Thursday, April 16, 2015

Judges Making the Law (With a Little Blasphemy Discussion)

We hear the term "judicial activism" often bandied about. The term has a number of different meanings, one of which is judges "making up the law." Whether such is good, I won't address. Rather, I note I agree with Erwin Chemerinsky and Catherine Fisk that such is nothing new.

The common law was built on judges making the law under the auspices of "discovering" it by looking up at the “brooding omnipresence in the sky” as Justice Oliver Wendell Holmes once derisively put it.

Justice Scalia, however, argues in this article that post-Holmes' debunking of the metaphysics behind the common law and post-Erie Railroad Co. v. Tompkins (where the Supreme Court announced there was no general federal common law), little justifies judges making law:
But democracy has overtaken all that. Modern governments, or modern governments in the West at least, are thought to derive their authority from the consent of the governed, and the laws they prescribe are enacted by the people’s representatives. Such a system is quite incompatible with the making (or the “finding”) of law by judges and most especially by unelected judges. Even in state courts, it is a rare case that does not involve interpretation of an enacted text. And federal courts have, since the decision of Erie R.R. v. Tomkins [sic] in 1939, completely abjured common-law powers except in a few limited fields such as admiralty; they do not pretend to have the power either to “find” or to “make” a law unevidenced by enacted text or (in cases coming within their diversity jurisdiction) by the text of state judicial decisions.
Scalia may be right. He's certainly right that state judges making law under the auspices of the uncodified "common law" that traces back in an unbroken line to England before America was founded is rare. Though it was much less rare during the time of the American Founding.

Though, when judges do use their common law powers to "make the law," as opposed to interpret a text, such uncodified state law is lower in hierarchy (as in higher law trumps lower law) than a simple state statute. As Walter Berns put it in his classic "Making Patriots":
But there was no disagreement about the place of the common law. Indeed one of the first things done by the states after independence was to declare (here in the words of the New Jersey constitution of 1776) that “the common law of England, as well as so much of the statute law, as have been heretofore practiced in this Colony, shall remain in force, until they shall be altered by a future law of the Legislature; such parts only excepted, as are repugnant to the rights and privileges contained in this Charter [or constitution].”
That section of Berns' book also discusses the notion that "Christianity" is part of the "common law." Jefferson didn't agree; but some other Founders did. Jefferson essentially blamed the "judicial activists" of his day for that one. But according to the theory of "modern government" to which both Scalia and Berns allude, the common law is a very weak place to rest a "fundamental" principle. It can be trumped by a simple statute or future court decision.

[We debate whether such even exists; but if it does, we can't amend the "laws of Nature and of Nature's God." We can amend the Constitution, but it's very difficult to do. Statutes are much easier to amend. And common law is the weakest of these sources.]

The notion that "Christianity is part of the common law" thus slowly died, mainly in the 19th Century. For instance, in 1837, in one of the few blasphemy cases ever tried in the United States after the Constitution was ratified (I think there were four of them), the Delaware court in The State v. Chandler claimed:
If in Delaware the people should adopt the Jewish or Mahometan religion, as they have an unquestionable right to do if they prefer it, this court is bound to notice it as their religion, and to respect it accordingly. 

It will be seen then that in our judgment by the constitution and laws of Delaware, the christian religion is a part of those laws, so far that blasphemy against it is punishable, while the people prefer it as their religion, and no longer. The moment they change it and adopt any other, as they may do, the new religion becomes in the same sense, a part of the law, for their courts are bound to yield it faith and credit, and respect it as their religion. Thus, while we punish the offence against society alone, we leave christianity to fight her own battles, ...
In essence, it claimed a secular rationale for blasphemy prosecutions.

[In one of the other few blasphemy cases, Ruggles v. People of New York, decided in 1811, Chancellor Kent claimed the leaders of non-Christian religions were "imposters."]

Today, most common law bodies of law still relevant have been codified into statutes. But judges are expected to interpret those statutes and sometimes "fill in gaps." Legislatures, in turn, can rewrite the statutes if they don't like how judges have been interpreting them.

One question I ask: According to Scalia's theory, was there ever a "golden age" in America where judges weren't improperly making the law? Scalia seems to concede that prior to Erie, when judges more often "made law" under the auspices of the "common law," judges engaged in something whose justificatory foundation was as solid as that of "Divine Right of Kings." And of course, we know that the 20th Century is the hallmark of "judicial activism."

The record of the judiciary in the 19th Century wasn't spotless either. That period gave us, among other things, Dred Scott, Plessy v. Ferguson, the Slaughterhouse cases and the Holy Trinity case.

