The Secular Prophet of American Law

I’ve always thought that the activity we now call “constitutional theory” began with the work of James Bradley Thayer. For centuries, it was a common view among Western legal thinkers that the law was a manifestation of something that was greater than ordinary legislation or judicial decisions. Judicial decisions, in particular, were not law, but were thought of as evidence of the law. Today, by contrast, it is hard to imagine leading scholars or judges explaining law in anything like these terms. Just when the change happened is impossible to pinpoint, but Oliver Wendell Holmes, Jr. was certainly an important figure in the transition. Holmes mocked the classical view that law is some sort of “brooding omnipresence in the sky,” a view he rejected as “fallacy and illusion.” Instead, Holmes proclaimed that law is a purely human affair. The Legal Realists that followed Holmes believed that what needed to be done was to “redefine supernatural concepts in natural terms.”

That’s why Thayer is so pivotal. He saw all of this coming in the views of legal academics and thinkers of the time. So he tried with the first “theory” to head it off. And so the rise of constitutional theory coincides precisely with the fall of the classical conception of law and the rise of this new, realist, conception of law. When it comes to the Constitution, what takes the place of the old, classical view is, in fact, theory. Theory is what ostensibly preserves “the law” as something separate and apart from raw policy preferences, or from raw partisan politics. Theory purports to provide a new account and defense of law’s essential nature.

At any rate, here is what looks like an important and very insightful new book on Thayer, which interestingly uses religious language right in its title to describe him: The Prophet of Harvard Law: James Bradley Thayer and His Legal Legacy (University of Kansas Press), by Andrew Porwancher, Austin Coffey, Taylor Jipp, and Jake Mazeitis.

Amid the halls of Harvard Law, a professor of legend, James Bradley Thayer, shaped generations of students from 1874 to 1902. His devoted protégés included future Supreme Court justices, appellate judges, and law school deans. The legal giants of the Progressive Era—Holmes, Brandeis, and Hand, to name only a few——came under Thayer’s tutelage in their formative years.

He imparted to his pupils a novel jurisprudence, attuned to modern realities, that would become known as legal realism. Thayer’s students learned to confront with candor the fallibility of the bench and the uncertainty of the law. Most of all, he instilled in them an abiding faith that appointed judges must entrust elected lawmakers to remedy their own mistakes if America’s experiment in self-government is to survive.

In the eyes of his loyal disciples, Thayer was no mere professor; he was a prophet bequeathing to them sacred truths. His followers eventually came to preside over their own courtrooms and classrooms, and from these privileged perches they remade the law in Thayer’s image. Thanks to their efforts, Thayer’s insights are now commonplace truisms.

The Prophet of Harvard Law draws from untouched archival sources to reveal the origins of the legal world we inhabit today. It is a story of ideas and people in equal measure. Long before judges don their robes or scholars their gowns, they are mere law students on the cusp of adulthood. At that pivotal phase, a professor can make a mark that endures forever after. Thayer’s life and legacy testify to the profound role of mentorship in shaping the course of legal history.

Christianity’s American Fate?

I have to confess the publisher’s description of a new book from Princeton on American Christianity lost me at the get-go. “How did American Christianity become synonymous with conservative white evangelicalism,” the blurb for Christianity’s American Fate by Berkeley historian David Hollinger earnestly asks? I guess such a framing attracts an academic audience, always on the lookout for reassurance about its priors. But it’s misleading. First, of course, American Christianity comprises a lot more than Evangelicals. Second, although the majority of American Evangelicals are white, the most interesting fact about them is that they are becoming much less so over time. A PRRI study a few years ago revealed that one third of Evangelicals are members of racial and ethnic minorities. Among younger Evangelicals, the transformation is even more pronounced. About half of Evangelicals below the age of 30 are minorities. “PRRI found that ’22 percent of young evangelical Protestants are Black, 18 percent are Hispanic, and 9 percent identify as some other race or mixed race.'” The short answer to the question, how did American Christianity become synonymous with conservative white evangelicalism is, it’s not.

Readers of the book can judge for themselves. The publisher’s full description follows:

How did American Christianity become synonymous with conservative white evangelicalism? This sweeping work by a leading historian of modern America traces the rise of the evangelical movement and the decline of mainline Protestantism’s influence on American life. In Christianity’s American Fate, David Hollinger shows how the Protestant establishment, adopting progressive ideas about race, gender, sexuality, empire, and divinity, liberalized too quickly for some and not quickly enough for others. After 1960, mainline Protestantism lost members from both camps—conservatives to evangelicalism and progressives to secular activism. A Protestant evangelicalism that was comfortable with patriarchy and white supremacy soon became the country’s dominant Christian cultural force.

