Kleidosty, “The Concert of Civilizations”

In July, Ashgate released “The Concert of Civilizations: The Common Roots of Western and Islamic Constitutionalism,” by Jeremy Kleidosty (University of Jyväskylä, Finland).  The publisher’s description follows:

Are Western and Islamic political and constitutional ideas truly predestined for civilizational clash? In order to understand this controversy The Concert of Civilizations begins by deriving and redefining a definition of constitutionalism that is suitable for comparative, cross-cultural analysis. The rule of law, reflection of national character, and the clear delineation and limitation of governmental power are used as lenses through which thinkers like Cicero, Montesquieu, and the authors of The Federalist Papers can be read alongside al-Farabi, ibn Khaldun, and the Ottoman Tanzimat decrees. Bridging the civilizational divide is a chapter comparing the Magna Carta with Muhammad’sConstitution of Medina, as both documents can be seen as foundational within their traditions. For the first time in political theory, this text also provides a sustained, detailed analysis of Khayr al-Din al-Tunisi’s book The Surest Path, which explains his fusion of Muslim and Western ideas in his writing of Tunisia’s first modern constitution, which is also the first constitution for a majority-Muslim state. Finally, the book discusses the Arab Spring through a brief overview of the revolutions in Egypt, Libya, and Tunisia, and offers some early thoughts about Tunisia’s uniquely successful revolution.

Green, “Inventing a Christian America: The Myth of the Religious Founding”

In July, Oxford University Press will release “Inventing a Christian America: The Myth of the Religious Founding” by Steven K. Green (Williamette University, College of Law). The publisher’s description follows:

Among the most enduring themes in American history is the idea that the United States was founded as a Christian nation. A pervasive narrative ineverything from school textbooks to political commentary, it is central to
the way in which many Americans perceive the historical legacy of their nation. Yet, as Steven K. Green shows in this illuminating new book, it is little more than a myth.

In Inventing a Christian America, Green, a leading historian of religion and politics, explores the historical record that is purported to support the popular belief in America’s religious founding and status as a Christian nation. He demonstrates that, like all myths, these claims are based on historical “facts” that have been colored by the interpretive narratives that have been imposed upon them. In tracing the evolution of these claims and the evidence levied in support of them from the founding of the New England colonies, through the American Revolution, and to the present day, he investigates how they became leading narratives in the country’s collective identity. Three critical moments in American history shaped and continue to drive the myth of a Christian America: the Puritan founding of New England, the American Revolution and the forging of a new nation, and the early years of the nineteenth century, when a second generation of Americans sought to redefine and reconcile the memory of the founding to match their religious and patriotic aspirations. Seeking to shed light not only on the veracity of these ideas but on the reasons they endure, Green ultimately shows that the notion of America’s religious founding is a myth not merely in the colloquial sense, but also in a deeper sense, as a shared story that gives deeper meaning to our collective national identity.

Offering a fresh look at one of the most common and contested claims in American history, Inventing a Christian America is an enlightening read for anyone interested in the story of-and the debate over-America’s founding.

Common Law Constitutionalism: The Meaning of Establishment Circa 1800

In this post, I speculated about the possibility that the meaning of “establishment” might be illuminated by the English experience of the term before the Constitution’s drafting. The idea would be to understand “establishment” not by reference to a fixed meaning traceable to the founding, but instead by reference to a general, but not limitless, range of meanings in use as a matter of the common law experience antedating the Constitution. That range might have a core and a periphery, and while the periphery, it is true, might change over time, any changes would be very gradual and always intimately connected with the historical common law meanings of establishment.

Our Center board member, Don Drakeman, helpfully points me to a different kind of common law evidence–uses of the term establishment in state courts after ratification of the Constitution. He argues that a shift was occurring in the meaning of the term during this period: from a narrow meaning limited to what Thomas Curry has called a meaning “modeled on the Anglican establishment in England,” to a broader meaning covering the issue of general assessments for funding churches. The former meaning would suggest a “sect preference” approach to the issue of establishment, while the latter would not.

In his book, Church, State, and Original Intent (at pages 216-229), Don describes the different post-First Amendment views in Massachusetts and New Hampshire circa 1800 about the meaning of establishment as expressed in three court cases—Avery v. Tyringham (1807), Barnes v. Falmouth (1810), and Muzzy v. Wilkins (1803).

