Frazer, “God Against the Revolution”

The University of Kansas Press is known, for good reason, to be one of the most Loyalistsconsistently interesting and high quality presses for American legal and political history. Here is a fascinating new book about religious arguments against the American Revolution–a kind of obverse of what one sees in the Declaration of Independence (see, e.g., all that talk about what unalienable rights “endowed by their Creator” required of early Americans). The book is God Against the Revolution: The Loyalist Clergy’s Case Against the American Revolution (University of Kansas Press), by Gregg L. Frazer.

Because, it’s said, history is written by the victors, we know plenty about the Patriots’ cause in the American Revolution. But what about the perhaps one-third of the population who opposed independence? They too were Americans who loved the land they lived in, but their position is largely missing from our understanding of Revolution-era American political thought. With God against the Revolution, the first comprehensive account of the political thought of the American Loyalists, Gregg L. Frazer seeks to close this gap.

Because the Loyalists’ position was most clearly expressed by clergymen, God against the Revolution investigates the biblical, philosophical, and legal arguments articulated in Loyalist ministers’ writings, pamphlets, and sermons. The Loyalist ministers Frazer consults were not blind apologists for Great Britain; they criticized British excesses. But they challenged the Patriots claiming rights as Englishmen to be subject to English law. This is one of the many instances identified by Frazer in which the Loyalist arguments mirrored or inverted those of the Patriots, who demanded natural and English rights while denying freedom of religion, expression, and assembly, and due process of law to those with opposing views. Similarly the Loyalist ministers’ biblical arguments against revolution and in favor of subjection to authority resonate oddly with still familiar notions of Bible-invoking patriotism.

For a revolution built on demands for liberty, equality, and fairness of representation, God against Revolution raises sobering questions—about whether the Patriots were rational, legitimate representatives of the people, working in the best interests of Americans. A critical amendment to the history of American political thought, the book also serves as a cautionary tale in the heated political atmosphere of our time.

“Great Christian Jurists in Spanish History” (Domingo & Martinez-Torron, eds.)

Here’s a wonderful looking collection of essays on some of the major figures in Spanish Spanish Juristsjudicial history, focusing on their Christian thought. It includes better known judges such as Francisco de Vitoria and Juan Donoso Cortes, as well as several that are new at least to me. A very interesting project: Great Christian Jurists in Spanish History (CUP), edited by Rafael Domingo and Javier Martínez-Torrón.

The Great Christian Jurists series comprises a library of national volumes of detailed biographies of leading jurists, judges and practitioners, assessing the impact of their Christian faith on the professional output of the individuals studied. Spanish legal culture, developed during the Spanish Golden Age, has had a significant influence on the legal norms and institutions that emerged in Europe and in Latin America. This volume examines the lives of twenty key personalities in Spanish legal history, in particular how their Christian faith was a factor in molding the evolution of law. Each chapter discusses a jurist within his or her intellectual and political context. All chapters have been written by distinguished legal scholars from Spain and around the world. This diversity of international and methodological perspectives gives the volume its unique character; it will appeal to scholars, lawyers, and students interested in the interplay between religion and law.

Fraser, “Atheism, Fundamentalism and the Protestant Reformation”

In the “I knew it!” department. More seriously, here is a new book that argues for Frasercommon origins, intellectual dispositions, and weaknesses as between atheism and fundamentalism, all deriving ultimately from the Protestant Reformation: Atheism, Fundamentalism and the Protestant Reformation: Uncovering the Secret Sympathy (CUP) by Liam Jerrold Fraser.

In this study of new atheism and religious fundamentalism, this book advances two provocative – and surprising – arguments. Liam Jerrold Fraser argues that atheism and Protestant fundamentalism in Britain and America share a common historical origin in the English Reformation, and the crisis of authority inaugurated by the Reformers. This common origin generated two presuppositions crucial for both movements: a literalist understanding of scripture, and a disruptive understanding of divine activity in nature. Through an analysis of contemporary new atheist and Protestant fundamentalist texts, Fraser shows that these presuppositions continue to structure both groups, and support a range of shared biblical, scientific, and theological beliefs. Their common historical and intellectual structure ensures that new atheism and Protestant fundamentalism – while on the surface irreconcilably opposed – share a secret sympathy with one another, yet one which leaves them unstable, inconsistent, and unsustainable.

