Posted on by Mark Movsesian

Pin on Human Dignity

Very happy to announce the publication this month of Andrea Pin’s latest book, Dignity in Judgment: Constitutional Adjudication in Comparative Perspective (Oxford). Andrea is a Full Professor at Padua and one of the world’s leading scholars in comparative constitutional law–as well as a friend of the Mattone Center and frequent participant in our program. Always worth reading!

Here is the description from the Oxford website:

Dignity is a complex philosophical, theological, and constitutional concept. Courts have often progressively distanced the notion of dignity in constitutional law from its religious connotation to emphasize individual autonomy and self-determination. This process has made the notion of dignity less ambiguous, but narrower and more controversial.

Dignity in Judgment: Constitutional Adjudication in Comparative Perspective compares how the apex courts of Canada, Colombia, Egypt, the EU, and Israel operationalize the concept of dignity in their case law. While these countries share an Abrahamic faith and secularization tendencies, these legal systems host a plurality of societal values, and their courts have the reputation of having an activist approach to adjudication. This book offers an in depth-analysis of key decisions that reflect or use the concept of dignity, including capital punishment, antiterrorism measures, biotechnologies, and same-sex relations to build a model of human dignity that facilitates mutual understandings among and within legal traditions. It shows how religious and secular understandings of dignity have shaped its interpretation through the decades.

Insightful and thought-provoking, Dignity in Judgment explores the concept of dignity as it appears in the law by uncovering its character across different legal cultures and religious contexts.

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Legal Spirits 071: Jefferson, Wine, and the Wall of Separation

Thomas Jefferson’s 1802 letter to the Danbury Baptists—better known for its reference to a “wall of separation” between church and state—was little remembered until Chief Justice Morrison Waite revived it in Reynolds v. United States (1879). With the help of historian George Bancroft, Waite transformed Jefferson’s passing metaphor into a constitutional principle, despite Jefferson’s limited role in drafting the First Amendment. In this episode of Legal Spirits, historians Don and Lisa Drakeman join Center Director Mark Movsesian to explore how Jefferson’s words, and even his passion for French wine, helped shape the Court’s Religion Clause jurisprudence—and to consider what lessons today’s Justices should draw about the risks of using history in constitutional interpretation. Listen in!

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Legal Spirits 068: Religion at the Court: October Term 2024 Recap

In this episode of Legal Spirits, we review the Supreme Court’s major religion cases from the October 2024 Term. From religious charter schools to religious exemptions to parental rights in public education, the Court addressed long-standing issues—and, in one case, made a dramatic move. Join Center Director Mark Movsesian and guest John McGinnis as they unpack the implications of Drummond, Catholic Charities Bureau, and Mahmoud v. Taylor.

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Posted on by Mark Movsesian

Justice Breyer on Constitutional Interpretation

In the law-and-religion world, former Justice Stephen Breyer is most famous for a phrase in a concurrence in one of the 10 Commandments cases from about 20 years ago (yikes, has it been that long?). In his concurring opinion in Van Orden v. Perry, which ruled in favor of a 10 Commandments monument on the Texas state capitol grounds, Breyer explained that bright-line tests are inadvisable in such cases: “there is no test-related substitute for the exercise of legal judgment.” Legal judgment, he continued, did not mean subjectivity, but a consideration of the purposes of a constitutional text, the historical and social context, and practical consequences. The older I get, the more I see the wisdom of this approach, even though most of my academic colleagues, on the right and the left, find it maddeningly vague and under-theorized. In law, it seems to me, including constitutional law, there’s really no escaping the sort of judgment Breyer describes. That’s why we call them judges.

I’m sure Justice Breyer discusses all this in a his new book–which I’m a little late to get to–Reading the Constitution: Why I Choose Pragmatism, Not Textualism. The publisher is Simon & Schuster. Here’s the description from the publisher’s website:

The relatively new judicial philosophy of textualism dominates the Supreme Court. Textualists claim that the right way to interpret the Constitution and statutes is to read the text carefully and examine the language as it was understood at the time the documents were written.

This, however, is not Justice Breyer’s philosophy nor has it been the traditional way to interpret the Constitution since the time of Chief Justice John Marshall. Justice Breyer recalls Marshall’s exhortation that the Constitution must be a workable set of principles to be interpreted by subsequent generations.

Most important in interpreting law, says Breyer, is to understand the purposes of statutes as well as the consequences of deciding a case one way or another. He illustrates these principles by examining some of the most important cases in the nation’s history, among them the Dobbs and Bruen decisions from 2022 that he argues were wrongly decided and have led to harmful results.

Posted on by Mark Movsesian

Movsesian on Munoz on Original Meaning

Happy to report that my review of Phillip Munoz’s excellent new book on the original meaning of the religion clauses, Religious Liberty and the American Founding, is up on the website of the Journal of Law & Religion (Cambridge). Munoz persuasively argues that the Framers disagreed on precisely what the Religion Clauses of the First Amendment protect, apart from the freedom to worship. And, I argue, that’s why original meaning can’t provide closure on many of our debates about religious liberty today.

