Friday, March 8, 2019
Here’s a new draft of an article I just posted: The Traditions of American Constitutional Law (forthcoming Notre Dame Law Review). Comments most welcome on what is still very much a work in progress. Here is the abstract.
This article identifies a new method of constitutional interpretation: the use of tradition to inform constitutional meaning. It studies what the Supreme Court means by invoking tradition and whether what it means remains constant across the document and over time. The task is worth pursuing inasmuch as traditional interpretation is pervasive, consistent, and recurrent across the Court’s constitutional doctrine. So, too, are criticisms of traditional interpretation. There are also more immediate reasons to study the role of tradition in constitutional interpretation. The Court’s two newest members, Justices Neil Gorsuch and Brett Kavanaugh, have indicated that tradition informs their understanding of constitutional meaning. The study of traditional interpretation seems all the more pressing to understand certain possible jurisprudential moves in the Court’s future.
The article concludes that when the Court interprets traditionally, it signals the presumptive influence of political, legal, or cultural practices of substantial duration for informing constitutional meaning. Traditional interpretation is thus constituted of three elements: (1) a focus on practices, rather than principles, as informing constitutional meaning; (2) a practice’s duration, understood as a composite of its age and continuity; and (3) a practice’s presumptive, but defeasible, interpretive influence. Traditional interpretation’s emphasis on practices that are given tangible form in a people’s lived experience suggests that it is preferable to speak about politically, legally, and culturally specific traditions rather than an abstracted concept of tradition. Hence, “the traditions of American constitutional law.”
The article identifies traditional interpretation as its own method; shows its prevalence and methodological consistency across the domains of constitutional interpretation; isolates and examines its constituent elements, comparing them against other prominent interpretive approaches; and infers and explains the justifications of traditional interpretation from the doctrinal deposit. While there may be some irony about a claim of novelty in an article about tradition, what this article identifies as new is not the invocation of tradition as such, but the isolation of a recurrent and consistent method—traditional interpretation—adopted by the Court across its interpretive work. It aims to bring to light an overlooked and yet frequently used interpretive practice, and to understand its structure, situation, and purpose within the Court’s constitutional doctrine.
Thursday, February 7, 2019
I began teaching law about 10 years ago, at a time when blogging was relatively new, but already old enough to seem only a partially, rather than a totally, suspect and outré activity. For new law professors, blogging represented a way--comparatively low-cost and easy--to begin to make connections and meet other people. Before blogging, I had always considered myself a (proud) luddite but unlike some of my junior colleagues, I made use of blogging fairly liberally in those days for networking. Dan Markel invited me to guest blog over at Prawfsblawg, and as far as I can reconstruct it, my first blog was this one "against novelty" in May 2009.
After a few repeat stints at Prawfs, Rick asked me over to Mirror of Justice in the fall of 2010, where my first post was about my review of what was then a new book by MOJ denizen, Steve Shiffrin. At that time, a lot of my scholarly focus was in criminal law, and I was especially interested in the idea that there was something distinctive about criminal law that differentiated it from other disciplines. This old post from back in those days--on the smoldering core of criminal law--was in that vein.
One nice thing about retrospective moments like this is that they allow one to think about themes that bind together one's work in a very general way. That post and several others from the earlier days reflect a much broader issue that has interested me over the years: namely, what multifarious sets of values and principles we can glean about the law from the way in which it actually exists and is practiced in our world. From the bottom up, as it were. In criminal law, law and religion, free speech, constitutional adjudication, and (now) constitutional interpretation (in a new article on the Supreme Court's use of tradition to inform constitutional meaning...more soon), I often find myself drawn to the theme of taking the practices immanent in law as reflecting a set of views, or even a mood about, or perhaps a general orientation toward, the legal and political world that is worth investigating and studying. To see what we can squeeze out of what it is now, rather than of what it might or ought to be. At Mirror of Justice, I've sometimes tried to think about how those practical realities about law, as I perceive them, inform and are informed by Catholic ideas.
But enough of this tedious navel-gazing. Mostly what I want to say now is that Mirror of Justice has been a place of true scholarly community for me. I have met some of my closest friends in the legal academy through this blog. It has been a source of fellowship and friendship for me over the years. If it has run its course, I will miss it. Ave atque vale!
