Over at the Law and Religion Forum, my colleague Mark Movsesian and I are hosting an online symposium over the next month or so on Professor Vincent Phillip Muñoz's paper, "Two Concepts of Religious Liberty: The Natural Rights and Moral Autonomy Approaches to the Free Exercise of Religion." Phillip's complete paper was recently published in the American Political Science Review, but he summarizes it nicely in this opening post. Here's a bit to give a general flavor of the argument:
The founders rejected the language of toleration, because toleration presumes that the state possesses legitimate authority over religious exercises. Instead, the founders recognized that the right of religious liberty inheres in the individual prior to state recognition. Individuals possess a right of religious free exercise on account of their created nature and their pre-political obligations to God. That is why it is a natural (as opposed to an acquired) right....
That the founders understood worship according to conscience to be an inalienable natural right can be seen in the founding-era state declarations of rights, the founders’ philosophical defenses of religious liberty—including Jefferson’s Virginia Statute for Religious Liberty and Madison’s Memorial and Remonstrance—and in influential political sermons of the time....The inalienable character of the individual’s authority over worship meant that the state could never legitimately acquire sovereignty over religious exercises per se.
Religious exercises, accordingly, remain beyond the jurisdiction of government. This means that state officials lack legitimate authority to directly prohibit, mandate, or otherwise regulate religious exercises as such....[T]his lack of sovereignty also means that judges—who, too, are agents of the state—lack authority to balance elements of the inalienable natural right to religious liberty against other state interests. The act of balancing itself assumes jurisdiction: The “balancer” places competing rights and interests on a scale. Even if the scale is tilted toward religious freedom (as it is under the Sherbert Test), the act of weighing assumes an authority that the founders deny. Judges may not exercise such authority because the state itself lacks jurisdiction over religious exercises as such....
Largely because of Sherbert, we tend to think that any belief or action motivated by religion falls within the First Amendment’s protections. The founders’ understanding is more nuanced and more limited. The founders distinguished core inalienable elements of religious free exercise from what we might call religious “interests.”
The inalienable core includes the “freedom to embrace, to profess, and to observe the Religion which we believe to be of divine origin,” to use Madison’s language from Article 4 of the Memorial and Remonstrance. These core elements of religious worship remain beyond the state’s direct jurisdiction. Religious “interests” include activities of faith that fall within the state’s otherwise legitimate sovereignty. When exercising its legitimate authority and pursuing otherwise legitimate civic ends, the state may burden religious “interest.” It also may relieve burdens on religious “interests” through discretionary exemptions....
If the Free Exercise Clause only protects against direct state restrictions on and regulations of religion, what protections does it really offer?
[My response is] that the founders’ understanding does not protect against “indirect” religious burdens—that is, laws and regulations such as a military draft that do not target or mention religion as such but, when implemented, burden some religious individuals or institutions. I must acknowledge that, in the context of our modern regulatory state, the founders’ natural rights understanding may not seem adequate to protect against all the different ways the state encroaches on the lives and interests of religious individuals. This observation, I note, is what led Justice William Brennan to eschew the framers’ approach and adopt the Sherbert Test over fifty years ago.
Whether the founders’ approach is adequate for our times, however, is a different question from what the founders’ approach is. In the larger context of human history, moreover, denying the state authority over religious exercises is a monumental achievement in the service of human freedom. We often speak of “limited government.” We do not often remember that the fundamental limit the founders imposed on government was to deny it religious authority. That American governments still do not typically attempt to directly prohibit, prescribe, or regulate religious exercises is a testament to the founders’ achievement. We need only to look to the Middle East to appreciate what the founders bequeathed us....
Church-state scholars are so accustomed to assuming that the right of religious liberty means exemptions that we tend to fail to consider the obvious alternative: that the state may not prohibit or otherwise regulate religious exercises as such. The founders did not share our presumptions. At the level of constitutional design, rather than having judges protect religious liberty via the superintendence of allegedly burdensome state action, they sought to demarcate that a relatively narrow but profoundly important area of human life remained outside of the sovereignty of the state.
Stay tuned for responses from Gerard Bradley (Notre Dame), Donald Drakeman (Cambridge), Matthew Franck (Witherspoon Institute), George Thomas (Claremont McKenna), Jack Rakove (Stanford), and Corey Brettschneider (Brown), with a final reply by Phillip thereafter.
Thursday, August 25, 2016
I have a reply to the essays of Professors Bernstein, Levinson, and Stoner up at the Liberty Fund blog. It is the last in this series, and I've enjoyed it very much. Here is a portion from the middle, responding to some of Professor Levinson's challenging remarks:
It is a somewhat different thing to reply to Professor Levinson, who has earned more attention in this reply by being considerably less sympathetic than my other interlocutors to the value of exploring the relationship of tradition in law. He makes three primary points: 1) My essay was pitched at a sufficiently abstract level so as to be criticized with the aphorism that we are all traditionalists in America so long as we are essentially liberal Progressives (or libertarians). 2) American Founders such as the authors of the Federalist Papers were revolutionaries, not traditionalists, so that the predominant American political-legal tradition is liberal Progressivism, if not radicalism. 3) To the extent a non-liberal-Progressive traditionalism has been part of American intellectual history, it has been responsible for terrible things—slavery most prominent among them—that have rightly been abandoned.