Hollinger explains the origins of what he calls Protestantism’s “two-party system” in the United States, finding its roots in America’s religious culture of dissent, as established by seventeenth-century colonists who broke away from Europe’s religious traditions; the constitutional separation of church and state, which enabled religious diversity; and the constant influx of immigrants, who found solidarity in churches. Hollinger argues that the United States became not only overwhelmingly Protestant but Protestant on steroids. By the 1960s, Jews and other non-Christians had diversified the nation ethnoreligiously, inspiring more inclusive notions of community. But by embracing a socially diverse and scientifically engaged modernity, Hollinger tells us, ecumenical Protestants also set the terms by which evangelicals became reactionary.

Secularism’s Equation of Sincerity With Religiosity

In one of the critical free exercise inquiries, courts are supposed to evaluate whether a religious claimant is “sincere” about his or her belief. Anything more than a pro forma inquiry into sincerity, however, is thought to be problematic. Nevertheless, an inquiry into the claimant’s religious sincerity seems to be one of the very few things courts can actually explore in evaluating free exercise claims.

But why is this? Why reduce religiosity as a legal matter to sincerity alone? A recent book suggests that it is characteristic of secular societies to deem sincerity as somehow at the core of religiosity. The book is Sincerely Held: American Secularism and Its Believers, by Charles McCrary (University of Chicago Press).

“Sincerely held religious belief” is now a common phrase in discussions of American religious freedom, from opinions handed down by the US Supreme Court to local controversies. The “sincerity test” of religious belief has become a cornerstone of US jurisprudence, framing what counts as legitimate grounds for First Amendment claims in the eyes of the law. In Sincerely Held, Charles McCrary provides an original account of how sincerely held religious belief became the primary standard for determining what legally counts as authentic religion.
 
McCrary skillfully traces the interlocking histories of American sincerity, religion, and secularism starting in the mid-nineteenth century. He analyzes a diverse archive, including Herman Melville’s novel The Confidence-Man, vice-suppressing police, Spiritualist women accused of being fortune-tellers, eclectic conscientious objectors, secularization theorists, Black revolutionaries, and anti-LGBTQ litigants. Across this historyMcCrary reveals how sincerity and sincerely held religious belief developed as technologies of secular governance, determining what does and doesn’t entitle a person to receive protections from the state.
 
This fresh analysis of secularism in the United States invites further reflection on the role of sincerity in public life and religious studies scholarship, asking why sincerity has come to matter so much in a supposedly “post-truth” era.

The Tudors

Love them or hate them, there’s no denying that the Tudor Family had an outsized impact on church and state in the West. A current exhibit at the Metropolitan Museum of Art in New York explores Tudor politics and personalities–as well as the dynasty’s artistic legacy. The Yale University Press has released a companion volume, The Tudors: Art and Majesty in Renaissance England by Met curators Elizabeth Cleland and Adam Eaker. The publisher’s description follows:

A fascinating new look at the artistic legacy of the Tudors, revealing the dynasty’s influence on the arts in Renaissance England and beyond

Ruling successively from 1485 through 1603, the five Tudor monarchs changed England indelibly, using the visual arts to both legitimize and glorify their tumultuous rule—from Henry VII’s bloody rise to power, through Henry VIII’s breach with the Roman Catholic Church, to the reign of the “virgin queen” Elizabeth I. With incisive scholarship and sumptuous new photography, the book explores the politics and personalities of the Tudors, and how they used art in their diplomacy at home and abroad.

Tudor courts were truly cosmopolitan, attracting artists and artisans from across Europe, including Hans Holbein the Younger (1497/8–1543), Jean Clouet (ca. 1485–1540), and Benedetto da Rovezzano (1474–1552). At the same time, the Tudors nurtured local talent such as Isaac Oliver (ca. 1565–1617) and Nicholas Hilliard (ca. 1547–1619) and gave rise to a distinctly English aesthetic that now defines the visual legacy of the dynasty. This book reveals the true history behind a family that has long captured the public imagination, bringing to life the extravagant and politically precarious world of the Tudors through the exquisite paintings, lush textiles, gleaming metalwork, and countless luxury objects that adorned their spectacular courts.