Tyringham concerned Article III of the 1780 Massachusetts Constitution, the preamble of which at that time stated that “the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion, and morality; and [that] these cannot generally be diffused through a community, but by the institution of the public worship of God, and of public instructions in piety, religion and morality.” Based on that rationale, the Massachusetts Constitution goes on to authorize towns “to make suitable provision, at their own expense, for the institution of the public worship of GOD, and for the support and maintenance of public Protestant teachers of piety, religion and morality.” But Article III also provided that “no subordination of any one sect or denomination to another shall ever be established by law.” The opinion of Justice Theodore Sedgwick (who also served as a member of the First Congress that adopted the Establishment Clause) concluded that in these “strong and energetic” provisions “the religion of Protestant Christianity is established. Liberty of conscience is secured.” (emphasis in original) That interpretation suggests that the sort of explicit public support for Protestant Christianity contemplated by the Massachusetts Constitution does constitute an establishment, even though Massachusetts never had an expressly authorized or designated official church establishment.

In a later Massachusetts case, Barnes v. Falmouth (1810), Justice Theophilus Parsons considered whether the minister of an unincorporated church could share in taxes raised under Article III. Justice Parsons wrote that the case provided an occasion to “consider the motives which induced this people to introduce into the constitution a religious establishment, the nature of the establishment introduced, and the rights and privileges it secured to the people, and to their teachers.” Here is Don’s description of the opinion:

According to Chief Justice Parsons, the rationale for an establishment is based on the fact that “[c]ivil government…availing itself only of its own powers, is extremely defective”; accordingly, “the people of Massachusetts…adopted and patronized a religion, which by its benign and energetic influences, might cooperate with human institutions, to promote and secure the happiness of its citizens.” Fortunately, he writes, “the people were not exposed to the hazard of choosing a false and defective religious system. Christianity had long been promulgated, its pretensions and excellences well known, and its divine authority admitted.” In particular, “This religion, as understood by Protestants, tending, by its effects, to make every man…a better husband, parent, child, neighbor, citizen, and magistrate, was by the people established as a fundamental and essential part of their constitution.” Pointing out that there is “liberty of conscience” for all, “whether Protestant or Catholic, Jew, Mahometan or Pagan, the constitution then provides for the public teaching of the precepts and maxims of the religion of Protestant Christians to all the people.” It is, therefore, “the right and duty of all corporate religious societies, to elect and support a public Protestant teacher of piety, religion, and morality.” Unincorporated churches could not share in taxes raised under Article III, concluded Parsons; otherwise, which teacher to be supported depends “exclusively on the will of a majority of each society incorporated for these purposes.”

221-222. Don argues that Justice Parsons’s description of this arrangement as an “establishment” shows that some Massachusetts jurists believed that the town-by-town assessments for Protestant teachers were themselves believed to be establishments. It is an interesting question whether the assessments themselves, or instead the assessments only as part of the general, if unofficial, privileging of Protestant Christianity as the civic religion, is really what Justices Parsons and Sedgwick are describing as an “establishment.” The latter possibility might narrow the meaning of establishment somewhat: the privileging of Protestant Christianity by all of the means described by these Justices in the Massachusetts Constitution—including the assessment scheme—comes perhaps closer to the meaning of establishment as “official” privileging than does a meaning which considers assessments favoring religion alone as an establishment.

A third piece of evidence can be found right over the border among some Justices in New Hampshire, where, Don writes, “at about the same time, a distinguished jurist who was a member of the Second through the Fifth Federal Congresses made a point of saying that the Granite State’s town-based general assessment tax system for the support of Protestant ministers, which was quite similar to the Massachusetts approach, was clearly not an establishment of religion.” 223

The issue arose in the 1803 case of Muzzy v. Wilkins, where Chief Justice Jeremiah Smith “considered whether a Presbyterian was entitled to an exemption from the town taxes in support of the Congregational church under New Hampshire’s constitution, which empowered the legislature to authorize the towns of the state to make provision for public protestant teachers of piety, religion, and morality.” According to Chief Justice Smith, the assessment system alone did not constitute an establishment: “No one sect is invested with any political power much less with a monopoly of civil privileges and civil offices. All denominations are equally under the protection of the law, are equally the objects of its favor and regard.”

Chief Justice Smith’s is that rare opinion where a judge actually provides a definition of an “establishment”: “A religious establishment is where the State prescribes a formulary of faith and worship for the rule and governance of all the subjects.”

