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.
Congratulations to our friend, Tom Berg, on this very interesting collection of essays on the relationship between intellectual property and patent law, on the one hand, and law and religion on the other. The book is Patents on Life: Religious, Moral, and Social Justice Aspects of Biotechnology and Intellectual Property (Cambridge University Press), edited by Thomas C. Berg, Roman Cholij, and Simon Ravenscroft.
“This volume brings together a unique collection of legal, religious, ethical, and political perspectives to bear on debates concerning biotechnology patents, or ‘patents on life’. The ever-increasing importance of biotechnologies has generated continual questions about how intellectual property law should treat such technologies, especially those raising ethical or social-justice concerns. Even after many years and court decisions, important contested issues remain concerning ownership of and rewards from biotechnology – from human genetic material to genetically engineered plants – and regarding the scope of moral or social-justice limitations on patents or licensing practices. This book explores a range of related issues, including questions concerning morality and patentability, biotechnology and human dignity, and what constitute fair rewards from genetic resources. It features high-level international, interfaith, and cross-disciplinary contributions from experts in law, religion, and ethics, including academics and practitioners, placing religious and secular perspectives into dialogue to examine the full implications of patenting life.”
Mark has written a few times on this site about contemporary controversies concerning yoga, at one time a distinctively religious practice but today a nearly universal feature of the lucrative secular campaign in quest of “wellness.” Here’s a new book that chronicles yoga’s path: The Story of Yoga: From Ancient India to the Modern West (Oxford University Press), by Alistair Shearer.
“How did an ancient Indian spiritual discipline turn into a $20+ billion-a-year mainstay of the global wellness industry? What happened along yoga’s winding path from the caves and forests of the sages to the gyms, hospitals and village halls of the modern West?
This comprehensive history sets yoga in its global cultural context for the first time. It leads us on a fascinating journey across the world, from arcane religious rituals and medieval body-magic, through muscular Christianity and the British Raj, to the Indian nationalist movement and the arrival of yoga in the twentieth-century West. We discover how the practice reached its present-day ubiquity and how it became embedded in powerful social currents shaping the world’s future, such as feminism, digital media, celebrity culture, the stress pandemic and the quest for an authentic identity in the face of unprecedented change.
Shearer’s revealing history boasts a colorful cast of characters past and present, who tell an engaging tale of scholars and scandal, science and spirit, wisdom and waywardness. This is the untold story of yoga, warts and all.”
Just a little fragment for your Tuesday morning from Dostoyevsky’s “The Brothers Karamazov” that sprang to mind when I came across this wonderfully interesting new book: Russian Conservatism (Cornell University Press), by Paul Robinson. (And what an evocative cover!)
“Paul Robinson’s Russian Conservatism examines the history of Russian conservative thought from the beginning of the nineteenth century to the present. As he shows, conservatism has made an underappreciated contribution to Russian national identity, to the ideology of Russian statehood, and to Russia’s social-economic development. Robinson charts the contributions made by philosophers, politicians, and others during the Imperial, Soviet, and post-Soviet periods. Looking at cultural, political, and social-economic conservatism in Russia, he discusses ideas and issues of more than historical interest. Indeed, what Russian Conservatism demonstrates is that such ideas are helpful in interpreting Russia’s present as well as its past and will be influential in shaping Russia’s future, for better or for worse, in the years to come.
For the past two centuries Russian conservatives have sought to adapt to the pressures of modernization and westernization and, more recently, globalization, while preserving national identity and political and social stability. Through Robinson’s research we can now understand how Russian conservatives have continually proposed forms of cultural, political, and economic development seen as building on existing traditions, identity, forms of government, and economic and social life, rather than being imposed on the basis of abstract theory and foreign models.”
Here’s an interesting book on the history of atheism and agnosticism whose basic claim appears to be that the ascendancy of unbelief reflects the growth of powerful emotional desires rather than persuasion by argument. The book is Unbelievers: An Emotional History of Doubt (Harvard University Press), by Alex Ryrie.
“Why have societies that were once overwhelmingly Christian become so secular? We think we know the answer, but in this lively and startlingly original reconsideration, Alec Ryrie argues that people embraced unbelief much as they have always chosen their worldviews: through their hearts more than their minds.
Looking back to the crisis of the Reformation and beyond, Unbelievers shows how, long before philosophers started to make the case for atheism, powerful cultural currents were challenging traditional faith. These tugged in different ways not only on celebrated thinkers such as Machiavelli, Montaigne, Hobbes, and Pascal, but on men and women at every level of society whose voices we hear through their diaries, letters, and court records.
Ryrie traces the roots of atheism born of anger, a sentiment familiar to anyone who has ever cursed a corrupt priest, and of doubt born of anxiety, as Christians discovered their faith was flimsier than they had believed. As the Reformation eroded time-honored certainties, Protestant radicals defended their faith by redefining it in terms of ethics. In the process they set in motion secularizing forces that soon became transformational. Unbelievers tells a powerful emotional history of doubt with potent lessons for our own angry and anxious age.
I want to call a little notice to John Huleatt’s review of Luke Goodrich’s new book, Free to Believe: The Battle Over Religious Liberty in America. It’s a thorough, thoughtful, and positive review, and I’m especially pleased to record that Mr. Huleatt is a St. John’s Law graduate, class of 2002.