Thursday, January 17, 2019
Mark Movsesian and I have this podcast as part of our Legal Spirits series, concerning a prayer practice at school board meetings in Chino Valley, California. The 9th Circuit panel struck down the practice, holding it as outside the ambit of Town of Greece v. Galloway. In connection with the en banc court's refusal to rehear the case, there was a subsequent statement by Judge O'Scannlain (and joined by 7 active judges on the 9th Circuit) severely criticizing the panel's decision and discussing the definition and scope of the tradition of legislative prayer marked out by Town of Greece.
We talk all about it in the podcast.
Saturday, December 29, 2018
Something in honor of the martyrdom of the great saint, from Robert Tombs's superb The English and Their History 68-69 (2015):
Henry [II's] policy of asserting the legal rights of the Crown did not make him popular. Eyres were sudden, frightening descents that not only tried legal cases, but generally asserted royal power, including by aggressive imposition of higher taxes and feudal exactions. Mere suspicion brought ordeal by water or hot iron. Royal justice also led to a clash with the Church, when in the Constitutions of Clarendon (1164) Henry legislated for political control over the Church, including royal jurisdiction over those clergy (and bogus clergy) who committed crimes. This caused an angry breach with his close friend and trusted chancellor, Thomas Becket, whom he had made Archbishop of Canterbury in 1162, and who had unexpectedly become an intransigent defender of ecclesiastical privilege. Their trial of strength culminated in Becket's murder on 29 December 1170 in Canterbury Cathedral.
Wednesday, December 19, 2018
From "Bleak House" (chapter 16, "Tom-all-Alone's"):
It must be a strange state to be like Jo! To shuffle through the streets, unfamiliar with the shapes, and in utter darkness as to the meaning, of those mysterious symbols, so abundant over the shops, and at the corners of streets, and on the doors, and in the windows! To see people read, and to see people write, and to see the postmen deliver letters, and not to have the least idea of all that language—to be, to every scrap of it, stone blind and dumb! It must be very puzzling to see the good company going to the churches on Sundays, with their books in their hands, and to think (for perhaps Jo DOES think at odd times) what does it all mean, and if it means anything to anybody, how comes it that it means nothing to me? To be hustled, and jostled, and moved on; and really to feel that it would appear to be perfectly true that I have no business here, or there, or anywhere; and yet to be perplexed by the consideration that I AM here somehow, too, and everybody overlooked me until I became the creature that I am! It must be a strange state, not merely to be told that I am scarcely human (as in the case of my offering myself for a witness), but to feel it of my own knowledge all my life! To see the horses, dogs, and cattle go by me and to know that in ignorance I belong to them and not to the superior beings in my shape, whose delicacy I offend! Jo's ideas of a criminal trial, or a judge, or a bishop, or a government, or that inestimable jewel to him (if he only knew it) the Constitution, should be strange!
Monday, December 17, 2018
I wanted to direct a little notice to the very fine "Judicial Power Project" run by Professor Richard Ekins. The project has put together a few very interesting programs. Here are two:
First, an online collection of essays, the lead piece of which is by John Finnis ("Judicial Power: Past, Present, and Future"), and subsequent responses by various distinguished jurists, with a reply by Professor Finnis.
Second, an online symposium on a new book by Paul Yowell, Constitutional Rights and Constitutional Design: Moral and Empirical Reasoning in Judicial Review. The book's core claims concern the mismatch between the empirical judgments made by judges in constitutional rights cases and the institutional capacity of courts to make such judgments. The online symposium contains responses by several prominent legal scholars and judges, including Professors Adrian Vermeule and Erin Delaney, as well as Professor Ekins himself.
Friday, December 7, 2018
Next week, the third and final conference of the Tradition Project kicks off in Rome: "The Value of Tradition in the Global Context." The conference is the product of the joint labor of three institutions: LUMSA University in Rome (with our colleague Monica Lugato taking the lead), Villanova's Eleanor H. McCullen Center for Law, Religion, and Public Policy (ably stewarded by our MOJ colleague, Michael Moreland), and the Center for Law and Religion at St. John's Law School (directed by Mark Movsesian and me).
