A draft of a short paper for a recent symposium I participated in at Notre Dame Law School. Here’s the abstract:

A mystery of faith is a truth of religion that escapes human understanding. The mysteries of religion are not truths that human beings happen not to know, or truths that they could know with sufficient study and application, but instead truths that they cannot know in the nature of things. Religious mysteries tend to designate the unfathomable matters of religion, those that the merely human mind cannot grasp.

In this short paper, I suggest that “mysterizing” religion may change the stakes in some of the most controversial conflicts in law and religion. To mysterize (not a neologism, but an archaism) is to cultivate mystery about a subject, in the sense described above—to press the view that a certain subject or phenomenon is not merely unknown, but unknowable by human beings. That is what I propose to do for religion in American law, and what may well alter the landscape of the conflicts between advocates of religious liberty and the forces opposing it. Fortunately, I have had some help. The mysterization of religion seems already to be well under way in American constitutional law. It is a central feature of the Supreme Court’s current conception of religion.

The specific context I consider concerns the question whether the government may make public funds available to private religious schools—either directly or through mechanisms of independent, private choice—on condition that the schools accept and implement nondiscrimination rules regarding the sexual identity or conduct of their students and faculty. The mysterization of religion probably alters the legal landscape by rendering the claim that conditions concerning the admission or hiring of LGBTQ persons interfere with religious free exercise stronger than it otherwise would be. And the argument for mysterization itself derives strength from the Supreme Court’s own conception of religion as ineffable, unintelligible, and unevaluable, as well as from the Court’s recent ministerial exception cases.

I conclude by briefly reflecting on what the mysterization of religion may mean more generally for law and religion. It is not all good news for religion. In fact, upon closer inspection, it turns out that mystery in traditional religions, conceptualized as a partial, incomplete, or imperfect apprehension of the transcendent, is quite different than mystery in the contemporary legal understanding of religion as psychological, interior, personal unfathomability. Almost its opposite.

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.

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.

I’m pleased to announce that my new paper, Reconstructing Malice in the Law of Punitive Damages, will be published by the Journal of Tort Law next year. The paper is my first foray into tort law scholarship, though I have been teaching Torts for the last 3 years at St. John’s. Malice, in the common law of crime and tort, is a thorny subject with a complicated and ancient lineage. Indeed, there are interesting connections between law and religion, on the one hand, and notions of malice in the law, on the other. But malice’s legacy was questioned beginning in the 19th century with Holmes (and others including J.F. Stephen) and then repudiated more decisively in the work of 20th century tort law giants like William Prosser and criminal law giants like Herbert Wechsler.

This paper attempts to reconstruct a historically correct, conceptually coherent, and normatively compelling case for malice’s reintroduction into the law of punitive damages. It also speculates about the utility of this reconstructed account of malice in other fields, especially criminal law. Finally, though this paper does not approach this topic, it does suggest the possibility of reconstructivism as a broader theory of law and legal development, something about which I hope to write in the future. Here is the abstract.

Punitive damages present two related puzzles. One concerns their object. If they are punitive, their object is to punish tortfeasors. If they are damages, their object is to compensate tort victims. If they are both, as the Supreme Court has recently stated, the problem is to reconcile these different objects in applying them. A second puzzle involves their subject. Punitive damages are awarded for egregious wrongdoing. But the nature of that egregiousness is nebulous and contested, implicating many poorly understood terms. The two puzzles are connected, because the subject of punitive damages will inform their object. Once we know the type of wrongfulness that punitive damages deal with, we can understand better whether and how they are punishing, compensating, or both.

This Article reconstructs one of punitive damages’ central subjects: malice. In so doing, it clarifies one key object of punitive damages: to offer redress to a victim of cruelty. Malice is a ubiquitous textual element in the state law of punitive damages. But there has been little scholarly commentary about what malice means for punitive damages. Drawing from the common history of tort and criminal law, this Article identifies two core meanings of malice: a desire or motive to do wrong, and a disposition of callous indifference to the wrong inflicted. Though distinct, these meanings broadly coalesce in the concept of cruelty. The Article argues that this reconstructed account of the wrong of malice represents a powerful justification for awarding punitive damages. Malice as cruelty as a justification for punitive damages also fits within a broader view of tort law as redress for specific private wrongs. But malice as a subject of punitive damages clarifies and enriches this account of their object. A victim of a tort done with malice, and who is aware of it, has been wronged more gravely than a victim of a tort done without malice and is therefore entitled to greater redress.

I’m at Washington University in St. Louis today for a conference put together by Professor John Inazu on “The Religion Clauses.” I’ll be talking about my recent piece, First Amendment Traditionalism, which extends the arguments about traditionalism in constitutional interpretation that I first made in The Traditions of American Constitutional Law. If you happen to be in the area, please do come by and say hello, as the conference is free and open to the public.