Sunday, September 5, 2021
I have a new paper on the political relationship of establishment and free exercise as exemption. It responds to several scholarly and other claims and trends in First Amendment work. But some of the paper's arguments and implications are directed toward advocates of religious liberty as much as opponents. Here is the abstract:
American law is beset by disagreement about the First Amendment. Progressive scholars are attacking the venerable liberal view that First Amendment rights must not be constricted to secure communal, political benefits. To prioritize rights, they say, reflects an unjust inflation of individual interest over our common political commitments. These disagreements afflict the Religion Clauses as well. Critics claim that religious exemption has become more important than the values of disestablishment that define the polity. Free exercise exemption, they argue, has subordinated establishment.
This Article contests these views. The fundamental rules and norms constituting the political regime—what the Article calls “the establishment”—has now, and has always had, political priority to rights of exemption from it. This basic claim may be narrowed to the issue of church and state, but it is simply a more focused version of the same thing: the establishment’s civil religion—the set of transcendent, church-state propositions that supports the political regime’s legitimacy and authority—has political priority to rights of exemption from it. Narrowed further, the basic claim also reflects the dynamics of Religion Clause doctrine: religious exemption’s contemporary ascendance is an epiphenomenal consequence of the civil religion dismantling effected by the Supreme Court’s Religion Clause doctrine in the twentieth century and consolidated by the Court in the twenty first. Though today’s most divisive law and religion controversies often take surface-level legal shape as conflicts about free exercise exemption, their deeper source is a long-gestating transformation in the nature of the American political regime’s civil religion establishment. Today’s free exercise cases are the latest skirmishes in yesterday’s disestablishment wars. They reflect disagreements over how best to characterize the work of the dismantlers, as well as efforts toward consolidation of that work to achieve a new civil religion regime. And what they show is that in twenty-first century America, just as ever, establishment still takes political priority to free exercise.
Saturday, March 6, 2021
I have this review at the Liberty Fund Law and Liberty site of Professor John Lawrence Hill’s book, The Prophet of Modern Constitutional Liberalism: John Stuart Mill and the Supreme Court (2020). A bit from the end:
What may be most puzzling in harm principle arguments is the assertion that they are not moral arguments. Hill repeats this claim in describing Mill’s view that the harm principle eschews “legal moralism.” True, Mill’s moralism is of a peculiar sort—one that steadfastly denies its moralism even as it imposes it. And this, too, is part of Mill’s legacy in American law. “Don’t impose your morality on me!” Such is the complaint, in the high and mighty places of American legal culture, of those most willing to do just that through the harm gambit.
Might it not be better simply to dispense with the harm principle? The advantages are plain. Rather than disguising what are contested moral assertions in the discursive cloak of harm—or its currently fashionable obverse, “health”—we could call deep moral disagreement by its rightful name. The losers would at least lose honestly, and what they lose could be recognized as a loss. They would not suffer the further indignity of explanations that their views are just a category mistake.
Yet regrettably, we seem destined to bear Mill’s burden. Harm-creep and harm-shrink in constitutional law track developments in other cultural arenas, where the concept of harm has enjoyed “semantic inflation” and deflation. And the efficacy of harm claims tends to correspond with who’s up and who’s down anyway. Those who wield cultural influence and can translate what they take to be grievances into legally cognizable harms will feel justified in dismissing the losers’ further losses simply as “not harms.”
A balancing of losses and gains is not enough for the victors, because only a moralized victory that treats them as fully virtuous (or “privileged” but absolved after some modest public abasement) and deserving of their wins will do. Hurts to the wrong sort of people become not matters of regret, but moral imperatives. Those hurts are “non-harm.” All the while, collateral wounds of various sorts accrue and are rendered invisible. It would not be fair to blame Mill for all of this, in legal discourse or elsewhere. Perhaps moral argument in law inevitably has something of this quality—that when the strong do what they can, it is the moral fault of the weak that they suffer as they must.