The University of Kansas press has long punched above its weight. Lately, it has been publishing books concerning the “political” (that is, non-judicial) Constitution by political scientists, political theorists, and constitutional theorists. Many of these are part of a sort of judicial restraint revanchism, which is itself largely out of vogue among many constitutional theorists. Here’s another book that fits into this general category: Reconsidering Judicial Finality: Why the Supreme Court is Not the Last Word on the Constitution (Kansas Press), by Louis Fisher.
“Federal judges, legal scholars, pundits, and reporters frequently describe the Supreme Court as the final word on the meaning of the Constitution. The historical record presents an entirely different picture. A close and revealing reading of that record, from 1789 to the present day, Reconsidering Judicial Finality reminds us of the “unalterable fact,” as Chief Justice Rehnquist once remarked, “that our judicial system, like the human beings who administer it, is fallible.” And a Court inevitably prone to miscalculation and error, as this book clearly demonstrates, cannot have the incontrovertible last word on constitutional questions.
In this deeply researched, sharply reasoned work of legal myth-busting, constitutional scholar Louis Fisher explains how constitutional disputes are settled by all three branches of government, and by the general public, with the Supreme Court often playing a secondary role. The Court’s decisions have, of course, been challenged and reversed in numerous cases—involving slavery, civil rights, child labor legislation, Japanese internment during World War II, abortion, and religious liberty. What Fisher shows us on a case-by-case basis is how the elected branches, scholars, and American public regularly press policies contrary to Court rulings—and regularly prevail, although the process might sometimes take decades. From the common misreading of Marbury v. Madison, to the mistaken understanding of the Supreme Court as the trusted guardian of individual rights, to the questionable assumptions of the Courts decision in Citizens United, Fisher’s work charts the distance and the difference between the Court as the ultimate arbiter in constitutional matters and the judgment of history.
The verdict of Reconsidering Judicial Finality is clear: to treat the Supreme Court’s nine justices as democracy’s last hope or as dangerous activists undermining democracy is to vest them with undue significance. The Constitution belongs to all three branches of government—and, finally, to the American people.”
An area of law and religion that has gotten a bit of attention relatively recently is the so-called “government speech” doctrine, which concerns the fairly liberal (in the non-political sense) rules about what the government may express about religion. So, for example, Summum v. Pleasant Grove City, in which a municipality rejected a privately donated monument by a religious group for display in a public park alongside several other monuments, including a Ten Commandments monument, was decided in favor of the municipality on the basis that the government has considerable latitude in deciding how to speak.
Here is an interesting new book that focuses on the doctrine of government speech in the law and religion context and elsewhere: The Government’s Speech and the Constitution (Cambridge University Press), by Helen Norton.
“When we discuss constitutional law, we usually focus on the constitutional rules that apply to what the government does. Far less clear are the constitutional rules that apply to what the government says. When does the speech of this unusually powerful speaker violate our constitutional rights and liberties? More specifically, when does the government’s expression threaten liberty or equality? And under what circumstances does the Constitution prohibit our government from lying to us? In The Government’s Speech and the Constitution, Professor Helen Norton investigates the variety and abundance of the government’s speech, from early proclamations and simple pamphlets, to the electronic media of radio and television, and ultimately to today’s digital age. This enables us to understand how the government’s speech has changed the world for better and for worse, and why the government’s speech deserves our attention, and at times our concern.”
Here’s a new book by Slate magazine writer Mark Joseph Stern about the Roberts Court. He seems to have some criticisms, and I have no doubt that some of them concern the Court’s religion clause jurisprudence. The book is American Justice 2019: The Roberts Court Arrives (University of Pennsylvania Press).
“Following the retirement of Justice Anthony Kennedy and the controversial confirmation of Justice Brett Kavanaugh, the Supreme Court plunged into a contentious term that featured divisive cases involving abortion, immigration, capital punishment, and voting rights on the court’s docket. In American Justice 2019, Mark Joseph Stern examines the term’s most controversial opinions and highlights the consequences of Chief Justice John Roberts stepping into a new role as the court’s swing vote.
No longer bound by Kennedy’s erratic moderation, Roberts has begun doling out victories to both Democrats and Republicans, albeit with a clear rightward tilt. Early in the term, Roberts delivered a public rebuke to Trump’s attacks on the judiciary, foreshadowing his refusal to tolerate some of the president’s most extreme contortions of the law. Stern tracks the chief justice’s evolution from staunch conservative to part-time centrist. Along the way, he details the term’s blockbusters and surprises, including an unlikely alliance between Justices Neil Gorsuch and Sonia Sotomayor on criminal justice, and an especially radical ruling on the death penalty that overturned decades of precedent. Stern’s account depicts a court sharply divided over its role in American democracy, with the man at its center striving to stay above the political fray without abandoning his conservative instincts.”
Section 6. AID PROHIBITED TO SECTARIAN SCHOOLS. (1) The legislature, counties, cities, towns, school districts, and public corporations shall not make any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination
In this podcast, we discuss a new case that the Supreme Court has agreed to hear, Espinoza v. Montana Department of Revenue, concerning a Montana law that created a tax credit scholarship program whose proceeds were directed, in part, to religious schools. The Montana Supreme Court held that the law violated Montana’s Constitution, which has a provision barring any aid to “sectarian” educational institutions. We discuss the historical background to the controversy, the Montana opinion, and the cert. petition. We consider some of the operative metaphors the Supreme Court has used to discuss these kinds of cases (“play in the joints”) and underlying federal constitutional issues and tensions involving neutrality and equality. Listen in!