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Legal Spirits 069: The Consent of the Governed

Source: National Archives

In this episode of Legal Spirits, Center Director Mark Movsesian talks with legal scholar Steven D. Smith about a question that goes to the heart of American law and politics: What happens when people stop believing in “the consent of the governed”? Drawing on Smith’s new paper, The Collapse of Consent, they explore how this once-powerful idea has shifted over time—from a principle rooted in natural law and divine authority to a secular fiction that’s becoming harder to sustain. In an increasingly polarized society, can America’s founding narrative still hold us together? A deep and thought-provoking conversation about legitimacy, identity, and the future of our legal order.

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Posted on by Mark Movsesian

On Tradition and Jack Balkin

At Law & Liberty today, I review Yale Law Professor Jack Balkin’s new book on tradition in constitutional law, Memory and Authority. Balkin makes some good points. He correctly describes how lawyers and judges use tradition in practice, and is right that the appeal of tradition–which is often multifarious and contested–depends on whether listeners feel connected to the past in the first place. But, I argue, Balkin’s definition of tradition is so elastic that it sometimes seems he isn’t talking about tradition at all:

For example, he praises Obergefell v. Hodges, which held that the Constitution confers a right to same-sex marriage, for its correct use of tradition. True, there is no “history of specific legal guarantees for same-sex marriage in American law.” But he argues that American tradition should be understood in a broader, more sensitive way, as a commitment to animating principles. The Obergefell Court correctly saw that the reasons why Americans historically have supported marriage generally obtained in the new context of same-sex marriage as well, and applied those reasons to reach a satisfactory present-day result. One can “alter or even reject existing practices,” he writes, “while being faithful to the country’s traditions of liberty.”

Now, one can praise or criticize the Court’s reasoning in Obergefell. But to paraphrase something Grant Gilmore said about Oliver Wendell Holmes in a different context, the magician who can traditionalize Obergefell can, the need arising, traditionalize anything. Tradition refers to concrete practices and accommodations that endure across time in a community, not abstractions like “liberty” or “equality” or “dignity” or “justice.” And one cannot plausibly claim that same-sex marriage is an American tradition in that sense. One must choose which traditions to follow and which to discard; that is the essence of modernity. But one cannot decide a case according to an abstract, indeterminate principle and call oneself a traditionalist. One may as well say that one is doing something new—that one is deciding a case based on one’s normative commitments and leave it at that.

You can read the review here.

Posted on by Mark Movsesian

Movsesian on Munoz

In the latest edition of the Journal of Law and Religion, I review Phillip Munoz’s excellent new book on the Religion Clauses, Religious Liberty and the American Founding. In the book, Phillip undertakes to show, to the extent one can, the original meaning of the First Amendment’s Free Exercise and Establishment Clauses. That showing is elusive, he says, since “free exercise” and “establishment” didn’t have a clear meaning at the time of the Framing. Nonetheless, he argues that one can construct plausible meanings for these terms by focusing on the Framers’ understanding of religious liberty as a natural right.

For my take on Phillip’s argument, please read my review essay, linked below. Here’s a sample:

Religious Liberty and the American Founding is a pleasure to read. Muñoz writes well and exceptionally clearly, and his book will appeal both to the educated public and to constitutional lawyers and scholars who spend their time immersed in doctrinal debates. He offers a wealth of detail on the drafting and ratification of the religion clauses. And the story he tells is a persuasive one. History is argument without end, but Muñoz’s basic point that the framers disagreed on the precise meaning of establishment and free exercise in the First Amendment but understood those terms in light of their background conception of religious liberty seems entirely plausible. Precisely because the framers could not agree on what the natural right of religious liberty itself entailed with respect to specific government policies, though, it is not clear how helpful a natural-rights construction of original meaning can be in resolving specific constitutional disputes.

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Posted on by Mark Movsesian

“My Faith in the Constitution is Whole”

As recently as a generation ago, America’s civil religion centered on the Constitution. A good example can be found in the speeches of progressive Congresswoman Barbara Jordan, famous as a member of the Watergate committee, who often referred to her “faith” in the Constitution as the guiding principle of her public life. Times change; it’s hard to imagine progressive politicians referring to the Constitution in such an uncomplicatedly affirmative way today. Readers can decide for themselves why that is so. The book is “My Faith in the Constitution is Whole”: Barbara Jordan and the Politics of Scripture, by Robin L. Owens (Mount Saint Mary’s University in Los Angeles). The publisher is the Georgetown University Press. Here’s the publisher’s description:

US Congresswoman Barbara Jordan is well-known as an interpreter and defender of the Constitution, particularly through her landmark speech during Richard Nixon’s 1974 impeachment hearings. However, before she developed faith in the Constitution, Jordan had faith in Christianity. In “My Faith in the Constitution is Whole”: Barbara Jordan and the Politics of Scripture, Robin L. Owens shows how Jordan turned her religious faith and her faith in the Constitution into a powerful civil religious expression of her social activism.