Larsen, “John Stuart Mill: A Secular Life”

John Stuart Mill is an absolutely critical thinker for understanding so much of the philosophical basis of contemporary American law. From balancing tests to ideas of “harm” to the defense of free speech (at least a defense in a particular libertarian vein–see, e.g., Book II of On Liberty), one must know Mill to see how law speaks in the ways that it does.

Here is a new book that emphasizes the secularism of Mill’s thought: John Stuart Mill: A Secular Life (OUP) by Timothy Larsen. But in doing so, it also illuminates (as Maurice MillCowling once did from, as it were, the other direction) the deeply religious quality of Mill’s philosophy as the great “Saint of Rationalism.”

John Stuart Mill observed in his Autobiography that he was a rare case in nineteenth-century Britain because he had not lost his religion but never had any. He was a freethinker from beginning to end. What is not often realized, however, is that Mill’s life was nevertheless impinged upon by religion at every turn. This is true both of the close relationships that shaped him and of his own, internal thoughts. Mill was a religious sceptic, but not the kind of person which that term usually conjures up. The unexpected presence and prominence of spirituality is not only there in Mill’s late, startling essay, ‘Theism’, in which he makes the case for hope in God and in Christ. It is everywhere–in his immediate family, his best friends, and his vision for the future. It is even there in such a seemingly unlikely place as his Logic, which repeatedly addresses religious themes. John Stuart Mill: A Secular Life is a biography which follows one of Britain’s most well-respected intellectuals through all of the key moments in his life from falling in love to sitting in Parliament and beyond. It also explores his classic works including, On LibertyPrinciples of Political EconomyUtilitarianism, and The Subjection of Women. In this well-researched study which offers original findings and insights, Timothy Larsen presents the Mill you never knew. The Mill that even some of his closest disciples never knew. This is John Stuart Mill, the Saint of Rationalism–a secular life and a spiritual life.

Fea, “Believe Me”

Here’s one in the style of Mark Noll’s The Scandal of the Evangelical Mind–a book by an feaEvangelical Christian historian that is extremely critical of Evangelical politics, particularly the embrace by some Evangelicals of Donald Trump. The book is Believe Me: The Evangelical Road to Donald Trump (Eerdmans), by John Fea.

“Believe me” may be the most commonly used phrase in Donald Trump’s lexicon. Whether about building a wall or protecting a Christian heritage, the refrain has been constant. And to the surprise of many, a good 80 percent of white evangelicals have believed Trump—at least enough to help propel him into the White House.

Historian John Fea is not surprised, however—and in these pages he explains how we have arrived at this unprecedented moment in American politics. An evangelical Christian himself, Fea argues that the embrace of Donald Trump is the logical outcome of a long-standing evangelical approach to public life defined by the politics of fear, the pursuit of worldly power, and a nostalgic longing for an American past.

As insightful as it is timely, Fea’s Believe Me challenges Christians to replace fear with hope, the pursuit of power with humility, and nostalgia with history.

DeGirolami at Princeton in Spring 2019

Just a quick piece of happy Center news. I’ll be a visiting fellow at the James Madison Program in Princeton University’s Department of Politics next spring. Mark has enjoyed a very fruitful period there this spring, and I’m looking forward to learning from all of the wonderful folks who run and will participate in the program, as well as taking advantage of all that Princeton has to offer. I’ll be working on a book project (with my sometime co-author, Kevin Walsh) investigating the church-state worldview of George Washington, Patrick Henry, and John Marshall, and what happened to it over time, and why it did so.

Mitchell, “The Limits of Liberalism”

For this June Friday, a book right down the Tradition Project fairway, which may be Liberalismuseful reading for the upcoming gathering of the Project in Rome, Italy, in the winter of 2018 (more soon about this): The Limits of Liberalism: Tradition, Individualism, and the Crisis of Freedom (ND Press), by political scientist Mark T. Mitchell.

In The Limits of Liberalism, Mark T. Mitchell argues that a rejection of tradition is both philosophically incoherent and politically harmful. This false conception of tradition helps to facilitate both liberal cosmopolitanism and identity politics. The incoherencies are revealed through an investigation of the works of Michael Oakeshott, Alasdair MacIntyre, and Michael Polanyi.

