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Farewell to St. John’s and the Mattone Center for Law and Religion

After nearly 15 years, I am leaving St. John’s Law School and the Mattone Center for Law and Religion. My professional life has been spent very happily here, in equable and productive study and teaching with my excellent, learned friend and colleague, Mark Movsesian. I have been proud of our Center’s work–from its large undertakings, such as our Tradition Project, to its smaller labors in our occasional seminars, podcasts, and our Reading Society (of which I have grown particularly fond). It has been an honor and delight for me to be a part of all of it.

Permit me to thank all of the participants and supporters that have made the work of our Center such a great joy for me over the years. In an era of turmoil for American higher education, the Center will live on in my memory as an example, and a beacon, of what true liberal learning in the law, at its finest, can be. For my cherished St. John’s students and, in teaching them, for me. MOD

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“Establishment as Tradition” in the Yale Law Journal Forum

My essay, Establishment as Tradition, has just come out in the Yale Law Journal Forum, together with very worthwhile pieces by Professor Michael Stokes Paulsen and Professor Stephanie Barclay. These are together collected under the title, “The Religion Clauses Post-Kennedy.”

My piece is another sketch in an ongoing series of illustrations of traditionalism as an independent constitutional theory, addressing specific issues about its relationship to religion and establishment. Delighted to see traditionalism come to the YLJ.

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My Remarks on Prof. Robert George’s “Making Men Moral” at 30 Years

I was delighted and honored to participate in a two-day conference marking the 30th anniversary of Professor Robert George’s deeply important book, Making Men Moral: Civil Liberties and Public Morality, organized by the Project on Constitutional Originalism and the Catholic Intellectual Tradition at The Catholic University of America, Columbus School of Law, Pepperdine University’s School of Public Policy, and the American Enterprise Institute.

I was joined by my friends, Professors Joel Alicea and Steven Smith, with Judge Thomas Griffith moderating, on the final panel concerning constitutional theory. The recording, which I’ve posted below, begins at 6:49:29 and my own presentation starts at 7:06:35. But I highly recommend all of the panel presentations and discussions.

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A Tome of Essays on Christianity and the Law

In our most recent podcast, Mark and I spoke with Professors Julia Mahoney and Steven Smith about the prospects for a revival of classical law in America. That retrieval would depend, at least in part, upon the systematic reintroduction of Christian concepts and categories. Our guests had mixed views on the matter, reflecting different feelings about what the future might hold.

Here is a new volume of essays that seems to support Professor Mahoney’s sense of things (and to which Professor Smith contributed a chapter!): The Oxford Handbook of Christianity and Law, co-edited by our friend and law-and-religion titan, Professor John Witte, Jr., and Professor Rafael Domingo. The book is massive, and I don’t see a single chapter I am not interested to read. A must-have to usher in the season of Advent.

This volume tells the story of the interaction between Christianity and law—historically and today, in the traditional heartlands of Christianity and around the globe. Sixty new chapters by leading scholars provide authoritative but accessible accounts of foundational Christian teachings on law and legal thought over the past two millennia as well as the current interaction and contestation of law and Christianity on all continents. Several chapters explore the ways in which Christianity shaped and was shaped by core public, private, penal, and procedural laws. Other chapters analyze various old and new forms of Christian canon law, natural law theory, and religious freedom norms as well as Christian teachings on fundamental principles of law, politics, and legal order. A final cluster of chapters probe Christian contributions to controversial and cutting legal issues of migration, biotechnology, environmentalism, and racial justice. Together, the chapters make clear that Christianity and law have had a perennial and permanent influence on each other over time and across cultures, albeit with varying levels of intensity and effectiveness.

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George Washington’s Political Writing

Thanksgiving is the holiday that most perfectly reflects the political theology of America. Its distinctive blend of religious politics, and political religion. And there are few better representatives of this fusion than George Washington. Listen to the music of his political theology in this, the beginning of his famous Thanksgiving Day proclamation of 1789:

Whereas it is the duty of all Nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favor– and whereas both Houses of Congress have by their joint Committee requested me to recommend to the People of the United States a day of public thanksgiving and prayer to be observed by acknowledging with grateful hearts the many signal favors of Almighty God especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness.