Sunday, February 21, 2021
I thought this fragment from Professor James Hankins' Virtue Politics: Soulcraft and Statecraft in Renaissance Italy (2019), was very interesting and well put (64-65):
A conceptual framework motivated by present concerns may distort the past, but questions about origins and foundations are surely not "temptations" but the lifeblood of historical inquiry. A methodology that cripples the ability to ask such questions needs rethinking. Historical questions and metahistorical questions are indeed different and should be kept separate, but this fact need not be taken as a source of epistemological despair. Rather it is, or it should be, a call to exercise our imaginative understanding of human phenomena in relation to the entirety of past cultures, their Lebenswelt, the long-faded structures of practical constraints and inherited values that shaped those cultures and still renders them legible, with disciplined research, to the attentive mind. In practical terms this means exercising ceaseless vigilance against anachronism: something easier said than done. To see the past in its own terms goes against our naïve or interested desire to make use of the past for our own purposes. It also requires hard work, imagination, and (dare one say it) a certain kind of love. We want to root our own identities as individuals or groups in a glorious past, or (more often these days) we want to preen ourselves on our superiority to a benighted past, and this desire sometimes blinds us to difference, to anachronism, to moral universes other than our own. But sometimes we have to transcend our own needs in order to do justice to the reality of other persons and times. And sometimes it is the truth we cannot see that is precisely the one we need.
Saturday, January 16, 2021
I enjoyed speaking about the relationship of substantive and procedural ideas of justice to the rule of law and stare decisis on this panel, part of The International Forum on the Future of Constitutionalism's "Global Summit" organized by Professor Richard Albert. In my remarks, I argued against a thin, purely proceduralist view of the rule of law and stare decisis, and also against a morally thick, substantive view of the rule of law and stare decisis. I urged an intermediate possibility. As the rule of law seems to be in the air, so to speak, I thought I would reproduce my remarks. They are below.
I want to reflect on the relationship of substantive political morality to the rule of law and stare decisis. On some accounts, the virtues of both the rule of law and stare decisis are purely procedural. On other accounts, the rule of law incorporates thick, substantive conceptions of political morality. For example, a set of substantive human rights as defined by an international body or other community. Or some thick, substantive ideal of equality or justice. Interestingly, people do not take this second view about stare decisis, the obligation of courts as a general matter to stand by a prior precedent even when they disagree with it. So far as I know, nobody thinks stare decisis contains an ideal of human rights, for example.
So, which account is right? There are a few possibilities. One possibility is that the rule of law *and* stare decisis both embody purely procedural ideals, and that those arguing for a substantive political morality within the rule of law are wrong. A second possibility is that the rule of law embodies substantive political morality while stare decisis does not. That is, the rule of law and stare decisis are relevantly different on this score. And a third possibility is that both the rule of law and stare decisis incorporate procedural and moral values. Now, even though as I indicated, nobody takes this view as to stare decisis (though some do as to the rule of law), I actually think this is the correct position.
But the type of substantive political morality incorporated within the rule of law and stare decisis is not the sort of thick view of the second possibility—equality or human rights or liberty or antidiscrimination, for example. It is instead a kind of political morality related to the procedural virtues of both.
Let me briefly describe the first two views. I’ll then take on the third view, sketching Lon Fuller’s position and extending it in ways that thicken it somewhat, but not all the way, so to speak. Not to oatmeal or gruel thickness, but more like to lobster bisque or vichyssoise thickness.
Sunday, January 10, 2021
I participated in this panel at the Federalist Society's annual academic conference last Friday. The discontent sampled here came largely from the non-standard direction, though not entirely. Perhaps of special interest for MOJ: I'm coming to think that Kevin Walsh and Jeff Pojanowski (among others) have hit on a correct insight that a crucial inflection point on the issue of discontent concerns the necessary relationship (or not) between originalism and legal positivism, something I touched on in my comments. Other discontent, raised by other commenters, involved the relationship of originalism and legal conservatism, and I thought it interesting to hear how other speakers conceived the former and the latter.