This session will feature a public address, on December 12, by Associate Justice Samuel A. Alito, Jr., of the United States Supreme Court, and four private workshops on the conference themes, ranging over the political, cultural, and legal dimensions of the role of tradition in the world today. Rick Garnett and Adrian Vermeule will be in our number as well. Here is the program.
Monday, November 19, 2018
Mark Movsesian and I have our second Legal Spirits podcast up. This one is about the cert. grant in the so-called "Peace Cross" case out of Maryland. The 2-1 opinion in the Fourth Circuit was American Humanist Association v. Maryland-National Capital Park and Planning Commission.
Mark and I go through the facts (some of which are contested), the circuit opinion, the cert. petition, and the arguments about the Establishment Clause in these state-sponsored religious display cases likely to be confronted by the Supreme Court.
Tuesday, November 13, 2018
Apropos of the exchange below concerning liberalism and Catholicism discussed by Rick and Adrian, and in particular with respect to Rick's suggestion that Michael Moreland might represent the missing Murray option, here is a discussion that Michael, Rick, and I had concerning the state of free speech in the US at the conference where all of the other thinking and talking was going on.
It does not address the central issues of those other interactions directly. But it does so at least obliquely. You can get a sense for some of the range of that disagreement (but also for many areas of agreement) in the different positions that we each hold.
I’ve posted a new draft, forthcoming in the Harvard Journal of Law and Public Policy: The Sickness Unto Death of the First Amendment. Here is the abstract.
The sickness unto death, in Søren Kierkegaard’s work of the same name, is the anxiety and despair an individual experiences in recognizing that the self is separated from what is collective, extrinsic, or transcendent. Something like this condition now afflicts the First Amendment. The sickness unto death of the First Amendment is that the spectacular success of free speech and religious freedom as American constitutional rights on premises of liberal, individual autonomy has been the very cause of mounting and powerful collective anxiety. The impressive growth of these rights has rendered them fragile, if not actually unsustainable, in their current form. Their unprecedented expansion has brought on an awareness of their emptiness in serving the larger, common political good. The yearning for political community and shared purpose transcending individual interest has in turn generated vigorous calls for First Amendment constriction to promote what are claimed to be higher ends — in some cases ends that were promoted by the hypertrophy of the First Amendment itself.
What binds these claims is the view that expansive First Amendment rights harm others or are more generally socially or politically harmful. In some cases, the same people who argued for the disconnection of free speech rights from common civic ends are now advocating free speech constriction to reconnect free speech to new ends said to be constitutive of the American polity. The same is true for religious freedom. But in a society that is deeply fractured about where the common good lies, imposing new limits on First Amendment rights in the name of dignity, democracy, equality, sexual freedom, third party harm, or any of the other purposes championed by the new constrictors is at least as likely to exacerbate social and civic fragmentation as to reconstitute it.
This paper describes the development of the First Amendment — and in particular of its ends and limits — through three historical periods. Part I concerns early American understandings, which conceived rights of free speech and religious freedom within an overarching framework of natural rights delimited by legislative judgments about the common political good. Part II traces the replacement of that framework with a very different one in the twentieth century, describing the judicial turn toward self-regarding justifications of speech that prioritize individual autonomy, self-actualization, and absolute anti-orthodoxy. The paper describes the crisis or despair of free speech and the coming of the First Amendment constrictors in Part III. It concludes briefly in Part IV by recapitulating the parallel paths of the rights of free speech and religious freedom. It is, in fact, remarkable that over the centuries, some of the most prominent justifications for and objections to the scope of these rights have proceeded pari passu and assumed nearly identical shape.
- Another Garnett on solidarity and suffering
- TCPA's content-based robocall ban survives in the Fourth Circuit because of severability; previously exempt debt-collecting robocallers apparently in new legal jeopardy.
- Berkowitz reviews Wilken on the Christian Foundations of Human Rights
- A Panel Discussion on the Life and Legacy of Rev. Theodore M. Hesburgh, C.S.C.
- "Catholic Thought and the Challenges of Our Time"