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!

An Intellectual History of Modern Legal Conservatism

The historian Johnathan O’Neill is the author of one of the best treatments of the history of originalism in law and politics in the 20th century. Here he is with a new, somewhat broader book on similar themes that looks more like an intellectual history and well worth picking up: Conservative Thought and American Constitutionalism Since the New Deal (Johns Hopkins Press).

The New Deal fundamentally changed the institutions of American constitutional government and, in turn, the relationship of Americans to their government. Johnathan O’Neill’s Conservative Thought and American Constitutionalism since the New Deal examines how various types of conservative thinkers responded to this significant turning point in the second half of the twentieth century.

O’Neill identifies four fundamental transformations engendered by the New Deal: the rise of the administrative state, the erosion of federalism, the ascendance of the modern presidency, and the development of modern judicial review. He then considers how various schools of conservative thought (traditionalists, neoconservatives, libertarians, Straussians) responded to these major changes in American politics and culture. Conservatives frequently argued among themselves, and their responses to the New Deal ranged from adaptation to condemnation to political mobilization.

Ultimately, the New Deal pulled American governance and society permanently leftward. Although some of the New Deal’s liberal gains have been eroded, a true conservative counterrevolution was never, O’Neill argues, a realistic possibility. He concludes with a plea for conservative thinkers to seriously reconsider the role of Congress—a body that is relatively ignored by conservative intellectuals in favor of the courts and the presidency—in America’s constitutional order. Conservative Thought and American Constitutionalism since the New Deal explores the scope and significance of conservative constitutional analysis amid the broader field of American political thought.

“Stealing My Religion”

I’ve been thinking about the Rise of the Nones, particularly, the significant percentage of Americans who are “unaffiliated believers.” Something like 20% of us, according to surveys, claim to have non-institutional religious commitments that draw from many different sources. This is an old story in America, going back at least as far as Thoreau, who drew heavily from Hinduism and Zoroastrianism. (About Christianity, he was much less enthusiastic). But eclectic, expressive individualism has now gone mainstream. There are a lot more Thoreaus than there used to be.

Not everyone loves the new eclecticism–including, especially, practitioners of the old traditions themselves, who sometimes feel wronged. For example, can one just “do” yoga, without accepting the spiritual commitments on which yoga is based? Is treating yoga as an exercise regimen an affront to Hindus for whom yoga has transcendental meaning? An interesting-looking new book from Harvard, Stealing My Religion, addresses these questions. The author is Northeastern religion professor Liz Bucar. Here’s the publisher’s description:

From sneaker ads and the “solidarity hijab” to yoga classes and secular hikes along the Camino de Santiago pilgrimage route, the essential guide to the murky ethics of religious appropriation.

We think we know cultural appropriation when we see it. Blackface or Native American headdresses as Halloween costumes—these clearly give offense. But what about Cardi B posing as the Hindu goddess Durga in a Reebok ad, AA’s twelve-step invocation of God, or the earnest namaste you utter at the end of yoga class?

Liz Bucar unpacks the ethical dilemmas of a messy form of cultural appropriation: the borrowing of religious doctrines, rituals, and dress for political, economic, and therapeutic reasons. Does borrowing from another’s religion harm believers? Who can consent to such borrowings? Bucar sees religion as an especially vexing arena for appropriation debates because faiths overlap and imitate each other and because diversity within religious groups scrambles our sense of who is an insider and who is not. Indeed, if we are to understand why some appropriations are insulting and others benign, we have to ask difficult philosophical questions about what religions really are.

Stealing My Religion guides us through three revealing case studies—the hijab as a feminist signal of Muslim allyship, a study abroad “pilgrimage” on the Camino de Santiago, and the commodification of yoga in the West. We see why the Vatican can’t grant Rihanna permission to dress up as the pope, yet it’s still okay to roll out our yoga mats. Reflecting on her own missteps, Bucar comes to a surprising conclusion: the way to avoid religious appropriation isn’t to borrow less but to borrow more—to become deeply invested in learning the roots and diverse meanings of our enthusiasms.

Eliot’s Prose Works

“We can never, I mean wholly, explain the practical world from a theoretical point of view, because this world is what it is by reason of the practical point of view, and the world we try to explain is a world set out upon a table — there!”