Mitchell demonstrates that the rejection of tradition as an epistemic necessity has produced a false conception of the human person–the liberal self–which in turn has produced a false conception of freedom. This book identifies why most modern thinkers have denied the essential role of tradition and explains how tradition can be restored to its proper place.

Oakeshott, MacIntyre, and Polanyi all, in various ways, emphasize the necessity of tradition, and although these thinkers approach tradition in different ways, Mitchell finds useful elements within each to build an argument for a reconstructed view of tradition and, as a result, a reconstructed view of freedom. Mitchell argues that only by finding an alternative to the liberal self can we escape the incoherencies and pathologies inherent therein.

Greenfield, “Corporations Are People Too (And They Should Act Like It)”

Citizens United v. FEC (2008) and Burwell v. Hobby Lobby Stores (2014) were important Supreme Court cases in establishing corporate rights of free speech and religious freedom (the former constitutionally, the latter statutorily). They were and are also loudly criticized for extending these rights of “personhood” to the artificial person of the corporation. Certainly in the religious freedom context, but also in the speech context, the disagreement over corporate rights tracks a more fundamental difference with respect to the fundamental location of the right of religious liberty: the “church” or the individual.

Here is a new book that argues that corporations do have rights under certain Yalecircumstances, but that this imposes on them certain responsibilities–responsibilities which, the author claims, are imposed on individuals as rights-bearers. I’m curious to see just which responsibilities he has in mind. The book is Corporations Are People Too (And They Should Act Like It) (Yale UP) by Kent Greenfield (image only available in the Yale catalogue at present).

Are corporations people? The U.S. Supreme Court launched a heated debate when it ruled in Citizens United that corporations can claim the same free speech rights as humans. Should corporations be able to claim rights of free speech, religious conscience, and due process? Kent Greenfield provides an answer: Sometimes. With an analysis sure to challenge the assumptions of both progressives and conservatives, Greenfield explores corporations’ claims to constitutional rights and the foundational conflicts about their obligations in society. He argues that a blanket opposition to corporate personhood is misguided, since it is consistent with both the purpose of corporations and the Constitution itself that corporations can claim rights at least some of the time. The problem with Citizens United is not that corporations have a right to speak, but for whom they speak. The solution is not to end corporate personhood but to require corporations to act more like citizens.

Some Reflections on Animus and “Adjudicatory Bodies”

Another slightly longer thought on the Masterpiece Cakeshop decision. Many were interested to see how the role of “animus” might affect the outcome in the case, and specifically the free exercise leg of the case. Animus played a starring role. Animus mattered in two ways: (1) the favorable treatment given by the Commission to claims against other bakers who “objected to a requested cake on the basis of conscience” (this was said by the Court to be an “indication of hostility” to Phillips); and (2) the comments of certain commissioners felt by the Court to evince hostility to Phillips’ religious views, comments which were never subsequently disavowed (more evidence of animus).

I confess that as to the second category, the Court makes some comments that are genuinely puzzling to me. For example, the Court says that the following statement by one Commissioner was susceptible either of a neutral reading or of a reading suggesting “animus”: “[I]f a businessman wants to do business in the state and he’s got an issue with the— the law’s impacting his personal belief system, he needs to look at being able to compromise.” In light of the later comments of a different Commissioner, the Court decided that the animus reading “seems more likely.” I really don’t understand this. The Commissioner here was offering the view that when somebody goes into business, the ambit of their religious exercise rights may be different than when one does not go into business, such that the person may have to “compromise.” Like it or not, the antidiscrimination law seems to suggest as much. And why should the comments of a second Commissioner, offered later, suggest that the first Commissioner’s comments were hateful? I wonder if the Court’s approach has the effect of inducing the members of adjudicatory bodies not to say a word, and perhaps even to keep their written dispositions as short and inscrutable as possible. If even predictive evaluations of the strength of the claims suggest animus, that seems to be quite an expansion of an already sweeping concept.

And speaking of “adjudicatory bodies.” In describing the state of jurisprudential play with respect to “animus” evidence, the Court said this:

Members of the Court have disagreed on the question whether statements made by lawmakers may properly be taken into account in determining whether a law intentionally discriminates on the basis of religion. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 540– 542 (1993); id., at 558 (Scalia, J., concurring in part and concurring in judgment). In this case, however, the remarks were made in a very different context—by an adjudicatory body deciding a particular case.