Monday, December 28, 2020
I'm pleased to announce that my new paper, Reconstructing Malice in the Law of Punitive Damages, will be published by the Journal of Tort Law next year. The paper is my first foray into tort law scholarship, though I have been teaching Torts for the last 3 years at St. John’s. Malice, in the common law of crime and tort, is a thorny subject with a complicated and ancient lineage. Indeed, there are interesting connections between law and religion, on the one hand, and notions of malice in the law, on the other. But malice’s legacy was questioned beginning in the 19th century with Holmes (and others including J.F. Stephen) and then repudiated more decisively in the work of 20th century tort law giants like William Prosser and criminal law giants like Herbert Wechsler. And many others.
This paper attempts to reconstruct a historically correct, conceptually coherent, and normatively compelling case for malice’s reintroduction into the law of punitive damages. It also speculates about the utility of this reconstructed account of malice in other fields, especially criminal law. Finally, though this paper does not approach this topic, it does suggest the possibility of reconstructivism as a broader theory of law and legal development, something about which I hope to write in the future. Here is the abstract.
Punitive damages present two related puzzles. One concerns their object. If they are punitive, their object is to punish tortfeasors. If they are damages, their object is to compensate tort victims. If they are both, as the Supreme Court has recently stated, the problem is to reconcile these different objects in applying them. A second puzzle involves their subject. Punitive damages are awarded for egregious wrongdoing. But the nature of that egregiousness is nebulous and contested, implicating many poorly understood terms. The two puzzles are connected, because the subject of punitive damages will inform their object. Once we know the type of wrongfulness that punitive damages deal with, we can understand better whether and how they are punishing, compensating, or both.
This Article reconstructs one of punitive damages’ central subjects: malice. In so doing, it clarifies one key object of punitive damages: to offer redress to a victim of cruelty. Malice is a ubiquitous textual element in the state law of punitive damages. But there has been little scholarly commentary about what malice means for punitive damages. Drawing from the common history of tort and criminal law, this Article identifies two core meanings of malice: a desire or motive to do wrong, and a disposition of callous indifference to the wrong inflicted. Though distinct, these meanings broadly coalesce in the concept of cruelty. The Article argues that this reconstructed account of the wrong of malice represents a powerful justification for awarding punitive damages. Malice as cruelty as a justification for punitive damages also fits within a broader view of tort law as redress for specific private wrongs. But malice as a subject of punitive damages clarifies and enriches this account of their object. A victim of a tort done with malice, and who is aware of it, has been wronged more gravely than a victim of a tort done without malice and is therefore entitled to greater redress.
Wednesday, December 2, 2020
Following up on Rick's post below, my colleague, Mark Movsesian, and I have a podcast about Carter Snead's book as part of our Legal Spirits series. We discuss some of the major themes in the book and talk a little bit about Carter's chapter on assisted reproductive technology, long a special area of his expertise. Carter was kind enough to speak with our seminar students this semester as well, so we had a double dose of the book and its arguments.
Wednesday, November 11, 2020
I want to call a little attention to this new monograph by Professor Lorenzo Castellani, L'ingranaggio del Potere ("The Gear of Power"). The book is
just published and it is in Italian. But it intervenes insightfully in debates about political power that ought to be of great interest to American and British scholars of administrative law, though its primary focus is on "Eurocracy."