Now therefore I do recommend and assign Thursday the 26th day of November next to be devoted by the People of these States to the service of that great and glorious Being, who is the beneficent Author of all the good that was, that is, or that will be– That we may then all unite in rendering unto him our sincere and humble thanks–for his kind care and protection of the People of this Country previous to their becoming a Nation–for the signal and manifold mercies, and the favorable interpositions of his Providence which we experienced in the course and conclusion of the late war–for the great degree of tranquility, union, and plenty, which we have since enjoyed–for the peaceable and rational manner, in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national One now lately instituted–for the civil and religious liberty with which we are blessed; and the means we have of acquiring and diffusing useful knowledge; and in general for all the great and various favors which he hath been pleased to confer upon us.

As it happens, an excellent edited collection has just been published by Carson Holloway and our dear friend and outgoing executive director of the James Madison program at Princeton, Bradford P. Wilson: The Political Writings of George Washington (Cambridge University Press). I’m told a paperback edition is in the offing as well, but this one looks well worth a holiday splurge.

The Political Writings of George Washington includes Washington’s enduring writings on politics, prudence, and statesmanship in two volumes. It is the only complete collection of his political thought, which historically, has received less attention than the writings of other leading founders such as Thomas Jefferson, James Madison, John Adams, and Alexander Hamilton. Covering his life of public service—from his young manhood, when he fought in the French and Indian Wars, through his time as commander-in-chief of the revolutionary army; his two terms as America’s first president, and his brief periods of retirement, during which he followed and commented on American politics astutely—the volumes also include first-hand accounts of Washington’s death and reflections on his legacy by those who knew or reflected deeply on his significance. The result is a more thorough understanding of Washington’s political thought and the American founding.

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“Anchors Aweigh” (reviewing Hadley Arkes, “Mere Natural Law”)

I have review with that title that is both appreciative and critical of Professor Hadley Arkes’ book, Mere Natural Law: Originalism and the Anchoring Truths of the Constitution, in this month’s issue of First Things. A bit:

C.S. Lewis’s Mere Christianity famously begins with vignettes of ordinary experience. People of all ages and levels of education, Lewis observes, often say things like: “How’d you like it if anyone did the same to you?” “That’s my seat, I was there first,” “Leave him alone, he isn’t doing you any harm,” “Why should you shove in first?” “Give me a bit of your orange, I gave you a bit of mine,” “Come on, you promised.” This was how Lewis introduced his readers to the natural law. Our shared moral responses in cases like these, he argued, are shaped by a universal standard of right behavior. Nobody, or almost nobody, says, “To hell with your standard”; they instead try to show that their behavior in fact conforms to it. Thus did Lewis guide his audience up the Christian mountain by the gradual path of concrete common life before ascending to more difficult theological heights.

In Mere Natural Law: Originalism and the Anchoring Truths of the Constitution, Hadley Arkes adapts Lewis’s title and method to the natural law constitutionalism that he has developed over a lifetime of scholarship and erudition. The thread running through works such as First Things (1986, four years before the founding of this journal), Beyond the Constitution (1990), The Return of George Sutherland (1994), Natural Rights and the Right to Choose (2004), Constitutional Illusions and Anchoring Truths (2006), and others, is that the Constitution cannot be understood apart from the moral principles of the natural law that grounds it. The founding generation, Arkes has consistently argued, grasped the truths of the natural law and believed that these truths lay at the root of American constitutional government. Today, he says, we must do likewise: see beyond the constitutional text to the eternal principles of natural law antecedent to the Constitution’s ratification. What constitutional law needs is more moral argument about the natural law…

Arkes seems to be looking at our moral fractures through the wrong end of the telescope. He writes: “There has been no more common distraction over ‘rights’ than the tendency to fixate on rights to particular things, such as jobs or housing, while blocking from sight these underlying principles that mark the rightful and wrongful claims to these goods.” This is wrong, and its wrongness is illustrative of the way the book misfires. The last thing we need is more constitutional debate about high principle—about what dignity or equality or freedom or autonomy or even justice, in the abstract and divorced from ordinary life, requires of our constitutional law. In a society increasingly riven by disagreement over fundamental commitments, it is the world of the concrete, of practices, particulars, customs, habits, and traditions, that assumes ever greater importance. Or, to put it in a natural law register, we need a greater focus in constitutional law on ius—on the objects of constitutional justice—to clarify what our principles demand from our law. From the bottom up.