The Court seems to be acknowledging that not everybody that agreed on the disposition in Lukumi signed on to the “animus” discussion. Indeed, the “animus” discussion in Lukumi did not get a majority of the Court. But here it does: it gets 7 votes. Why the difference?

The explanation offered here seems to be that Lukumi dealt with “lawmakers” while this case deals with the “very different context” of “adjudicatory bod[ies] deciding a particular case.” It is true that in the following section of the opinion, the language about “adjudicatory bodies” does not reappear as a limitation. When the Court again cites to Lukumi for the proposition that “the government’s” “neutrality” may be evaluated by looking to “the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body,” we do not see more language about adjudicatory bodies.

But the application of these factors in this case to an adjudicatory body which ruled on this particular case–the Commission–does appear just after the enumeration of these factors, and there is no suggestion that the scope of animus analysis goes further than that. Indeed, taken together, the statements may suggest that there is a new majority for the sort of “animus” analysis that did not get a majority in Lukumi, but only when one is dealing with “adjudicatory bodies deciding a particular case.”

If that reading is right (and it of course may not be), what could explain a new, special animus rule for “adjudicatory bodies”? Admittedly this is speculation, and I don’t have a firm answer in the least. But perhaps it is the particularism of adjudication. When a court expresses hostility to the litigants in front of it, and those comments directly influence the outcome of the litigation, there is a closer nexus between the animus and the specific result than is the case when a legislative body makes a general law affecting persons that are neither before it nor even specifically identified (incidentally, how this works out in the Executive context is entirely unclear to me). So that to the extent that one has qualms about the vagueness of animus analysis–its susceptibility to manipulation, for example–those qualms may be relieved to some extent by the particularized focus on a specific litigant, in a specific litigation, whose outcome is determined by the adjudicator right in front of that litigant.

Again, just a speculation. We’ll see how, if at all, the “adjudicatory bodies” language is picked up by future cases, and whether we now have a special animus rule for a particular set of government actors.

Ginsburg & Huq, “How To Save a Constitutional Democracy”

It’s democratic soteriology week here at the Forum. Frankly, it’s astonishing just how many books are being published by academics–legal and otherwise–on the subject of saving democracy. But it seems most of them have in mind the saving of particular kinds and forms of democracy, rather than democracy itself, since the threats most of them warn against and advise about are not principally those of democracy but of other Democracy Saviors.jpgperceived evils. That seems to be the case with this new book as well, How to Save a Constitutional Democracy (Chicago UP) by University of Chicago Law School professors Tom Ginsburg and Aziz Huq. The “rigidity” of the Constitution, and its consequent empowerment of the Supreme Court to “infringe” people’s rights, are blamed.

Democracies are in danger. Around the world, a rising wave of populist leaders threatens to erode the core structures of democratic self rule. In the United States, the election of Donald Trump marked a decisive turning point for many. What kind of president calls the news media the “enemy of the American people,” or sees a moral equivalence between violent neo-Nazi protesters in paramilitary formation and residents of a college town defending the racial and ethnic diversity of their homes? Yet we can be assured that the Constitution offers safeguards to protect against lasting damage— or can we? How to Save a Constitutional Democracy mounts an urgent argument that we can no longer afford to be complacent. Tom Ginsburg and Aziz Z. Huq show how constitutional rules can either hinder or hasten the decline of democratic institutions. The checks and balances of the federal government, a robust civil society and media, and individual rights—such as those enshrined in the First Amendment—do not necessarily succeed as bulwarks against democratic decline. Rather, Ginsburg and Huq contend, the sobering reality for the United States is that, to a much greater extent than is commonly realized, the Constitution’s design makes democratic erosion more, not less, likely. Its structural rigidity has had the unforeseen consequence of empowering the Supreme Court to fill in some details—often with doctrines that ultimately facilitate rather than inhibit the infringement of rights. Even the bright spots in the Constitution—the First Amendment, for example—may have perverse consequences in the hands of a deft communicator, who can degrade the public sphere by wielding hateful language that would be banned in many other democracies. But we—and the rest of the world—can do better. The authors conclude by laying out practical steps for how laws and constitutional design can play a more positive role in managing the risk of democratic decline.

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