Legal Spirits Episode 044: Traditionalism Rising

In this episode, Mark interviews Marc about his new article, “Traditionalism Rising,” on an important, emerging method of constitutional interpretation embraced by the Supreme Court across the domains of constitutional law, including in law and religion, and especially so in the most recent term. Marc explains some of the basics of the method, which emphasizes the endurance of political and cultural practices over time as presumptive determinants of constitutional meaning. The two discuss some of the reasons to adopt this approach to understanding the Constitution and several objections that might be made to it, considering a few responses. Constitutional law and interpretation is, and has always been, fraught with political controversy, and Marc and Mark think through some of the political valences of traditionalism to conclude the discussion. Listen in!

Legal Spirits Episode 043: The New Thoreaus

In this episode, Marc interviews Mark about his new article, “The New Thoreaus,” on the rise of the Nones and its impact on free-exercise law. Fifty years ago, in Wisconsin v. Yoder, the Supreme Court famously dismissed the idea that a solitary seeker–the Court gave the 19th Century Transcendentalist Henry David Thoreau as an example–could qualify as a “religion” for constitutional purposes. “Religion,” the Court explained, means a communal activity, not a purely personal quest. Mark argues that recent demographic changes in America have made this question an urgent one. Perhaps 66 million Americans today are unaffiliated believers–people who, like Thoreau, reject organized religion and follow their own, idiosyncratic spiritual paths–and more and more of them seek “religious” exemptions, including in the context of recent vaccine mandates. Mark examines some of these cases and argues that Yoder‘s dicta was basically correct: although religion cannot be an exclusively collective activity, the existence of a religious community is a crucial factor in the definition of religion for legal purposes. Listen in!

“Traditionalism Rising” at the Volokh Conspiracy This Week

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.

“Traditionalism Rising”

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.

The New Thoreaus

I’ve just posted a new draft essay, “The New Thoreaus,” to SSRN. The essay, which will appear in a forthcoming symposium in the Loyola University Chicago Law Journal, discusses the Rise of the Nones and argues that community is crucial to defining religion for legal purposes. Abstract below. Comments welcome!

Fifty years ago, in Wisconsin v. Yoder, the Supreme Court famously indicated that “religion” denotes a communal rather than a purely individual phenomenon. An organized group like the Amish would qualify as religious, the Court wrote, but a solitary seeker like the 19th Century Transcendentalist, Henry David Thoreau, would not. At the time, the question was mostly peripheral; hardly any Americans claimed to have their own, personal religions that would make it difficult for them to comply with civil law. In the intervening decades, though, American religion has changed. One-fifth of us—roughly 66 million people—now claim, like Thoreau, to follow our own, idiosyncratic spiritual paths. The New Thoreaus already have begun to appear in the cases, including recent vaccine mandate challenges, and courts will increasingly face the question whether purely idiosyncratic beliefs and practices qualify as religious for legal purposes. In this essay, I argue that Yoder’s insight was basically correct: the existence of a religious community is a crucial factor in the definition of religion. Religion cannot mean an exclusively communal phenomenon; a categorical rule would slight a long American tradition of respecting individual religious conscience and create difficult line-drawing problems. Nonetheless, the farther one gets from a religious community, the more idiosyncratic one’s spiritual path, the less plausible it is to claim that one’s beliefs and practices are religious, for legal purposes.

Weinberger on Church Autonomy: A Matter of Jurisdiction?

Our friend Lael Weinberger, who has just finished an Olin-Searle-Smith Fellowship at Harvard Law School and begun a clerkship with Justice Neil Gorsuch, has posted a new draft, Is Church Autonomy Jurisdictional?, on SSRN. The draft, prepared for a symposium last spring at Loyola University Chicago Law School, carefully analyzes the use of the word “jurisdictional” in discussions of church autonomy and shows that the term conveys a number of different meanings, only some of which are apposite. Very much worth reading! Here’s the abstract:

