising”

The title of my new draft paper, developing work I’ve been at for the last 3-4 years, incorporating some of the decisions from this term, and setting out some justifications for this method of doing constitutional law. Here is the abstract:

Constitutional traditionalism is rising. From due process to free speech, religious liberty, the right to keep and bear arms, and more, the Court made clear in its 2021 term that it will follow a method that is guided by “tradition.”

This paper is in part an exercise in naming: the Court’s 2021 body of work is, in fact, thoroughly traditionalist. It is therefore a propitious moment to explain just what traditionalism entails. After summarizing the basic features of traditionalism in some of my prior work and identifying them in the Court’s 2021 term decisions, this paper situates these recent examples of traditionalism within this larger, longstanding interpretive method. Contrary to many claims, there is little that is entirely new or unexpected, other than the Court’s more explicit embrace of traditionalism this term than in the past. The paper then distinguishes traditionalism from originalism, focusing especially on what some originalists have called “liquidation.” Finally, it raises and considers one comparatively straightforward and two more difficult problems for traditionalism: (a) the problem of selecting the operative “level of generality” for any tradition; (b) the problem of tradition’s moral justification, offering possibilities based on the connection between enduring practices and (1) human desires, (2) virtues or legal excellences, or (3) natural law determinations; and (c) the problem of traditionalism’s politics.

The New Thoreaus

I’ve just posted a new draft essay, “The New Thoreaus,” to SSRN. The essay, which will appear in a forthcoming symposium in the Loyola University Chicago Law Journal, discusses the Rise of the Nones and argues that community is crucial to defining religion for legal purposes. Abstract below. Comments welcome!

Fifty years ago, in Wisconsin v. Yoder, the Supreme Court famously indicated that “religion” denotes a communal rather than a purely individual phenomenon. An organized group like the Amish would qualify as religious, the Court wrote, but a solitary seeker like the 19th Century Transcendentalist, Henry David Thoreau, would not. At the time, the question was mostly peripheral; hardly any Americans claimed to have their own, personal religions that would make it difficult for them to comply with civil law. In the intervening decades, though, American religion has changed. One-fifth of us—roughly 66 million people—now claim, like Thoreau, to follow our own, idiosyncratic spiritual paths. The New Thoreaus already have begun to appear in the cases, including recent vaccine mandate challenges, and courts will increasingly face the question whether purely idiosyncratic beliefs and practices qualify as religious for legal purposes. In this essay, I argue that Yoder’s insight was basically correct: the existence of a religious community is a crucial factor in the definition of religion. Religion cannot mean an exclusively communal phenomenon; a categorical rule would slight a long American tradition of respecting individual religious conscience and create difficult line-drawing problems. Nonetheless, the farther one gets from a religious community, the more idiosyncratic one’s spiritual path, the less plausible it is to claim that one’s beliefs and practices are religious, for legal purposes.

A Writeup on This Month’s Conference in Rome

Here’s a writeup (with photos!) on our conference this month in Rome, co-hosted with LUMSA University, on liberalism, religious exemptions, and hate speech regulations. We’ll post papers from the conference in due course. Meanwhile, thanks to the participants: keynoters Cesare Mirabile and Chantal Delsol, and Professors Stephanie Barclay (Notre Dame); Paolo Cavana (LUMSA); Gayane Davidyan (Lomonosov); Richard Ekins (Oxford); Monica Lugato (LUMSA); Adelaide Madera (Messina); Javier Martínez-Torrón (Complutense); Marco Olivetti (LUMSA); Andrea Pin (Padua); Jeffrey Pojanowski (Notre Dame); Angelo Rinella (LUMSA); Steven Smith (San Diego); and Kevin Walsh (Catholic University of America).

Interview on Radio Vaticana on “Liberalism’s Limits: Religious Exemptions and Hate Speech”

Our conference, “Liberalism’s Limits: Religious Exemptions and Hate Speech,” which we co-sponsored with LUMSA last week in Rome, was a great success. We will publish some of the conference proceedings after giving the participants time to revise their contributions. In the meanwhile, here is an interesting interview conducted by Radio Vaticana with Professors Cesare Mirabelli (President Emeritus of Italy’s Constitutional Court and one of our keynote speakers) and our colleague, friend, and conference co-organizer, Professor Monica Lugato, about the conference and our broader projects.

The interview is in Italian, but I’m taking the liberty of translating loosely a portion of what Professor Lugato said to give our English-speaking readers a sense of the proceedings: “This conference was in a line of academic projects undertaken jointly by our universities dating from 2014 [and as early as 2012] with the idea of discussing some central and complex themes concerning the problem of living together–of how to live together in societies marked today by substantial pluralism. The objects of this general theme have been conferences concerning aspects of religious freedom as well as the legal and political implications of the concept of tradition. Within this general line of inquiry, it was natural to confront the problems of the limits of liberalism, and in particular liberalism’s tendency to render absolute certain individual liberties. Some of the questions asked at the conference might be grouped into two categories: on the one hand, questions about whether liberalism, at least in its classical sense, has exhausted itself; and on the other hand, questions about whether liberal political and legal systems demand certain limits on individual liberties just in order to survive as liberal systems, and what those limits might be.”