As to the first point, it is difficult to think of anybody (not even Professor Levinson’s traditionalist incarnation, Edmund Burke, would qualify) who holds that a positive view of tradition implies or requires stasis or the total absence of change. Even for those, like Burke, well-disposed to adhere to past patterns of behavior, it is necessary to devise new ones if only because the situations to which those traditional patterns must be applied are different than those that preceded them—“confirming the wisdom of what remains,” as Professor Stoner has it. At any rate, though the relationship between tradition and social change is complex, at least this much may be said: It is not a one-sided affair. It is not all tradition and no change or progress. Otherwise, we would all be liberal Progressives.
Perhaps the differences between Professor Levinson and me are therefore more matters of mood, disposition, or emphasis. He lights up at those moments in American culture and history in which people exercise their freedom to “denounce” the inheritance of the past. It is probably fair to say that I find such moments less electrifying, though I agree with Professor Levinson that they do exist.
I offer the Madison of the National Bank controversy. He counters with the Madison of Federalist 14 (though I might observe that a “decent regard to the opinions of former times” is not the same as an indecent contempt for them).
I could parry with language in Federalist 15 (“experience” as “the best oracle of wisdom”) or the very final Federalist 85 (“No human genius, however comprehensive, is able by the mere dint of reason and reflection to effect it. The judgements of many must unite in the work.”). Or even Federalist 2, in which John Jay notes with some pride that “Providence” has seen fit to give the country to a people “very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long ad bloody war, have nobly established general liberty and independence.”
Doubtless Professor Levinson would have a riposte at the ready, and so it would go on. He characterizes these as internal “contradictions” within The Federalist but they may simply be different features of the moral and political experience of these three authors, each representing its own portion of wisdom. Many of them do not vindicate liberal Progressivism in the least.
In fact, it severely distorts the American Founding to call it either committed to a liberal Progressive ideological program or rabidly radical. True, there were elements of the Old World that were cast off by the new nation, but as historians from Forrest McDonald to Eric Nelson have (in their own ways) shown, the temper of the American Founders may have been even more traditionalist than their English progenitors. Early Americans were the inheritors of an English constitutional traditionalism that was centuries old. Their revolution was motivated by the Crown’s denial of what they perceived as their traditional, ancient rights as Englishmen, rather than by the desire to denounce and exchange those rights for something altogether and radically different. What they desired for themselves was what they already knew well as the tradition of self-government in liberty.
The English Bill of Rights was a model for ours, just as the Act of Union was a model for our federalism. As Greg Weiner has put it in his fine recent essay for Law and Liberty, “Of course, the colonists were deeply affected by the ideas of the Enlightenment, as they were by the ideas of antiquity (far more essentially a staple of their curricula).” Tradition and change were at least equally parts of their political and intellectual constitution. As they should be (but regrettably are not) of ours.
Friday, August 19, 2016
The final response to my essay on law and tradition has been posted over at Liberty Law, and it is superb: Professor James 
Stoner's Legal Realism, Legal Revolution. Jim's work has been formative for my own learning about the relationship of the common law tradition and American constitutionalism--and in particular about the erroneous and all-too-common characterization of constitutional law as "judge-made law." It's wonderful to have his contribution. A bit from the end of Jim's piece:
Just a little over two months after praising Americans for discarding a “blind veneration” of legal tradition, Madison wrote a most interesting passage in Federalist 49. In that February 2, 1788 essay he explained the need for the Constitution to earn what I infer must be enlightened “veneration” (he repeats the noun, without an adjective) from the people. This would come over time, as the system established by the Constitution demonstrated its capacity to insure good government. I think Madison had in mind a respect that inclines people to work within the system to seek improvements, and an inclination to wonder whether even what appear to the most agitated of us to be “stupidities” or “rigging,” might not have a reasonable purpose, even if that purpose has come to be overlooked or forgotten.
“In a nation of philosophers,” he continued, “this consideration ought to be disregarded. A reverence for the laws would be sufficiently inculcated by the voice of enlightened reason. But a nation of philosophers is as little to be expected, as the philosophical race of kings wished for by Plato.” The impossibility of such a nation, moreover, is not accidental, but somehow essential, if the limits of human reason are understood. As Madison explains a few papers later, “Had every Athenian citizen had been a Socrates, every Athenian assembly would still have been a mob.”
DeGirolami seems right on point in describing the anti-traditionalism of the legal academy today and, since this has been the case for more than a generation, of the bar and bench that they have trained. The thirst for novelty, driven by academic practices that ultimately imitate the natural sciences without showing anything like scientific progress, except perhaps to partisans of dominant opinion, has corrupted the respect for tradition that once imbued the law and that—let me repeat by way of emphasis—made possible genuinely successful reform.
