An Account of Originalism and Natural Law

I’ve been seeing an increasing number of natural law–or natural law-influenced–accounts of various legal disciplines. Something like a newly emerging applied natural law genre. There are property scholars that take a natural law view. There are scholars of legal interpretation strongly influenced by natural law views. There are constitutional scholars whose view of originalism depends upon a natural law view. And there are probably others writing in other fields that I am now forgetting.

Into the last category falls my friend and colleague at Princeton’s James Madison Program this spring, Professor Lee J. Strang. Here is his wonderful looking new book on originalism and natural law, Originalism’s Promise: A Natural Law Account of the American Constitution (Cambridge University Press).

“The foundation of the American legal system and democratic culture is its longstanding written Constitution. However, a contentious debate now exists between Originalists, who employ the Constitution’s original meaning, and Nonoriginalists, who argue for a living constitution interpretation. The first natural law justification for an originalist interpretation of the American Constitution, Originalism’s Promise presents an innovative foundation for originalism and a novel description of its character. Originalism’s Promise provides a deep, rich, and practical explanation of originalism, including the most-detailed originalist theory of precedent in the literature. Of interest to judges, scholars, and lawyers, Originalism’s Promise will help all Americans better understand their own Constitution and shows why their reverence for it, its Framers, and its legal system, is supported by sound reasons. Originalism’s Promise is a powerful contribution to the most important theory in constitutional interpretation.”

Essays on Christian Jurists in America

Here’s what looks like a must-read–a collection of essays on important Christian jurists in America, with entries for both well-known and lesser-known figures (some judges, some jurisprudes and scholars of law). Congratulations to some of our Center friends who are contributors (including one of our board members, Donald Drakeman)! The book is Great Christian Jurists in American History (Cambridge University Press), edited by two leading figures in this area, Daniel L. Dreisbach and Mark David Hall.

“From the early days of European settlement in North America, Christianity has had a profound impact on American law and culture. This volume profiles nineteen of America’s most influential Christian jurists from the early colonial era to the present day. Anyone interested in American legal history and jurisprudence, the role Christianity has played throughout the nation’s history, and the relationship between faith and law will enjoy this worthy and unique study. The jurists covered in this collection were pious men and women, but that does not mean they agreed on how faith should inform law. From Roger Williams and John Cotton to Antonin Scalia and Mary Ann Glendon, America’s great Christian jurists have brought their faith to bear on the practice of law in different ways and to different effects.”

On Our Insurmountable Divisions?

One cannot go more than a few days without seeing a new book that offers both the diagnosis and the solution to the increasing fragmentation and polarization of American civic and political life. But might the diagnosis part be so tricky, and the problems so deep-seated, that there may actually be no solution at all?

So seems to suggest a new and interesting book, One Nation, Two Realities: Dueling Facts in American Democracy (Oxford University Press), by political scientists Morgan Marietta and David C. Barker.

“The deep divides that define politics in the United States are not restricted to policy or even cultural differences anymore. Americans no longer agree on basic questions of fact. Is climate change real? Does racism still determine who gets ahead? Is sexual orientation innate? Do immigration and free trade help or hurt the economy? Does gun control reduce violence? Are false convictions common?

Employing several years of original survey data and experiments, Marietta and Barker reach a number of enlightening and provocative conclusions: dueling fact perceptions are not so much a product of hyper-partisanship or media propaganda as they are of simple value differences and deepening distrust of authorities. These duels foster social contempt, even in the workplace, and they warp the electorate. The educated — on both the right and the left — carry the biggest guns and are the quickest to draw. And finally, fact-checking and other proposed remedies don’t seem to holster too many weapons; they can even add bullets to the chamber. Marietta and Barker’s pessimistic conclusions will challenge idealistic reformers.”

Brague on Medieval Wisdom for the Modern Age

And speaking of prodigiously prolific authors, here is Rémi Brague’s first book authored in English–Curing Mad Truths: Medieval Wisdom for the Modern Age (University of Notre Dame Press).