The First Amendment’s religion clauses create what courts have called church autonomy doctrine, protecting the internal self-governance of religious institutions. But courts are divided as to whether this doctrine is simply an affirmative defense for religious institutions or a jurisdictional limitation on courts’ ability to adjudicate. Scholars meanwhile have long debated whether church autonomy is jurisdictional at a higher level of abstraction, speaking of jurisdiction as a concept of authority rather than a technical term for civil procedure. This paper engages this multilevel debate with an argument for unbundling. First, it urges unbundling conceptual jurisdiction from judicial jurisdiction. Jurisdiction in the conceptual sense can be a helpful a way of talking about institutional authority relevant to church autonomy. But church autonomy is not properly jurisdictional for purposes of civil procedure. Second, this paper proposes unbundling the array of procedural issues that could be resolved under the label of jurisdiction. This paper argues that it is a mistake to try to use the term jurisdiction to solve the interesting problems. It is better to disaggregate the issues that sometimes come under the label of jurisdiction and instead consider them one at a time. The paper concludes by looking to another quasi-jurisdictional body of law—sovereign immunity—for clues as to how to handle issues such as interlocutory appeals, waiver, and forfeiture in the church autonomy space.

Law, Religion, and the Covid Crisis

I have a new draft on SSRN, “Law, Religion, and the Covid Crisis,” comparing how courts across the globe have approached restrictions on public worship and exploring what the cases reveal about social divisions, especially in the United States. Here’s the abstract:

This essay explores judicial responses to legal restrictions on worship during the COVID pandemic and draws two lessons, one comparative and one relating specifically to US law. As a comparative matter, courts across the globe have approached the problem in essentially the same way, through intuition and balancing. This has been the case regardless of what formal test applies, the proportionality test outside the US, which expressly calls for judges to weigh the relative costs and benefits of a restriction, or the Employment Division v. Smith test inside the US, which rejects judicial line-drawing and balancing in favor of predictable results. Judges have reached different conclusions about the legality of restrictions, of course, but doctrinal nuances have made little apparent difference. With respect to the US, specifically, the pandemic has revealed deep divisions about religion and religious freedom, among other things—divisions that have inevitably influenced judicial attitudes toward restrictions on worship. The COVID crisis has revealed a cultural and political rift that makes consensual resolution of conflicts over religious freedom problematic, and perhaps impossible, even during a once-in-a-lifetime pandemic.

The essay will appear in the forthcoming volume of the Journal of Law and Religion. Comments welcome!

“Reconstructing Malice in the Law of Punitive Damages”

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.

Conference at Washington University on the Religion Clauses

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.

Christianity and Liberalism before the Fall

Nathan Chapman (Georgia) has posted a very interesting new paper on SSRN, Forgotten Federal-Missionary Partnerships: New Light on the Establishment Clause. His paper relates to a specific, historical example of federal funding for religious schools, but has implications for much broader Establishment Clause issues as well.

Chapman explains that, for much of the 19th Century, the federal government gave significant financial support to Christian missionary schools that educated Native Americans. Even more: virtually no one saw the financial support of these schools as an Establishment Clause problem. Evidently, Americans at the time–or at least the elites whose opinions mattered–did not perceive public support for instruction in Christian morality as a constitutional issue. That is so, Chapman argues, because elites at the time did not perceive basic Christian morality as sectarian and threatening in the way their counterparts do today. Borrowing from sociologist Charles Taylor, Chapman writes that “elite white Americans shared a ‘social imaginary’—or social paradigm—of ‘civilization’ that merged education, republicanism, and at least a modicum of Christianity.”

This is an extremely important insight for understanding American culture, and, therefore, American law. Historically, Americans have seen Christianity, especially its Protestant iteration, as consistent with liberalism and progress. Writing in the 1830s, Tocqueville observed that in the Old World, everyone understood that Christianity and liberty were rivals; but Americans had so completely run the two together in their minds that it was impossible for them to conceive of the one without the other. The conflict between Christianity and liberty that informs today’s culture wars simply did not exist for most of our history. As a consequence, the issues that preoccupy us today had little salience.

Of course, things are very different now. Maybe something went wrong, or maybe, as Patrick Deneen argues, the conflict was always there, waiting to hatch out. Anyhow, American elites today, especially legal elites, do not see Christianity and liberty as natural allies. This makes “translating” (Chapman’s term) the nineteenth-century practice into contemporary constitutional law rather tricky–even assuming translation is appropriate. The Establishment Clause was fashioned in a very different culture from our own, one that assumed a harmonious relationship between revelation and reason and that little relied on law to mediate conflicts between them. That is no longer the case, and the implications for our law have yet to be worked out.