This definition, it is true, is narrower than what can be discerned from the general approach in the two Massachusetts decisions. But New Hampshire’s state constitution at the time did not (so far as I know) contain the sort of language unofficially, but quite explicitly, privileging Protestant Christianity as was the case in Massachusetts. It might be that it was this general privileging (even if unofficial, and to include, in Massachusetts, state assessments) that was thought by both Massachusetts and New Hampshire jurists to constitute “establishment.”

At any rate, it would be worthwhile, as well as interesting, to explore the range of common law meanings of establishment before ratification of the First Amendment as well. As Don says in the book, it would probably be impossible to arrive at a single fixed meaning. But it might well be possible to reach consensus about a general range or spectrum of meanings, with core or uncontested meanings graduating outward toward peripheral or contested ones.

Rappaport on Common Law Constitutionalism

Professor Michael Rappaport has a really neat post about common law rights that are constitutionalized, and how one should interpret such rights. The post is particularly interesting for me because in my constitutional theory seminar, we are in between two classes that consider, respectively, the role of tradition and historical practice in constitutional interpretation, and the relationship between precedent and interpretive theory. But as Professor James Stoner has shown, there are many textual features of the Constitution that use terms rooted in common law understandings. What are the interpretive possibilities in such cases; what happens to a common law right that has been constitutionalized? Rappaport sets out 3 options:

1. Static: When the common law right is constitutionalized, it becomes fully frozen, as if it were written law. To determine the meaning of the right, one looks to the common law in 1789. The existing decisions regarding the common law constitute the full meaning of the right.

2. Dynamic: Although the common law right was written into the Constitution, it did not change its character. Instead, it remains as flexible as a common law right. Under this interpretation, one might see something like the living constitution view in the Constitution.

3. Intermediate: When the common law right was constitutionalized, it changed its character, but it did not become fully frozen as if it were written law. Under this view, one treats the right as a common law right as of the time it was enacted, but does not give it a dynamic effect with changing circumstances.

It is not surprising that Professor Rappaport ends up opting for choice #3, because this choice maps neatly on his general interpretive defense (with Professor John McGinnis) of original methods originalism! See the post for his reasons. What is of special interest to me is the extent to which the Constitution depends upon common law terminology and common law ideas. For this, you really can’t do better than Professor Stoner’s work. But I suspect there is much more to be done in that area. In fact, sometimes I wonder whether anybody has ever reviewed the English experience with the term “establishment of religion” in the centuries before the Constitution’s drafting (surely someone has).

Nelson, “The Royalist Revolution: Monarchy and the American Founding”

Here’s one I will be sure to pick up–Eric Nelson’s (Harvard University) The The Royalist RevolutionRoyalist Revolution: Monarchy and the American Founding published by Harvard University Press later this year. Perhaps not straight down the law and religion fairway, but this fascinating looking book may shed a little ambient light on such issues as the framers’  intent as to the meaning of the religion clauses. The publisher’s description follows.

Generations of students have been taught that the American Revolution was a revolt against royal tyranny. In this revisionist account, Eric Nelson argues that a great many of our “founding fathers” saw themselves as rebels against the British Parliament, not the Crown. The Royalist Revolution interprets the patriot campaign of the 1770s as an insurrection in favor of royal power—driven by the conviction that the Lords and Commons had usurped the just prerogatives of the monarch.

Leading patriots believed that the colonies were the king’s own to govern, and they urged George III to defy Parliament and rule directly. These theorists were proposing to turn back the clock on the English constitution, rejecting the Whig settlement that had secured the supremacy of Parliament after the Glorious Revolution. Instead, they embraced the political theory of those who had waged the last great campaign against Parliament’s “usurpations”: the reviled Stuart monarchs of the seventeenth century.

When it came time to design the state and federal constitutions, the very same figures who had defended this expansive conception of royal authority—John Adams, Alexander Hamilton, James Wilson, and their allies—returned to the fray as champions of a single executive vested with sweeping prerogatives. As a result of their labors, the Constitution of 1787 would assign its new president far more power than any British monarch had wielded for almost a hundred years. On one side of the Atlantic, Nelson concludes, there would be kings without monarchy; on the other, monarchy without kings.