Knowledge and Experience in the Philosophy of F.H. Bradley

“Some one said: ‘The dead writers are remote from us because we know so much more than they did.’ Precisely, and they are that which we know.”

Tradition and the Individual Talent

Just a couple of lines from two of T.S. Eliot’s essays, the second comparatively well-known and the first less so. Eliot’s prose work has been an important influence in some recent law and religion scholarship, including Steve Smith’s “Pagans and Christians in the City,” as well as in some recent reflections on politics and populism. It has also provoked forceful reactions and objections. Eliot’s prose, however, has been less carefully studied than his poems.

This new compilation in 8 volumes, therefore, is well worth looking at (I am celebrating a birthday soon, just in case anybody is thinking of giving me a $700 gift) and sure to stimulate many responses: The Complete Prose of T.S. Eliot: The Critical Edition (Johns Hopkins Press), edited by Ronald Schuchard.

This monumental eight-volume edition of modern literature brings together, for the first time in print, all of the vastly influential prose writings of Nobel laureate T. S. Eliot, the poet and dramatist whose theories and criticism shaped twentieth-century thought and literature around the world. This complete collection provides access to over 6,000 pages of Eliot’s nonfiction prose writings on literature, philosophy, religion, cultural theory, world politics, and other topics of urgent and enduring import. It includes all of the essays that he collected in his lifetime, but also more than 1,000 uncollected, unrecorded, or unpublished items, many of which were missing or inaccessible for decades. From the formative “Interpretation of Primitive Ritual” (1913), written in graduate school at Harvard, to the summative “To Criticize the Critic” (1961), the Complete Prose offers readers full access to the immense scope and variety of Eliot’s works in their biographical, historical, and cultural context.

The individual volumes have received the highest praise from prominent scholars: volume II won the Modernist Studies Association’s 2015 Book Prize for an Edition, Anthology, or Essay Collection, while volumes V and VI were jointly awarded the 2017 Prize for a Scholarly Edition by the Modern Language Association. They display “uniform excellence,” wrote the Awards Committee: “Their thorough textual introductions, sophisticated annotations merging intelligent commentary with brevity and completeness, make the volumes a pleasure to read… and enlarge our understanding of Eliot as the public intellectual at work.” Together with recent editions of the Poems, the eight volumes of Letters, and the sensational opening in 2020 of Eliot’s letters to Emily Hale, the Complete Prose brings us to the threshold of a new age for the study of Eliot and the modernist writers of his day.

The New Thoreaus: A Video of My Talk at UT Law

I had a wonderful time yesterday at the Bech-Loughlin First Amendment Center at the University of Texas Law School, where I spoke about my draft paper on the New Thoreaus. I enjoyed meeting some students before my talk, and the talk itself. Excellent questions and a lot of fun. My thanks again to Steve Collis and the folks at UT for having me. A video of the talk is available below:

A New Book on Salafism

Salafism is a movement within Islam that seeks to return to what it understands as the earliest, and therefore purest, expressions of Islamic law and practice, from the time of the first few generations of Muslim believers. In a sense, it can be seen as a kind of originalism, opposed to the more conventional Islamic law traditionalism that views the earliest expressions as mediated through the writings of succeeding legal scholars.

A new book from Stanford University Press, On Salafism: Concepts and Contexts, by scholar Azmi Bishara, argues that Salafism is best understood as a contemporary phenomenon based, not in early Islam, but in the current social and political context. Here is the publisher’s description:

On Salafism offers a compelling new understanding of this phenomenon, both its development and contemporary manifestations. Salafism became associated with fundamentalism when the 9/11 Commission used it to explain the terror attacks and has since been connected with the violence of the so-called Islamic State. With this book, Azmi Bishara critically deconstructs claims of continuity between early Islam and modern militancy and makes a counterargument: Salafism is a wholly modern construct informed by specific sociopolitical contexts.

Bishara offers a sophisticated account of various movements—such as Wahabbism and Hanbalism—frequently collapsed into simplistic understandings of Salafism. He distinguishes reformist from regressive Salafism, and examines patterns of modernization in the development of contemporary Islamic political movements and associations. In deconstructing the assumptions of linear continuity between traditional and contemporary movements, Bishara details various divergences in both doctrine and context of modern Salafisms, plural. On Salafism is a crucial read for those interested in Islamism, jihadism, and Middle East politics and history.