“In his first book composed in English, Rémi Brague maintains that there is a fundamental problem with modernity: we no longer consider the created world and humanity as intrinsically valuable. Curing Mad Truths, based on a number of Brague’s lectures to English-speaking audiences, explores the idea that humanity must return to the Middle Ages. Not the Middle Ages of purported backwardness and barbarism, but rather a Middle Ages that understood creation—including human beings—as the product of an intelligent and benevolent God. The positive developments that have come about due to the modern project, be they health, knowledge, freedom, or peace, are not grounded in a rational project because human existence itself is no longer the good that it once was. Brague turns to our intellectual forebears of the medieval world to present a reasoned argument as to why humanity and civilizations are goods worth promoting and preserving.”

A Negative Treatment of Conformity (and a bunch of non-conforming questions)

It seems like only a few weeks ago (in fact, it was only a few weeks ago) that I was talking about a new book by Professor Cass Sunstein on the nature of “freedom.” Here is a new volume by Professor Sunstein on the perils of “conformity.” Yet some of what is in the blurb below raises questions, at least for me. What’s the difference between merely “conforming” as opposed to “suppressing” one’s own views about “what is true and what is right”? Don’t we suppress our own views about what is true and right in response to our social milieu and our sense about whether that milieu does, in fact, reflect “what is true and what is right”? And why would we think that dissent in the service of what we believe to be “true and right” would necessarily be socially beneficial? It might be, under some circumstances, I suppose. But not everyone’s sense of what is true and right might actually be socially beneficial. Under those circumstances, should’t we root for conformity? So many questions! I guess I’ll need to read the book to find out!

The book is Conformity: The Power of Social Influences (NYU Press), by Cass R. Sunstein.

“We live in an era of tribalism, polarization, and intense social division—separating people along lines of religion, political conviction, race, ethnicity, and sometimes gender.  How did this happen? In Conformity, Cass R. Sunstein argues that the key to making sense of living in this fractured world lies in understanding the idea of conformity—what it is and how it works—as well as the countervailing force of dissent.

An understanding of conformity sheds new light on many issues confronting us today: the role of social media, the rise of fake news, the growth of authoritarianism, the success of Donald Trump, the functions of free speech, debates over immigration and the Supreme Court, and much more.

Lacking information of our own and seeking the good opinion of others, we often follow the crowd, but Sunstein shows that when individuals suppress their own instincts about what is true and what is right, it can lead to significant social harm. While dissenters tend to be seen as selfish individualists, dissent is actually an important means of correcting the natural human tendency toward conformity and has enormous social benefits in reducing extremism, encouraging critical thinking, and protecting freedom itself.

Sunstein concludes that while much of the time it is in the individual’s interest to follow the crowd, it is in the social interest for individuals to say and do what they think is best.  A well-functioning democracy depends on it.”

The Non-Religious Aims of the Crusades

The history of the Crusades, like any other, is contested territory among historians. It isn’t my area, but the two very distinguished historians of the Crusades with whose work I am even somewhat familiar–Jonathan Riley-Smith and Christopher Tyerman–take different approaches to their subject. Professor Riley-Smith’s view focuses on the distinctively religious, and righteously religious, component of the Crusades–the Crusades not as occasion for plunder and subjugation but quite the opposite: as just defensive wars and religiously motivated pilgrimages that were often financially and personally ruinous to their undertakers. Professor Tyerman, while not at all ignoring the dimension of religious ideas, instead tends to focus more on the institutional dimensions of the Crusades and how these series of wars were motivated by and affected the non-religious civic and social spheres (Tyerman is also the author of an interesting study in the historiography of the Crusades). No doubt this description misses many important points of union and division.

Here is a new book on the Crusades by Professor Tyerman, The World of the Crusades (Yale University Press).

“Throughout the Middle Ages crusading was justified by religious ideology, but the resulting military campaigns were fueled by concrete objectives: land, resources, power, reputation. Crusaders amassed possessions of all sorts, from castles to reliquaries. Campaigns required material funds and equipment, while conquests produced bureaucracies, taxation, economic exploitation, and commercial regulation. Wealth sustained the Crusades while material objects, from weaponry and military technology to carpentry and shipping, conditioned them.
 