Hair and Prison in Nineteenth Century Law

Professor Chris Green points me toward a fascinating case decided by Justice Stephen Field in 1879 when he rode circuit in the District of California–Ho Ah Kow v. Nunan–also involving hair and prison. The case concerns a Chinese man who was imprisoned after he failed to pay a fine for violating a law limiting the number of people who could sleep in spaces of certain designated dimensions. While in prison, the man’s queue (a long braid worn on the back of the head) was cut off by the sheriff of the prison. The plaintiff claimed that the cutting off of his queue was a disgrace, a violation of his religious rights, and “is attended…with misfortune and suffering after death.” The sheriff defended on the ground that a San Francisco city ordinance required that every male prisoner’s hair must be “cut or clipped to an uniform length of one inch from the scalp thereof.” The plaintiff argued that the City lacked the authority to enact the ordinance and that the ordinance imposed “a degrading and cruel punishment upon a class of persons who are entitled, alike with all other persons within the jurisdiction of the United States, to the equal protection of the laws.”

The court agreed with the plaintiff. This particular so-called “queue ordinance” was specifically targeted against Chinese people (the opinion comments on the hostility of Californians toward the Chinese at the time) and enforced exclusively against them, notwithstanding the ordinance’s neutral and generally applicable language. The court also noted the importance of the burdensome effects of an ostensibly neutral and generally applicable law: “Many illustrations might be given where ordinances, general in their terms, would operate only upon a special class, or upon a class, with exceptional severity, and thus incur the odium and be subject to the legal objection of intended hostile legislation against them.” The ordinance was struck down on this ground alone.

But the court’s remarks about the relationship between hair-length regulations and various types of interests that the prison might advance are also worth thinking about:

The cutting off the hair of every male person within an inch of his scalp, on his arrival at the jail, was not intended and cannot be maintained as a measure of discipline or as a sanitary regulation. The act by itself has no tendency to promote discipline, and can only be a measure of health in exceptional cases. Had the ordinance contemplated a mere sanitary regulation it would have been limited to such cases and made applicable to females as well as to males, and to persons awaiting trial as well as to persons under conviction. The close cutting of the hair which is practiced upon inmates of the state penitentiary, like dressing them in striped clothing, is partly to distinguish them from others, and thus prevent their escape and facilitate their recapture. They are measures of precaution, as well as parts of a general system of treatment prescribed by the directors of the penitentiary under the authority of the state, for parties convicted of and imprisoned for felonies. Nothing of the kind is prescribed or would be tolerated with respect to persons confined in a county jail for simple misdemeanors, most of which are not of a very grave character. For the discipline or detention of the plaintiff in this case, who had the option of paying a fine of ten dollars, or of being imprisoned for five days, no such clipping of the hair was required. It was done to add to the severity of his punishment….

The claim, however, put forth that the measure was prescribed as one of health is notoriously a mere pretense. A treatment to which disgrace is attached, and which is not adopted as a means of security against the escape of the prisoner, but merely to aggravate the severity of his confinement, can only be regarded as a punishment additional to that fixed by the sentence. If adopted in consequence of the sentence it is punishment in addition to that imposed by the court; if adopted without regard to the sentence it is wanton cruelty.

A Column on Legislative Prayer

I have a short column up at Commonweal on Town of Greece v. Galloway (which the Supreme Court is now considering) and the general question of the constitutionality of legislative prayer.

Corey on Oakeshott and the Rationalism of the Early American State

Elizabeth Corey has a very interesting review of a book by Gene Callahan about the extent to which the ideas of the British political theorist, Michael Oakeshott, are consistent with some of the founding ideas and principles of the American nation–particularly those championed in the Declaration of Independence but also in the US Constitution. Corey describes the book–Oakeshott on Rome and America–as working its way through this question by positing that it is true that, for example, the Constitution displays the sort of rationalism in politics that Oakeshott criticized–averring principles and political arrangements that were to bind future generations. Nevertheless, there are both internal and external limits on the rationalism of the Constitution. The internal limits are structural, providing for a government of limited powers and securing ample space for the sorts of civil association that Oakeshott defended. Here’s the conclusion of Corey’s review, which explains the external limits:

Does our American Founding, despite its aim of limiting and checking the power of those who govern, exhibit an essentially Rationalistic tendency? In other words, are the self-evident principles and universal rights it proclaims really nothing more than a distillation of the inherited English political experience, parading as eternal truths? And even if they were considered eternal truths in 1776 or 1787, are they really so today? Callahan observes that if the political culture does not support such rights and limits, or if presidents, politicians and judges are intent on, to put it gently, reinterpreting them, then there is nothing at all to stop them from doing so.