But I don't think the few rotten apples spoil the bunch. Most of the present Supreme Court cases are non-politicized; they are boring and uneventful. The newsworthy cases that are politicized with presently Justice Kennedy breaking the tie are the exception. But the exceptions are significant.

My assessment of the judiciary is that it is not unlike the two other branches of government: Don't look for perfection because you won't find it.

Sunday, April 12, 2015

Roundtable on the Privileges or Immunities Clause of the Fourteenth Amendment

The audio below is fairly crappy (alas). But these are the "go to" guys -- Kurt Lash (Illinois), Philip Hamburger (Columbia), and Michael McConnell (Stanford) -- for the debate:

Friday, April 10, 2015

Barnett v. Lash on whether the EC Incorporates on Originalist Grounds

From Randy Barnett here. A taste:
So you can imagine that I became a strong supporter of the separation of church and state. I still am, but with two important and relatively recently acquired caveats. The first is that, since I became an originalist in the late 1990s, I have paid closer attention to the text of the Establishment Clause of the First Amendment. Although I have not written on the subject, nor studied it with the seriousness required to make me a true expert, I have come to believe that a constitutional bar on established churches is not a bar on all religious expression in the public sphere. For example, federal offices may close on Christmas, and prayers may be said in Congress before a session begins.
Perhaps more importantly, unlike the protections of the rights of freedom of speech, press, assembly and the free exercise of religion, I no longer think that the Establishment Clause of the First Amendment concerned an individual right or liberty. Instead, as Justice Thomas has insisted, “Congress shall make no law respecting an establishment of religion” meant that Congress could neither establish a national religion nor “disestablish” a state religion.

In this way, the succinctly-worded First Amendment is both antiestablishmentarian at the federal level and antidisestablishmentarian at the state level. And if it did not protect an individual right, the Establishment Clause did not refer to a right that was also among the “privileges or immunities of citizens of the United States,” which was secured against violation by state legislatures by the 14th Amendment. It was not, for example, among  “the personal rights guarantied and secured by the first eight amendments of the Constitution” listed by Senator Jacob Howard in his speech to Congress explaining what the Privileges or Immunities Clause protects.
But also see Kurt Lash's classic 1995 Law Review article to the contrary.  A taste from the abstract (I can't cut and paste from the PDF of the paper):
These conflicting approaches are linked by a common assumption: The historical period surrounding the adoption of the original Establishment Clause is directly relevant to determining the intent behind the incorporated Establishment Clause. Such an assumption, however, places the Founding cart before the Incorporation horse. Incorporation doctrine assumes that, at some point, the people changed their collective mind about the role of federalism in the protection of individual liberties; what was once left to state discretion is now restricted by the Fourteenth Amendment. But if the people changed their mind about the role of federalism in the promotion of individual liberty, perhaps they also changed their mind about the role of the Establishment Clause. In fact, we are not the first generation since Madison wrote his Memorial and Remonstrance to question the melding of the scepter and the cross. Obscured in the search for the Founders' intent are the subsequent struggles over the meaning and value of the Establishment Clause. In the years following the adoption of the Bill of Rights, state after state grappled with the issue of civil power over the subject of religion. Slowly, through a long series of cases and controversies, the idea evolved that citizens ought to be free from government-imposed religious establishments.
Kurt Lash and Akhil Amar stress a particular dynamic forgotten in the search for "original meaning." If it's true that the Bill of Rights should be incorporated via the 14th Amendment -- and there is some good evidence for it (see the above link to Sen. Howard's speech) -- the "original" period for understanding the text is just after the Civil War, not during the original Founding.

In other words, it's not a late 18th Century understanding of the First Amendment; it's a mid-19th Century understanding that is the original one, at least pertaining to what is incorporated through the 14th Amendment.

The strange result -- and I can't remember how Amar grapples with it -- is that the First Amendment might have a different original understanding when applied directly to the Federal government (the late 18th Cen.) than as applied to states via the 14th (the mid-19th Cen. understanding).

Tuesday, March 31, 2015

Volf's Controversial Comparison

Miroslav Volf is one of the most distinguished and well respected Christian thinkers in the world. I generally like what I've seen from him. I do, however, think his comparison we see below was overly dramatic.
[MV:]I think it is an attempt to assert Islam as a political religion as a unity of religion and government. Now that’s been a way religions have functioned throughout history–from Constantine until recently. America was founded by folks who thought like this.
RNS: America was founded by folks who thought like Islamist extremists?
MV: Like many Islamist extremists, yes. Which is to say, they believed God would bless this new experiment if we integrate our obedience to God’s laws and we ensure that this is indeed a city set on a hill.
[MV:]Think of John Winthrop, his theory of the role of the state and the laws against blasphemies, adulterers, and idolaters.
[MV:] I love America, but its first founders, like Muslim extremists, advocated killing for blasphemy, adultery, idolatry.
I also disagree that the Puritans were the "Founders" of America as opposed to the "Planters."