This lavishly illustrated volume considers the material trappings of crusading wars and the objects that memorialized them, in architecture, sculpture, jewelry, painting, and manuscripts. Christopher Tyerman’s incorporation of the physical and visual remains of crusading enriches our understanding of how the crusaders themselves articulated their mission, how they viewed their place in the world, and how they related to the cultures they derived from and preyed upon.”

“The Traditions of American Constitutional Law”

Here’s a new draft of an article I just posted to SSRN: The Traditions of American Constitutional Law (forthcoming in the Notre Dame Law Review). Of course, the piece has strong resonances with our Tradition Project here at the Center and is the product of thoughts that have been stimulated by the project over the last few years. But it’s a long time marinating. Comments most welcome on what is still very much a work in progress. Here is the abstract.

“This article identifies a new method of constitutional interpretation: the use of tradition to inform constitutional meaning. It studies what the Supreme Court means by invoking tradition and whether what it means remains constant across the document and over time. The task is worth pursuing inasmuch as traditional interpretation is pervasive, consistent, and recurrent across the Court’s constitutional doctrine. So, too, are criticisms of traditional interpretation. There are also more immediate reasons to study the role of tradition in constitutional interpretation. The Court’s two newest members, Justices Neil Gorsuch and Brett Kavanaugh, have indicated that tradition informs their understanding of constitutional meaning. The study of traditional interpretation seems all the more pressing to understand certain possible jurisprudential moves in the Court’s future.

The article concludes that when the Court interprets traditionally, it signals the presumptive influence of political, legal, or cultural practices of substantial duration for informing constitutional meaning. Traditional interpretation is thus constituted of three elements: (1) a focus on practices, rather than principles, as informing constitutional meaning; (2) a practice’s duration, understood as a composite of its age and continuity; and (3) a practice’s presumptive, but defeasible, interpretive influence. Traditional interpretation’s emphasis on practices that are given tangible form in a people’s lived experience suggests that it is preferable to speak about politically, legally, and culturally specific traditions rather than an abstracted concept of tradition. Hence, “the traditions of American constitutional law.” 

The article identifies traditional interpretation as its own method; shows its prevalence and methodological consistency across the domains of constitutional interpretation; isolates and examines its constituent elements, comparing them against other prominent interpretive approaches; and infers and explains the justifications of traditional interpretation from the doctrinal deposit. While there may be some irony about a claim of novelty in an article about tradition, what this article identifies as new is not the invocation of tradition as such, but the isolation of a recurrent and consistent method—traditional interpretation—adopted by the Court across its interpretive work. It aims to bring to light an overlooked and yet frequently used interpretive practice, and to understand its structure, situation, and purpose within the Court’s constitutional doctrine.”

The Politics of Federalism

In the oral argument on the Bladensburg Cross case last week, Justice Kavanaugh suggested a resolution to the controversy based on notions of federalism–that local municipalities or states could and should make decisions about issues like state-sponsored religious symbols on their own, without a uniform, general rule imposed by the Supreme Court. Certainly this was the approach to many controversies that currently go under the Establishment Clause banner before 1947. And, indeed, those who oppose such resolutions often argue that they have the effect of locking in place the status quo and are unfair and oppressive to minorities. That is, they have a conservative orientation–in the etymological sense at least. But recent events have shown that federalist politics may be progressive, too. They may be used to resist national policies that are more conservative than particular local or state governments might like, as much of the blue-state resistance to some of President Trump’s policies suggests. So there is reason to wonder whether federalism has any necessary political valence, or whether instead its valences depend upon the regnant national politics.

At any rate, this new book, Conservative Innovators: How States are Challenging Federal Power (University of Chicago Press), by Ben Merriman, adopts a historical view of these matters and recounts periods in which federalism was used by states to pursue policies that were more conservative than those desired at the national level (or, at least, at the presidential level).