Callahan observes that a written constitution will inevitably “be read in a way that conforms to the prevailing understanding of how government ought to operate and what powers it ought to possess.” This is not simply because living constitutionalists and progressives of all stripes have managed to gain majorities in important cases. It is because, argues Callahan following Oakeshott, no written constitution can do what it purports to do in terms of providing pointed and substantive barriers to political action, especially when majorities support such action. For such reasons even Originalism is unsupportable. The notion of grounding or stabilizing the meaning of the Constitution by recourse to “original intent” is, he observes, “not just a pipe dream today, but always was such.” In short, the political culture supports the Constitution; not the other way around. We need only look at the contemporary debate about marriage to see that this is true, whether we like it or not.

One final thought. Perhaps, it might be argued, Oakeshott is right in his arguments about political culture. Politics goes on as it will in a democracy so long as a majority is happy with the outcomes. Yet given the current debates over religious liberty, one wonders where we would find ourselves without the “protection,” or at least the threat, of the first Amendment against government overreach. It is one thing to find the provisions of the Constitution and Bill of Rights not totally adequate for the job; it is another thing to be without them altogether. All parties in the debates over enumerated rights at least acknowledge that the Bill of Rights must be taken into account.

Liberty Fund Podcast on The Tragedy of Religious Freedom

I’m grateful to Richard Reinsch of the excellent Law and Liberty blog (a project of The Liberty Fund) for discussing The Tragedy of Religious Freedom with me. If you are not familiar with the resources available at the Liberty Fund, you should check them out. I use their extensive on-line library all the time and they have many interesting essays, book reviews, and posts.

McGinnis & Rappaport, “Originalism and the Good Constitution”

The importance and influence of originalism as a theory of constitutional interpretation cannot be overstated. Originalism demands a response, and it has been uniquely successful in generating responses (whether sanguine or skeptical) from constitutional scholars as well as the broader public. In recent years, originalism has enjoyed renewed prominence in both the courts and the scholarly community. So-called “new originalism” has come on the scene, garnering a few unexpected adherents. And originalism’s influence has certainly increased on the Supreme Court in the last decade. Indeed, it is difficult to imagine an opinion on, for example, the Recess Appointments Clause in the upcoming Noel Canning case that does not discuss originalist methods and reach conclusions consistent with originalist interpretive theory. That prediction could not have been made in previous eras.

The influence of originalist thinking on the interpretation of the Constitution’s religion clauses has been perhaps less powerful than in other areas (Michael McConnell’s work is a notable exception, and there are a few others). In part this is due to complex and difficult disagreements among scholars about the meaning and scope of the Free Exercise Clause (see, for example, the old debate between McConnell and Philip Hamburger, reflected in the dueling opinions by Justices O’Connor and Scalia in City of Boerne v. Flores). In part it is due to the radical expansion of the coverage of the Establishment Clause in Supreme Court caselaw beginning in the 1940s (see Donald Drakeman’s book, among other treatments) well beyond its original meaning. Nevertheless, there is a distinct possibility that originalist analysis will play a prominent role in the interpretation of the Establishment Clause in the upcoming Supreme Court legislative prayer case–at least in some of the opinions.

All of this is just a little background for what looks to be an extremely Originalism and the Good Constitutionimportant new book on originalism by two of the most acute proponents of originalism (specifically, original methods originalism, which the authors usefully compare against the constitutional construction of another new originalist, Larry Solum) writing today: Originalism and the Good Constitution (HUP 2013) by John McGinnis (Northwestern) and Michael Rappaport (University of San Diego). The book is a must-read for anyone interested in constitutional interpretation (even for–especially for–those of us who are not originalists). For some of my own thoughts about originalism in constitutional interpretation, see the second half of this paper. The publisher’s description follows.

Originalism holds that the U.S. Constitution should be interpreted according to its meaning at the time it was enacted. In their innovative defense of originalism, John McGinnis and Michael Rappaport maintain that the text of the Constitution should be adhered to by the Supreme Court because it was enacted by supermajorities—both its original enactment under Article VII and subsequent Amendments under Article V. A text approved by supermajorities has special value in a democracy because it has unusually wide support and thus tends to maximize the welfare of the greatest number.

The authors recognize and respond to many possible objections. Does originalism perpetuate the dead hand of the past? How can following the original meaning be justified, given that African Americans and women were excluded from the enactment of the Constitution in 1787 and many of its subsequent Amendments? What is originalism’s place in interpretation of the Constitution, when after two hundred years there is so much non-originalist precedent?

A fascinating counterfactual they pose is this: had the Supreme Court not interpreted the Constitution so freely, perhaps the nation would have resorted to the Article V amendment process more often and with greater effect. Their book will be an important contribution to the literature on originalism, which is now the most prominent theory of constitutional interpretation.

%d bloggers like this: