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.
Tuesday, November 6, 2018
I'm pleased to announce that our Center's new podcast series, Legal Spirits, is underway!
In this first podcast, Mark Movsesian and I chat about the "British Masterpiece" case, Lee v. Ashers Baking Co. decided by the UK Supreme Court a few weeks ago, and we speculate about what its reasoning might suggest for future cases in the US of this kind.
Legal Spirits podcasts will address a broad range of interesting cases, issues, and ideas involving law and religion. Look for our next one about the recent 4th Circuit Establishment Clause cross case just taken by the Supreme Court, the consolidated The American Legion v. American Humanist Association/Maryland-National Capital Park and Planning Commission v. American Humanist Association.
Sunday, September 16, 2018
We are delighted to host Professor Robert Louis Wilken (the author of one of my favorite books on the history of the early Church) tomorrow to discuss his forthcoming book, "Liberty in the Things of God."
Professor Wilken's presentation is the first at our Colloquium in Law and Religion this fall, a seminar at St. John's Law School that my colleague, Mark Movsesian, and I co-teach. More soon on the substance of Professor Wilken's very interesting new book concerning the intellectual origins of the idea of religious freedom.
Monday, September 10, 2018
Kevin Walsh and I have this year's Supreme Court roundup at First Things: Kennedy's Last Term. In the piece we cover some of the major decisions of the last term, including First Amendment cases (Masterpiece, NIFLA, Janus), cases concerning what we call "the influence of social, technological, and moral change on Supreme Court doctrine" (Wayfair, Carpenter, Murphy v. NCAA), and political gerrymandering/judicial limits cases (Gill, Benisek), as well as a short comment on Trump v. Hawaii.
Something from the conclusion:
What, then, should we expect from the post-Kennedy Court? Perhaps more of the same. There was not a single 5–4 decision this term in which Justice Kennedy joined with the more liberal wing of the Court. That has never before happened on the Roberts Court. And there were fourteen 5–4 cases in which Kennedy joined with the four more conservative justices to form a majority, including First Amendment cases such as Janus and NIFLA, separation of powers cases like Trump v.Hawaii, political process cases involving political and racial gerrymandering, and a range of statutory interpretation and business cases. This record suggests that, should Judge Brett Kavanaugh be confirmed, we ought to expect a fair amount of continuity rather than radical change.
But in other major areas—areas that happen not to have been addressed this term—the change may be more substantial. Consider, for example, the constitutional law of abortion. Here, Kennedy’s replacement might make a difference, particularly if there is a possibility that a Justice Kavanaugh might join with four colleagues in ending the regime of constitutional abortion law initiated by Roe v. Wade.
Social conservatives have been disappointed before. The Court’s first major abortion case after Justice Kennedy joined the Court was the 1989 decision Webster v. Reproductive Health Services, where it seemed there might be five votes to overrule Roe. Chief Justice William Rehnquist wrote an opinion for four justices that purported to “modify and narrow” Roe, but Reagan-nominated Justice Sandra Day O’Connor went her own way, introducing the “undue burden” standard that has remained the law until today. Scalia, meanwhile, lamented that this missed opportunity to reverse Roe meant that “the mansion of constitutional abortion law, constructed overnight in Roe, must be disassembled doorjamb by doorjamb, and never entirely brought down, no matter how wrong it may be.” Scalia was farseeing. Four years later, in Planned Parenthood of Southeastern Pennsylvania v. Casey, Kennedy joined with O’Connor and Justice David Souter to preserve what they called “the central holding” of Roe.
We are guardedly optimistic that Kavanaugh’s confirmation will eventually result in the rejection of Roe v. Wade. But nobody should expect a quick or complete demolition of constitutional abortion rights. Caution is in order because of both internal Court dynamics and external pressure on the institution.
The shift on the new Court should be measured not by the distance between Kennedy and Kavanaugh, but between Kennedy and Roberts. On a multi-member Court, the views of the median justice matter most in the close cases implicating the culture wars. And Roberts cares deeply about public perceptions of the Court’s legitimacy. The same concerns that motivate Roberts to embrace minimalism more broadly, as in the cases this term about partisan gerrymandering and sales taxes, will likely mean even greater caution in these hotter and angrier areas of constitutional law.
Neither should we forget that the result of overruling the Roe/Casey regime is no panacea. It would simply lift restrictions on state legislation. But that is hardly always desirable. We can surely expect some, perhaps many, states to follow the lead of Massachusetts, where legislators passed a NASTY (Negating Archaic Stereotypes Targeting Young) Women Act that repealed abortion restrictions that might in theory have come back into force if Roe/Casey were overturned. New York’s governor has made extensive abortion rights a rallying cry of his campaign for reelection.
Just as the damage done by Roe/Casey is not exclusively legal, neither will it be undone by legal means alone. The Court and dominant cultural opinion shape each other, and the arrow of influence runs in both directions. However much “the mansion of constitutional abortion law” may be dismantled, the constitutional rot at its foundation is the result of powerful cultural forces. Let us not put our trust in judges any more than princes, not only because they are fallible, but also because judges are meant to judge, not to save us from ourselves.