Here’s an excerpt:

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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Legal Spirits 048: The Rise of the Nones and American Law

Last month, the Center co-sponsored a panel, “The Rise of the Nones and American Law,” featuring Professors Steven Collis (University of Texas), Mark Movsesian (St. John’s) and Gregory Sisk (University of St. Thomas–Minnesota). The panel explored how the explosion in the numbers of the religiously unaffiliated in contemporary America might affect jurisprudence under the Religion Clauses. In this episode of Legal Spirits, the panelists recap their arguments and offer some new ones. What impact will the Nones have on Establishment and Free Exercise in 21st century America? Listen in!

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Posted on by Mark Movsesian

Religion and the American Constitutional Experiment (New Edition)

Last month, Oxford released a new, fifth edition of Religion and the American Constitutional Experiment. Our friend Rick Garnett (Notre Dame) joins our friends John Witte (Emory) and Joel Nichols (St. Thomas) on this edition, which is current through 2021 and covers the COVID-19 epidemic, among other recent developments. Here’s the publisher’s description:

This accessible and authoritative introduction tells the American story of religious liberty from its colonial beginnings to the latest Supreme Court cases. The authors analyze closely the formation of the First Amendment religion clauses and describe the unique and enduring principles of the American experiment in religious freedom – liberty of conscience, free exercise of religion, religious equality, religious pluralism, separation of church and state, and no establishment of religion. Successive chapters map all of the 240+ Supreme Court cases on religious freedom – covering the free exercise of religion; the roles of government and religion in education; the place of religion in public life; and the interaction of religious organizations and the state. The concluding reflections argue that protecting religious freedom is critical for democratic order and constitutional rule of law, even if it needs judicious balancing with other fundamental rights and state interests.

Clear, comprehensive, multidisciplinary, and balanced, this classic volume is an ideal classroom text. This new 5th edition addresses fully the new hot-button issues and cases on religious freedom versus sexual liberty; religious worship in the time of COVID; freedom of conscience and exemption claims; state aid to religion; religious monuments and ceremonies in public life; and the rights and limits of religious groups.

Posted on by Mark Movsesian

Legal Fictions and Our Constitutional Republic

At the Law & Liberty site today, I have an essay on Steve Smith’s fine new book, Fictions, Lies, and the Authority of Law. I use the essay to address one of Steve’s central claims–our constitutional order is based on a fictional consent that has served us well over time. Can this fiction continue to bind together our increasingly fractured society? Here’s an excerpt from my essay:

Can these two conditions, “plausibility and payoff,” continue to hold? In a prologue, Smith notes that he largely finished this book in the fall of 2019 and could not consider all that has transpired in our country since then. Nonetheless, he doesn’t seem very hopeful, and it’s easy to see why. The events of the past two years suggest that America is coming apart in ways that make the beneficial fiction he describes increasingly hard to maintain. Increasing numbers of Americans no longer identify instinctively with the “We the People” in whose name the Constitution and laws bind us. Indeed, the National Archives now includes a trigger warning on its website for people accessing the Constitution, alerting readers to the “potentially harmful language” they will encounter in the document. As Smith writes, people who see themselves “as systematically oppressed or discriminated against  . . . have little incentive to overlook the fictional quality of the ‘consent’ on which government’s assertion of authority depends.” And our officials seem increasingly dysfunctional—petty, gridlocked, and feckless, unable to end their squabbling long enough to handle a nationwide public-health emergency or withdraw from a military campaign in an ordered, dignified way.

You can read the whole essay here.

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Around the Web

Here are some important law-and-religion news stories from around the web:

Posted on by Mark Movsesian

More on Motive in Law

A followup to Marc’s post on motive in law. Marc notes that motive remains salient in constitutional law, but not in tort or criminal law. I’d like to add just a couple of points.

First, when it comes to constitutional law, motive is especially important in contemporary Religion Clause jurisprudence. The Lemon test (much-derided, but still extant, in my opinion, even after last term’s Bladensburg Cross case) makes government motive central to Establishment Clause cases. In the Free Exercise context, government motive figures prominently as well. The Masterpiece Cakeshop decision turned almost entirely on the Court’s inferences about the anti-religious motives of Colorado state officials.

Marc wonders why motive should be relevant in constitutional law, when it has lost its relevance in tort law. It’s a good question. Because motive is even more elusive in public law than in private law. Take contract law, for example. Classical contract law disregards a party’s motives for making a contract. It doesn’t matter why someone makes a contract. The only thing that matters is that the person intends to make a contract–or, rather, that an objective observer would understand that the person intends to make a contract. This is so because a party may have several motivations for making a contract: profit, affection, indifference, etc. To try to figure which motive was the most important is a hopeless task.

The problem is even more compounded when it comes to government motive. In contract law, we’re talking about the intentions of two actors. But government actions turn on the decisions of potentially hundreds of actors, all of whom may have multiple motives. The problem of ascertaining motive is even more difficult in this context.

I’m not sure where all this leads. But Marc is right in pointing out the continued relevance of motive in constitutional law, and its continued irrelevance in private law. It’s a puzzle that demands an answer.