The book is a sweeping study (in just a few pages)--a history of ideas or, as he puts it in an early chapter, an analysis of the "real thing"--of how "competence" and "technical expertise" has come to dominate our political world. It helpfully contrasts the realms of "politics" and "policy." While we often think of these as united, or even one and the same, Castellani distinguishes them, locating the latter squarely as the province of the experts and not really about democratic politics at all. But policy has "hidden itself" well as derived from politics in modern democratic societies. The thesis: "In advanced modern societies, the principle of aristocracy has a much greater weight in the organization of those societies than we are commonly led to believe or admit. In contemporary democracies, this aristocratic element is based on competence--that is, on the specialized knowledge of individuals supplied and certified by the structure itself through educational institutions, programs of study, titles, exams, and competitions. This aristocratic-hierarchical principle exists together with the democratic-representative principle from which, in recent decades, it has progressively eroded significant spaces." (25)
If this sounds in some ways reminiscent of James Burnham's early work in The Managerial Revolution, it is. Indeed, I think Castellani has taken on a good deal of Burnham. But the applications he sees in Burnham's work (and the work of others including Daniel Bell) for the "techno-democracies" that rule us now, and that are nevertheless the subject of such controversy, are fresh and insightful.
American publishers take note! This book deserves a good English translation. It has a lot to say to Anglo-American concerns today.
Monday, October 12, 2020
I have an essay at First Things that lays out my understanding of what Judge Amy Coney Barrett has written about stare decisis and the fact of methodological disagreement in constitutional interpretation. The essay in part aims to correct this grossly misinformed and error-saturated piece published at Commonweal. But in much larger part, it tries simply to do justice to Judge Barrett's view in her scholarly work. A bit:
Judge Barrett’s principal writing on this problem can be found in Precedent and Jurisprudential Disagreement and Originalism and Stare Decisis, although she has discussed these matters in other places as well. Her view can be summarized as originalist but also committed to the presumption of stare decisis force for existing precedent. She has elaborated a comparatively “weak” or “soft” presumption in favor of stare decisis in constitutional cases, but it is important to be clear about just what that means.
For Judge Barrett, the fact of methodological pluralism about fundamental issues in constitutional methodology (for example, in the disagreements between originalism and varieties of non-originalism) makes a comparatively soft stare decisis presumption attractive. This pluralism has implications for how judges view basic doctrinal error, because such error is likely to concern foundational methodological differences and deep jurisprudential commitments. In such situations, Judge Barrett writes, “stare decisis seems less about error correction than about mediating intense jurisprudential disagreement.”
As to precedents where a judge has a deep disagreement about method, it is not realistic or desirable, Judge Barrett says, to expect the judge to abandon her commitments simply for the sake of preserving those precedents. That would be asking the judge to betray her core judicial philosophy, something that would do no favors to judicial legitimacy, perceived or actual. Nevertheless, “the preference for continuity disciplines jurisprudential disagreement,” requiring from judges who would abandon stare decisis “both reason giving on the merits and an explanation of why its view is so compelling as to warrant reversal.” If these very strong reasons and explanations do not exist, then “the preference for continuity trumps.” New coalitions of judges (and at the Supreme Court, it is groups of judges that count) who argue for new interpretations are put at “an institutional disadvantage” by stare decisis, but they are not categorically disabled by it.
Judge Barrett’s “soft stare decisis” approach, in sum, accommodates the fact of methodological pluralism and deep substantive disagreement with the need for legal stability. The presumption favors existing doctrinal arrangements but permits challenges to them. To say that it is “soft,” therefore, is not at all to say that it encourages “constant upheaval” or wild unpredictability. To the contrary: Under a soft presumption of stare decisis force, “[t]he Court follows precedent far more often than it reverses precedent.”
This view is very much in line with the Court’s current approach to the force of stare decisis. And it flows not so much from Judge Barrett’s originalism, but instead from her view that stare decisis poses a problem for all theories of constitutional interpretation. She is “soft” on stare decisis not because she is an originalist, but because people disagree in good faith about how to interpret the Constitution.
Wednesday, September 30, 2020
Here is the latest over at the Liberty Fund in my small efforts to play with what a fusionist interpretive approach to constitutional interpretation--integrating originalism and what I have called traditionalism--might look like and require. The occasion is a reply to some fine essays by Professors Randy Barnett, Jesse Merriam, and Ilan Wurman, who were responding to this piece on stare decisis.