Owens begins by examining the lives and work of the nineteenth-century Black female orator-activists Maria W. Stewart and Anna Julia Cooper. Stewart and Cooper fought for emancipation and women’s rights by “scripturalizing,” or using religious scriptures to engage in political debate. Owens then demonstrates how Jordan built upon this tradition by treating the Constitution as an American “scripture” to advocate for racial justice and gender equality. Case studies of key speeches throughout Jordan’s career show how she quoted the Constitution and other founding documents as sacred texts, used them as sociolinguistic resources, and employed a discursive rhetorical strategy of indirection known as “signifying on scriptures.”

Jordan’s particular use of the Constitution—deeply connected with her background and religious, racial, and gender identity—represents the agency and power reflected in her speeches. Jordan’s strategies also illustrate a broader phenomenon of scripturalization outside of institutional religion and its rhetorical and interpretive possibilities.

Posted on by Mark Movsesian

Miller, “The Character Gap”

9780190264222If men were angels, no government would be necessary. Madison’s famous observation from The Federalist captures the Framers’ unromantic view of human nature. Given the very obvious flaws in human character, they thought, it would be unwise for a state to depend on citizens’ moral progress. In fact, as the twentieth-century liberal political theorist Richard Hofstadter once observed, with frustration, the Framers had a Calvinist outlook that stubbornly rejected any idea of human perfectibility: they were quite sure human nature was weak and would never change. Much safer, they thought, for the state to contain checks on ambition, treachery, folly, and pride, which were bound to assert themselves in time, no matter what people’s better intentions.

A new book from Oxford University Press, The Character Gap: How Good Are We?, by Wake Forest philosophy professor Christian Miller, shows the Framers were more or less correct about human nature. We really are, in the author’s words, “a mixed bag”: not altogether terrible, but not so great, either. The Framers were right to design our institutions as they did. Whether those institutions can survive over the long run remains to be seen. Here’s the description of the book from the Oxford website:

We like to think of ourselves, our friends, and our families as decent people. We may not be saints, but we are still honest, relatively kind, and mostly trustworthy. Miller argues here that we are badly mistaken in thinking this. Hundreds of recent studies in psychology tell a different story: that we all have serious character flaws that prevent us from being as good as we think we are – and that we do not even recognize that these flaws exist. But neither are most of us cruel or dishonest. Instead, Miller argues, we are a mixed bag. On the one hand, most of us in a group of bystanders will do nothing as someone cries out for help in an emergency. Yet it is also true that there will be many times when we will selflessly come to the aid of a complete stranger – and resist the urge to lie, cheat, or steal even if we could get away with it. Much depends on cues in our social environment. Miller uses this recent psychological literature to explain what the notion of “character” really means today, and how we can use this new understanding to develop a character better in sync with the kind of people we want to be.

Posted on by Mark Movsesian

Ryerson, “John Adams’s Republic”

I wonder it it’s fair any longer to refer to John Adams as a forgotten founder. His stock has risen among American historians in the past 20 years or so. He even got an HBO mini-series–though, so far, no Broadway musical. In law and religion circles, Adams most famous for his observation that the US Constitution “was made only for a moral and religious people” and “is wholly inadequate to the government of any other.” Whether or not one agrees with Adams on that, his contributions to American constitutional theory are increasingly acknowledged.

This past year, the Johns Hopkins University Press published a new study of Adams’s political thought, John Adams’s Republic: The One, the Few and the Many, by historian Richard Alan Ryerson. The publisher’s description follows:

9781421419220Scholars have examined John Adams’s writings and beliefs for generations, but no one has brought such impressive credentials to the task as Richard Alan Ryerson in John Adams’s Republic. The editor-in-chief of the Massachusetts Historical Society’s Adams Papers project for nearly two decades, Ryerson offers readers of this magisterial book a fresh, firmly grounded account of Adams’s political thought and its development.

Of all the founding fathers, Ryerson argues, John Adams may have worried the most about the problem of social jealousy and political conflict in the new republic. Ryerson explains how these concerns, coupled with Adams’s concept of executive authority and his fear of aristocracy, deeply influenced his political mindset. He weaves together a close analysis of Adams’s public writings, a comprehensive chronological narrative beginning in the 1760s, and an exploration of the second president’s private diary, manuscript autobiography, and personal and family letters, revealing Adams’s most intimate political thoughts across six decades.