What we need, in a word, is a constitutionalism of things and the practices that attend them. That is what our Constitution and its law concern: voting procedures, religious observances and symbols, speech practices, families, homes, businesses, firearms, countless varieties of human relationships, schools, property and contractual arrangements, wills, government policies and programs of many kinds, and innumerable other cultural and political practices. The constitutionalism we need must shore up these practices of the past against the ruin of the present. This is why Lewis began as he did, with baby steps and quotidian cases rather than abstract principles. Seventy years after Mere Christianity, we need that approach more, not less, acutely. We are not ready—indeed, we are less ready than we have ever been—to be confronted with the empyrean of high natural law principle, which Arkes illustrates in this book with his usual verve and panache. The truths of the sky are real enough, but anchoring truths are found in the earth.

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Dissolving Liberal Democracy’s Substrata

The sociologist and cultural critic, James Davison Hunter, is well known for his discussion in the 1990s of the concept of “culture war.” Hunter is an astute and insightful diagnostician of the present political and social discontents. On a personal note, his work has influenced my own thinking and writing on many of the matters we often take up at the Forum.

I’m a little early to notice this new book (no cover quite yet), which comes out in February of next year, but here Hunter is with a new volume in the same vein, but which seems to make the point that liberal democracies depend for their survival on other, non-liberal premises and commitments, and these (so he argues) have now been dissolved so completely as to make the political project deeply unstable. The book is Democracy and Solidarity: On the Cultural Roots of America’s Political Crisis (Yale University Press). One to pre-order and to anticipate.

Liberal democracy in America has always contained contradictions—most notably, a noble but abstract commitment to freedom, justice, and equality that, tragically, has seldom been realized in practice. While these contradictions have caused dissent and even violence, there has always been an underlying and evolving solidarity drawn from the cultural resources of America’s “hybrid Enlightenment.”
 
James Davison Hunter, who introduced the concept of “culture wars” thirty years ago, tells us in this new book that the historic sources of national solidarity have largely dissolved. While a deepening political polarization is the most obvious sign of this, the true problem is not polarization per se but the absence of cultural resources to work through what divides us. All political regimes require some level of consensus. If it cannot be generated organically, it will be imposed coercively.
 
Can America’s political crisis be fixed? Can an Enlightenment-era institution—liberal democracy—survive and thrive in a post-Enlightenment world? If, for some, salvaging the older sources of national solidarity is neither possible sociologically, nor desirable politically or ethically, what cultural resources will fund liberal democracy going forward?

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“Establishment as Tradition”

I have posted a new essay, Establishment as Tradition, forthcoming in the Yale Law Journal Forum. It brings together two things I have been thinking about only separately to date: what binds a political community, and what fosters mutual trust and forbearance within it, in its “establishments,” apart from whatever “establishments of religion” may be forbidden in our polity; and traditionalism’s civic character-forming qualities. Comments from interested readers are welcome, as the piece is still a draft. Here is the abstract:

Traditionalism is a constitutional theory that focuses on concrete political and cultural practices, and the endurance of those practices before, during, and after ratification of the Constitution, as the presumptive determinants of constitutional meaning and constitutional law. The Supreme Court has long interpreted traditionally but now says explicitly that it uses a method of “text, history, and tradition” in several areas of constitutional law. Foremost among these is the Establishment Clause. This Essay examines two questions about traditionalism, both of which concern the Establishment Clause in distinct but related ways. First, why has traditionalism had special salience in this area? Second, is traditionalism more a mood or disposition than a theory, more a matter of the heart than of the head?