Perhaps, as DeGirolami hopes, something can be salvaged of the common law tradition, in its new guise as “judicial process,” to guide pragmatic reformers who don’t want to scrape their shins on the furniture—even if the brightest and most ambitious eschew Holmes’ path of “profound interstitial change” in favor of openly promoting causes they think noble. I confess to being a bit skeptical that tradition can be recovered as a formal category and an independent good apart from the actual, concrete tradition of common law and constitutionalism which we inherited, developed, and now seem eager to spend down. I doubt, too, whether that tradition could be restored unless the difficult philosophical work were done inside the law schools and outside of them—the work that would be needed to revive the thought, the experience, and even the faith in human reason out of which our tradition first emerged.
Monday, August 15, 2016
Professor Sandy Levinson has an enjoyable and highly critical take on my essay about law and tradition. It's a pleasure and an honor to be in conversation with him. I'm already at work on my reply. Last up next week will be Professor Jim Stoner. A bit from the beginning of Professor Levinson's essay:
Professor DeGirolami has written an interesting Liberty Forum essay in behalf of paying respectful attention to tradition as a major aspect of our legal order. However, I think there are two major problems with it. The first is theoretical, particularly in relation to the American political and legal experience. The second has to do with actual practices or examples. The essay, albeit interesting, is written from a lofty perspective; there are too few concrete examples that truly allow the reader to ascertain the implications of his argument. Almost always, when it comes to politics or law, the devil (or saving grace) is in the details, and Professor DeGirolami needs to put more real flesh on his otherwise skeletal argument....
Professor DeGirolami tellingly quotes both Khloe Kardashian and Oliver Wendell Holmes. One is hesitant to embrace Kardashian as a normative exemplar of American culture, and Holmes, of course, has become a central target of those who view “Progressivism” as a defining moment in the decline of that culture and Holmes as a central figure in that decline. So let me offer two other sources that call into question another notion that there was an Edenic period in America when tradition, however defined, reigned before the Fall instantiated in figures like Holmes and Woodrow Wilson.
Consider one of the ur-texts of American political thought, The Federalist. Needless to say, any series of 85 essays, written by three authors in a remarkably short period, will have its share of contradictions. That being said, my own favorite paragraph among the 85 is the conclusion of Federalist 14, which is, among other things, about the virtues of the “extended republic,” in contrast with what might be said to be traditional notions of republican political thought that emphasized the importance of relatively small and homogeneous societies as a prerequisite for republican governance. Publius dismissed such arguments:
Hearken not to the voice which petulantly tells you that the form of government recommended for your adoption is a novelty in the political world; that it has never yet had a place in the theories of the wildest projectors; that it rashly attempts what it is impossible to accomplish. . . . Is it not the glory of the people of America, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience? . . . They accomplished a revolution which has no parallel in the annals of human society. They reared the fabrics of governments which have no model on the face of the globe. (emphasis added)
Tuesday, August 9, 2016
Very interesting interview by my colleague, Mark, about Rusty Reno's new book. Have a look. A bit from the q&a:
You call for “a national culture not dominated by Christians but leavened by them.” Could you say a little more about this? Isn’t there a danger that, in a Christian society, the voices of non-Christians would be excluded and their communities disvalued? Is a Christian society consistent with pluralism?
Reno: One of the great promises of secular progressivism is “inclusion.” The notion of diversity gets a great deal of play. But in actual fact our society today is far more policed than it has ever been, not just in the literal sense of cops on the street, but through groupthink and political correctness. So it seems that secular progressivism preaches pluralism but practices a kind of mono-cultural approach to public life.
The reason for the paradox is simple, I think. Without a transcendent orientation, secular progressivism makes a god of politics. Christianity, by contrast, recognizes that politics, while important, is not ultimate. Jesus said, “My kingdom is not of this world.” St. Augustine distinguished between the City of God and the city of man. For this reason, a Christian society can accommodate pluralism in a way that a supposedly neutral secularism can’t. The social consensus in a Christian society need not be final, as it were. It can be penultimate, and thus more open. Compare that with our current climate. The Obama administration seems unable to countenance any dissent from the sexual revolution. Everybody must participate in gay weddings! Everybody must participate in the contraceptive culture!
Finally, I’d like to say a word about Judaism, Islam, and other religions in contemporary America. For the last century the biggest threat to a Jewish parent trying to pass down his religion to his children has not been Christianity. It has been secularism. For every Jew who has been converted to Christianity there have been thousands upon thousands who have assimilated into our secular, materialist culture. For any believing Jew, the danger is conversion to the pagan religion of health, wealth, and pleasure, not Christianity. Reflective Jews and Muslims recognize this. Rabbi Jonathan Sacks has been quite explicit: a renewal of Christianity in the West would go a long way toward helping Jews sustain their own religious communities against the pagan idolatry of our time.