How, Adams asked, could a self-governing country counter the natural power and influence of wealthy elites and their friends in government? Ryerson argues that he came to believe a strong executive could hold at bay the aristocratic forces that posed the most serious dangers to a republican society. The first study ever published to closely examine all of Adams’s political writings, from his youth to his long retirement,John Adams’s Republic should appeal to everyone who seeks to know more about America’s first major political theorist.

Posted on by Christina Vlahos

Shiffrin, “What’s Wrong with the First Amendment?”

In November, Cambridge University Press will release “What’s Wrong with the First Amendment?” by Steven Shiffrin (Cornell University).  The publisher’s description follows:

What is Wrong with the First Amendment? argues that the US love affair with the First Amendment has mutated into free speech idolatry. Free speech has been placed on soWhat's Wrong with the First Amendment high a pedestal that it is almost automatically privileged over privacy, fair trials, equality and public health, even protecting depictions of animal cruelty and violent video games sold to children. At the same time, dissent is unduly stifled and religious minorities are burdened. The First Amendment benefits the powerful at the expense of the vulnerable. By contrast, other Western democracies provide more reasonable accommodations between free speech and other values though their protections of dissent, and religious minorities are also inadequate. Professor Steven H. Shiffrin argues that US free speech extremism is not the product of broad cultural factors, but rather political ideologies developed after the 1950s. He shows that conservatives and liberals have arrived at similar conclusions for different political reasons.

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Waltman, “Congress, the Supreme Court, and Religious Liberty”

This June, Palgrave MacMillan will publish Congress, the Supreme Court, and Religious Liberty: The Case of City of Boerne v. Flores by Jerold Waltman (Baylor University).  The publisher’s description follows.Waltman

In the landmark case City of Boerne v. Flores, the Supreme Court struck down a major federal statute – the Religious Freedom Restoration Act of 1993. This decision raised questions not only about religious freedom in America, but also about federalism and separation of powers. Using the narrative framework of a tense dispute that divided a small Texas town, Waltman offers the first book-length analysis of the constitutional jurisprudence involved in the passage of the act. Congress, the Supreme Court, and Religious Liberty shows how this case and others like it stimulated and advanced an intense legal debate still ongoing today: Can and should the Supreme Court be the exclusive interpreter of the Constitution?

Posted on by Marc O. DeGirolami · 1 Comment

Constitutions as Establishments

I’ve been thinking a little bit about the difference between establishments and disestablishments of religion.  Constitutions serve several functions, but for this post, I’m interested in one in particular: to entrench the idea that there is a law above the state’s law — a law that cannot be changed by ordinary legislation.  Could one say this about established religions in constitutional states?  The argument would be that established religions in constitutional states place the constitutional state above its ordinary law, and they thereby control and restrain (the reach of) ordinary law.  If the claim works, then as a functional matter, one might think of the Constitution as an establishment of religion.  The Constitution — and, even more specifically, the First Amendment — is our establishment.  It enshrines limits on the power of government, and in the case of the Free Exercise Clause, it can even subordinate the ordinary acts of government to higher law.  And the First Amendment is an establishment inasmuch as it incorporates certain relationships between the state and religion right into the fabric of the governmental structure — relationships which it then fixes and removes from the purview of ordinary law.  The difference between constitutional states with establishments of religions and those without them is that in the former, God or the gods establish the state, while in the latter, people do.  But in both cases, constitutions ‘establish’ the (for lack of a better term) sacredness of the state and cement its position above ordinary law.  And so, from this perspective, the opposite of establishment is not so much disestablishment as tyranny.

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Bennett, Traditional African Religions in South African Law

Traditional African ReligionsThis past November, Juta – Academic published Traditional African Religions in South African Law by Tom Bennett (University of Cape Town). The publisher’s description follows.

Traditional African beliefs, together with African cultural traditions, are enjoying a new-found respect in South Africa, due in large part to the advent of the country’s democratic constitution.  In fact, a large majority of the South African population adheres to some form of traditional belief, often in combination with observance of other religions.  Even so, the traditional faiths are poorly understood and, in spite of constitutional guarantees, receive far from equal treatment, a situation quite at odds with the country’s commitment to equality and religious and cultural diversity.

While there are numerous works on the subject of religion in Africa, there are no works on traditional African religions and their legal implications.  The issue is nevertheless of serious political and legal concern in South Africa, since it raises diverse questions involving freedom of religion, the equal treatment of religions, traditional healing, witchcraft, animal sacrifice, circumcision, marriage and burial.

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