“As American politics has become increasingly polarized, gridlock at the federal level has led to a greater reliance on state governments to get things done. But this arrangement depends a great deal on state cooperation, and not all state officials have chosen to cooperate. Some have opted for conflict with the federal government.

Conservative Innovators traces the activity of far-right conservatives in Kansas who have in the past decade used the powers of state-level offices to fight federal regulation on a range of topics from gun control to voting processes to Medicaid. Telling their story, Ben Merriman then expands the scope of the book to look at the tactics used by conservative state governments across the country to resist federal regulations, including coordinated lawsuits by state attorneys general, refusals to accept federal funds and spending mandates, and the creation of programs designed to restrict voting rights. Through this combination of state-initiated lawsuits and new administrative practices, these state officials weakened or halted major parts of the Obama Administration’s healthcare, environmental protection, and immigration agendas and eroded federal voting rights protections. Conservative Innovators argues that American federalism is entering a new, conflict-ridden era that will make state governments more important in American life than they have been at any time in the past century.”

A Theological History of “Law, Love, and Freedom”

Here’s an interesting new book that attempts to trace the transition from sacred to secular conceptions of law: Law, Love, and Freedom: From the Sacred to the Secular (Cambridge University Press), by Joshua Neoh.

“How does one lead a life of law, love, and freedom? This inquiry has very deep roots in the Judeo-Christian tradition. Indeed, the divergent answers to this inquiry mark the transition from Judeo to Christian. This book returns to those roots to trace the twists and turns that these ideas have taken as they move from the sacred to the secular. It relates our most important mode of social organization, law, to two of our most cherished values, love and freedom. In this book, Joshua Neoh sketches the moral vision that underlies our modern legal order and traces our secular legal ideas (constitutionalism versus anarchism) to their theological origins (monasticism versus antinomianism). Law, Love, and Freedom brings together a diverse cast of characters, including Paul and Luther, Augustine and Aquinas, monks and Gnostics, and constitutionalists and anarchists. This book is valuable to any lawyers, philosophers, theologians and historians, who are interested in law as a humanistic discipline.”

The Common Law as a System of Cultural Cohesion

Now here is one that looks really interesting. The common law is, of course, the system of judge-made (or, better, judge-found) law in which the law develops gradually, over time, and from the ground-up. That is, from its interaction with real cases over time. But that legal system can also have other non-strictly-legal effects. It can serve as a cohesive force if it is adopted by a series of individual state entities and develops over time among those entities. With enough time, it can even replace other systems of cultural and social cohesion and control. Including religion.

These dynamics of the common law in the American colonies are explored in this new book: E Pluribus Unum: How the Common Law Helped Unify and Liberate Colonial America, 1607-1776 (Oxford University Press), by William E. Nelson.

“The colonies that comprised pre-revolutionary America had thirteen legal systems and governments. Given their diversity, how did they evolve into a single nation? In E Pluribus Unum, the eminent legal historian William E. Nelson explains how this diverse array of legal orders gradually converged over time, laying the groundwork for the founding of the United States. 

From their inception, the colonies exercised a range of approaches to the law. For instance, while New England based its legal system around the word of God, Maryland followed the common law tradition, and New York adhered to Dutch law. Over time, though, the British crown standardized legal procedure in an effort to more uniformly and efficiently exert control over the Empire. But, while the common law emerged as the dominant system across the colonies, its effects were far from what English rulers had envisioned.

E Pluribus Unum highlights the political context in which the common law developed and how it influenced the United States Constitution. In practice, the triumph of the common law over competing approaches gave lawyers more authority than governing officials. By the end of the eighteenth century, many colonial legal professionals began to espouse constitutional ideology that would mature into the doctrine of judicial review. In turn, laypeople came to accept constitutional doctrine by the time of independence in 1776.

Ultimately, Nelson shows that the colonies’ gradual embrace of the common law was instrumental to the establishment of the United States. Not simply a masterful legal history of colonial America, Nelson’s magnum opus fundamentally reshapes our understanding of the sources of both the American Revolution and the Founding.”

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