Tuesday, March 17, 2015

So Maybe It Was the Unitarians After All...

Who first gave us religious liberty. And from Transylvania of all European places. From Wiki:
March 18th (1568): The Act of Religious Freedom and Conscience (Edict of Torda) was issued by (Unitarian) Prince John Sigismund of Transylvania, instituting in his principality the path-breaking idea of religious freedom. The Edict of Torda was revolutionary for its time.
Here is a pretty picture of it.

Saturday, March 14, 2015

What American is NOT About


Friday, March 13, 2015

What I see as the Political-Theological Contribution of the Enlightenment to the American Founding

There has been a "counter-Enlightenment" push that seeks to downplay its importance to the contributions of the American Founding while looking to credit earlier more traditional sources. With this we see a tendency that prefers one's own with focused importance.

That is, a scholar imbibed in the rich intellectual traditions of Judaism might focus on the Hebraic sources, a Baptist on their contributions, the Calvinists on theirs, and Roman Catholics can find "accidental Thomism" from a Protestant people who were by in large, anti-Roman Catholic.

And there certainly is a strong kernel of truth to each critique. The individual ideas that became en vogue by the Enlightenment religionists tended not to be new. For instance, freed from the constraint of the Magisterium and with each believer a priest entitled to interpret scripture for himself, many notable Protestants became Arians. After all, the Bible never specifically uses the term "the Trinity."

Arianism was the dominant theology of the 18th Century enlightened unitarians. But Arianism is old. Quite old indeed.  Even the more radical forms of unitarianism or "Christian-Deism" that for instance, Thomas Jefferson might endorse were found in the early Church. Jefferson didn't cite Marcion much, but their personal theologies were quite similar.

Speaking of Jefferson below is a quotation of his that typified the "Enlightenment" perspective on Christianity:
Were I to be a founder of a new sect, I would call them Apriarians, and after the example of the bee, advise them to extract honey of every sect.

-- Thomas Jefferson to Thomas B. Parker, May 15, 1819.
Lest you think I cite Jefferson as some kind of "outlier," here's a more mainstream orthodox Trinitarian Christian, albeit a universalist, making a similar point:
It would seem as if one of the designs of Providence in permitting the existence of so many Sects of Christians was that each Sect might be a depository of some great truth of the Gospel, and that it might by that means be better preserved. Thus to the Catholics and Moravians he has committed the Godhead of the Saviour, hence they worship and pray to him; to the Episcopal, Presbyterian, and Baptist Church the decrees of God and partial redemption, or the salvation of the first fruits, which they ignorantly suppose to include all who shall be saved. To the Lutherans and Methodists he has committed the doctrine of universal redemption, to the Quakers the Godhead and influences of the Holy Spirit, to the Unitarians, the humanity of our Saviour... Let the different Sects of Christians not only bear with each other, but love each other for this kind display of God's goodness whereby all the truths of their Religion are so protected that none of them can ever become feeble or be lost.
-- Benjamin Rush, "Commonplace Book," August 14, 1811. Corner, Autobiography of Rush, 339-340.
In short, the "enlightened" Protestant Christian used his own "judgment"-- his "reason" or otherwise -- to decide for himself how to interpret the faith, in what doctrines to believe, which parts of the Bible are inspired, which books, in fact, belong in the canon, and what political principles ought be derived from a "proper" understanding of theology.

So how did this impact the relationship among Enlightenment, Christianity, and the American Founding? Everything we "value" about the political-theology of the American Founding (and some things that we don't) probably can be found in bits and pieces during earlier more "traditional" periods. But it didn't all come together until these enlighteners used their reason "to extract honey of every sect" as Jefferson put it, at the exact moment they did. During that period historians term "the Enlightenment."

For instance, the "Calvinist resisters" (though not Calvin himself) might have something to offer like "rebellion against tyrants is obedience to God." Though, they were woefully deficient on religious liberty. Likewise, the Thomists incorporated a theistic grounding for Aristotelian rationalism but likewise were deficient on religious liberty and other matters.

Roger Williams and the Quakers were considered novel and eccentric when they innovated the "Christian" case for religious liberty. (That's where one had to go for this teaching, not the Calvinist resisters or those Protestants who borrowed from the scholastics.) The enlighteners of the 18th Century, using their reason, took from them this principle and combined it with what they saw the best from the other traditions to deliver the liberalism that founded America.

History Professor Caroline Winterer discusses the American Enlightenment