On the first matter, traditionalism did not materialize out of thin air in the 2021 term, and it has had unusual power in the interpretation of the Establishment Clause for decades. The question is why, and answering it has implications for constitutional theory more generally. For if some domains of constitutional law are more amenable than others to traditionalist interpretation, the same may be true of other theories. The answer for the Establishment Clause is that establishments are made up of politically foundational traditions. Political establishments are constituted by the concrete, authoritative, and enduring practices and institutions that make up the essential settlements of a polity. To interpret the phrase, “Congress shall make no law respecting an establishment of religion,” is immediately to be directed by the text not to an idea or an abstraction, but to something solid, authoritative, and lasting—“an establishment.” This is a reading supported by the other uses of “establishment” and its cognates in the Constitution. “An establishment of religion,” therefore, is a political practice that sits outside the limits of the constitutionally permissible practices of American political establishment. Unconstitutional establishments of religion depend upon the prior existence of constitutional establishments, and those establishments are often instantiated in a people’s most powerful political traditions. More than certain other domains of constitutional law, the text of the Establishment Clause is inherently traditionalist because its meaning takes shape against a network of concrete, authoritative, and enduring institutional, political practices. And the practices of establishment are essential to fostering the civic trust that is necessary for any polity’s survival. Without them, the political community fractures. In time, it dies.

As for the second question, some critics have argued that traditionalism is not a full-fledged theory so much as a mood or disposition, and that traditions are too manipulable and insubstantial to form the raw material for a theory of constitutional meaning or constitutional law. The question matters because it concerns whether traditionalism is an independent constitutional theory in its own right or instead at most a feature of others, dependent on their methods and justifications. I will argue that traditionalism is as much a constitutional theory as any of its rivals, though that claim will depend on just what it means to count as a theory. It is, in fact, its application in Establishment Clause cases that most clearly demonstrates its comparative systematicity, generality, and predictability of application, three critical elements for qualifying as a constitutional theory. Traditionalism is, to be sure, not a decisional algorithm, but neither is any attractive constitutional theory; it acknowledges and even welcomes reasonable disagreement within shared premises, as do other plausible theories. Still, the critics are in a sense correct: traditionalism has a characterological or dispositional component that other approaches may lack and this, too, is illustrated in its application to the Establishment Clause. Its character, and the kind of disposition it develops in interpreters subscribing to it, is preservative and custodial. That is not a flaw but a distinguishing virtue. It makes traditionalism preferable to other interpretive possibilities because it makes traditionalism more than just an interpretive theory, reflecting and shaping character even as it provides a coherent framework for adjudicating constitutional cases.

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Deseret News piece on the case of the missing law and religion cases

I’m quoted in this piece by Kelsey Dallas of the Deseret News (whom we have interviewed at the Forum before) on the unusual absence of law and religion cases in this year’s slate of Supreme Court cases. Of course, some might still be added, as Professor Mark Rienzi suggests in the article.

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Prophecy and Politics

The strict separationist model of religion and politics that long has held sway in this country (or, at any rate, that was said to hold sway) often obscured the highly political qualities of religious belief and practice. Among these is certainly the power of prophetic witness, a mode of political engagement that is often uncompromising, idealistic, critical, and even apocalyptic. Professor Cathy Kaveny once called this style of politics “moral chemotherapy.” Indeed, it is an open question whether this mode of politics or its alternative (moderate, realistic, whiggish, pragmatic) is the more effective in implementing its respective vision. And this is one more area of overlap or interaction between law and religion that has been suppressed from view and study in the American liberal dispensation.

Here is a fascinating looking new book that helps to remedy this problem: The Third Sword: On the Political Role of Prophets (Cambridge University Press), by James Bernard Murphy (Dartmouth).

Prophets are wild cards in the game of politics, James Bernard Murphy writes in this startling new book. They risk their lives by calling out the abuses of political and religious leaders, forcing us to confront evils we would prefer to ignore. By setting moral limits on political leaders, prophets chasten our political pretensions and remind us there are values that transcend politics. They wield a third sword—distinct from the familiar swords of state and church power—their sword is the word of God. The Third Sword offers a new take on political history, illustrating a theory of prophetic politics through tales of political crises, interspersed with direct dialogue between the prophets and their persecutors. With chapters on Socrates, Jesus, Joan of Arc, Thomas More, and Martin Luther King, Murphy brings these prophets to life with storytelling that blends biography, history, and political theory.