I find these more extended exchanges useful. You get a chance to really talk to people a bit more, so to speak. Here's a little bit:
Originalists moved by Professor Barnett’s imperative [to align doctrine with original meaning] would be well-advised to attend to the difference between, on the one hand, an ancient and enduring cluster of precedents reflecting practices extending back to the founding (and even before it) and, on the other, a comparatively recent, one-off, “unmoored” (as Justice Thomas put it) decision that runs counter to such enduring practices. This distinction is important for at least two reasons, one theoretical and the other practical.
First, at least in cases where meaning is uncertain, old and enduring precedential lines carry greater epistemic weight about those meanings than do recent and isolated doctrinal innovations. Precedents proximate in time to the founding and repeatedly entrenched thereafter for centuries in subsequent doctrine and practice are more powerful evidence of permissible, even if not mandated, textual meanings, than precedents that do not share these qualities. True, they are not conclusive evidence. An ancient and enduring line of doctrine may have gotten it wrong, and wrong repeatedly, from the start. But for the many constitutional provisions where meaning is uncertain, and for situations in which there may be several interpretations that are not “demonstrably erroneous,” originalists concerned about epistemic warrant ought to grant such precedential lines a presumption of veracity.
Consider the bizarre and hubristic alternative: a world where early judicial interpretations, and the lasting and concentrated lines of precedent generated by them, are given no respect at all, or are even presumed to be wrong, and it is only the latest-arriving “knowledgeable scholars,” so much more distant in time and legal culture, who can see clearly and are owed epistemic deference. Judges evaluating practices close in time to the founding have access and insight that scholars who research original meaning today should acknowledge and respect. They are much more likely than we are to share in the political and cultural ethos of their own time. And where an early understanding has endured and been repeatedly reaffirmed for generations, thereby increasing its law-like properties, the respect we owe it likewise should increase.
Second, the justices whom originalists admire most do tend to invest ancient and enduring precedential lines with qualitatively different stare decisis force than recent, novel, and unmoored precedents. As I indicated in my first essay, this is something that judges inclined toward originalism have appreciated better than their scholar counterparts. I was therefore puzzled by Professor Barnett’s claim that “some justices” today may be eager to overrule D.C. v. Heller and Citizens United v. FEC, just as other justices of the Warren and Burger Court eras swept away ancient and longstanding precedents that obstructed their progressive political aims. That may be true, but I would not have thought that originalists would take these justices to be their models, let alone to vindicate Professor Barnett’s argument that Supreme Court justices “must be free” to vote as they like whenever they like, stare decisis notwithstanding.
Against Professor Barnett’s claim that Supreme Court justices “never have” treated stare decisis as especially powerful in the case of old and enduring precedents, I point back to my initial essay, where I described the considerable “buy-in” that already exists from the justices whom originalists admire and would like to win over—including Justice Thomas, Justice Gorsuch, and Justice Alito in their respective opinions in Gamble, Mesa, and Ramos. If the Chief Justice can be shown the error of his “insidious” conception of stare decisis in June Medical, as Professor Wurman puts it, then perhaps he, too, might be persuaded to buy in.
In highlighting age, deep roots in common practice, and enduring continuity—that is, in emphasizing the jurisprudential traditionalism of constitutional law—these justices are telling originalist scholars something important about the virtue of stability in constitutional law, and about its nature. As Judge Amy Coney Barrett has indicated, Justice Scalia likewise long defended the “stare decisis” of American political and cultural traditions against the doctrinal innovations of judges (and scholars) entirely disconnected from, and sometimes even disdainful of, those traditions. “In an important sense,” Judge Barrett argues, “originalism can be understood as a quintessentially precedent-based theory, albeit one that does not look primarily to judicial decisions as its guide.” Justice Scalia is no longer on the Court, of course. But others may come who have been influenced by his legacy. Originalists have reasons to listen to what these judges are telling them.